Criminal Practice — Jury & Jurors – Judge’s Comments – Structural Error – Race & Religion

When an African-American member of the jury pool said his Baptist religion wouldn’t let him decide the defendant’s guilt, the trial judge, while excusing that juror, made comments chastising African-Americans for not being willing to sit on juries, and she said that her own Baptist religion did not prevent her from deciding whether the state had met its burden of proof. The state concedes that this was structural error.

Defendant is entitled to a new trial.

The judge said, “Okay. I’m going—we’re going to excuse him for cause, but let me just say this, and especially to African Americans: Everyday we are in the newspaper stating we don’t get fairness in the judicial system. Every single day. But none of us—most African Americans do not want to serve on a jury. And 90 percent of the time, it’s an African American defendant. So we walk off these juries and we leave open the opportunity for—for juries to exist with no African American sitting on them, to give an African American defendant a fair trial. So we cannot keep complaining if we’re going to be part of the problem. Now I grew up Baptist, too. And there’s nothing about a Baptist background that says we can’t listen to the evidence and decide whether this gentleman, sitting over at this table, was treated the way he was supposed to be treated and was given—was charged the way he was supposed to be charged. But if your—your non-[denominational] Baptist tells you can’t do that, you are now excused.”

Although defendant failed to object, we elect to review the merits of his argument pursuant to N.C. R. App. P. 2.

Defendant argues the trial court’s statements “intimidated the jurors from exercising their beliefs, free will, or judgment throughout the remainder of jury selection and the trial” and “also surprisingly interjected race into this matter.”

The trial court’s interjection of race and religion could have negatively influenced the jury selection process. After observing the trial court admonish one prospective juror in an address to the entire venire, other potential jurors—especially African American jurors—would likely be reluctant to respond openly and frankly to questions during jury selection regarding their ability to be fair and neutral, particularly if their concerns arose from their religious beliefs. We hold the trial’s statements constituted structural error and award defendant a new trial.

Dissent

(Dillon, J.): It may be true that a judge’s comments that affect the impartiality of the jury may constitute error, even constitutional error. However, such comments do not constitute “structural error.” That is, such comments are not per se reversible. Rather, there must be an analysis concerning the prejudice caused by the comments.

Further, structural error should be preserved at trial. Defendant had the opportunity to object to the trial judge’s comments and ask for a continuance, where a new jury pool would be available, but no objection was made. And defendant has not articulated how manifest injustice would result by our court refusing to invoke Rule 2 to consider his unpreserved constitutional arguments.

Assuming we were to reach defendant’s arguments concerning the trial judge’s inappropriate comments, I do not see how the comments were prejudicial against defendant. I do not see any likelihood that someone remained on the jury who abandoned his/her presumption that defendant was innocent based on anything the trial judge said. Also, I do not see any likelihood that her comments caused someone to be seated on the jury who was prejudiced against defendant, who would have otherwise spoken up about his/her prejudice but for the trial judge’s comments.

Defendant had a fair trial, free from reversible error.

State v. Campbell (Lawyers Weekly No. 011-213-21, 17 pp.) (Donna Stroud, C.J.) Appealed from the Superior Court in Guilford County (Lora Christine Cubbage, J.) Thomas Campbell for the state; Anne Bleyman for defendant. 2021-NCCOA-563