After learning about North Carolina's Racial Justice Act, a law that aimed to end discriminatory jury selection by allowing defendants to use statistical evidence of racial bias in capital-murder trials throughout the state, Dax-Devlon Ross began investigating how racial discrimination impacts capital-jury selection today. His resulting investigation, “Bias in the Box,” was published in the Virginia Quarterly Review, reported in partnership with The Investigative Fund, now known as Type Investigations, now known as Type Investigations. In this interview, Ross talks about how he cultivated hundreds of primary and secondary sources, the role his racial and legal backgrounds played in the reporting process, and what he thinks the future holds for capital jury selection. —Allison Pohle
Allison Pohle: This is Allison Pohle, and we are talking to Dax-Devlon Ross about his story in the Virginia Quarterly Review called “Bias in the Box.” So, Dax, what inspired you to write this story?
Dax-Devlon Ross: I was inspired by the fact that a Southern state, a state that had a long history of abuse of capital punishment, was the first state to really advance a piece of legislation that was designed to address racial bias in a very, very specific way that has to do with jury exclusion.
Pohle: When did you start reporting the story? After the legislation was passed?
Ross: Yes, I did. The legislation passed in 2009 — I didn't find out about it until 2012, which was around the time the first Racial Justice Act hearing was going on in North Carolina. I didn't find out about it, really, until more than two years after the law was passed.
Pohle: Okay. So you start the story by vividly describing an incident that occurred in 2007, and then throughout the story you describe a lot of events that happened in the past using great detail. Can you talk about how you reconstructed those events to be able to write about them in such a colorful way?
Ross: Yeah, it's the beauty of Google. Anything, I would say, that happens after mid-2000s, you can find lots and lots of little tidbits of stories. So particularly with the Andrew Ramseur story that I was able to piece together, there was specifically information that I received from the attorneys involved, from the family members that I had spoken to and a variety of local news sources that had reported on the incident when it took place. And then of course, for me what I did was look at Google Maps and look at “where did this take place,” “so at this particular gas station, what's its relationship to the highway?” I was able to piece things together that way, but beyond that, I took multiple visits to Statesville, North Carolina, as well, so I was able to actually be in those places and see them and begin to reconstruct them on my own, based on all of this documentation I had put together, reconstruct the events as they unfolded.
Pohle: I know you mentioned attorneys and family members, and also Googling, can you talk a little bit about how you cultivated your sources for this article?
Ross: With most of the people that I spoke to, it was one introduction after another. So I started with some of the attorneys that were pretty prominent in the criminal defense field in North Carolina, and each of them sort of opened one more door for me. Everybody opened one more door and gave me one more person, who was the next person I needed to talk to. A lot of the work I did on the interview part happened really early in the process for me. So it was a matter of calling everyone, being willing to explain what I'm interested in, and listen. And, you know, I think this is an issue that's been so underreported for so long and people were very open and willing to share their experiences and what they know and their contacts. And once they realized that I was coming to them from a place of curiosity and journalistic integrity, they really opened up their Rolodexes and let me in.
Pohle: I know that in addition to talking to many people, you also cite many studies in your article that show how racial discrimination in jury selection impacts the outcomes of trials. Can you talk about the importance of integrating academic research into your reporting?
Ross: You know, I think for me, I come from a somewhat academic background. I have my law background and my masters, as well, and I think in order to really, really write the kind of stories that can move people, you have to understand where people are coming from. And we live in an age of data, an age in which people need to see things corroborated through statistical evidence, so you can be able to tell the story, but you also need to be able to pull back and show how that story is situated within a larger structure, or a pattern, a pattern I would say, of justices. So, I think it was incumbent upon me because what this law, the Racial Justice Act, was about in the first place, was about looking at statistics, was looking at data. It's such a tricky thing. You're not going to get many people who will sit down and say to you, “Yes, I discriminated against somebody.” No one's going to say that in the 21st century, in part because people don't intentionally do it, or they're not believing that their intention is to explicitly do so. Their intention might be to win. Or their intention might be to see the jury, based on their experiences, that they believe will support their point of view. Initially, there had to be a body of evidence that existed, and that existed in Philadelphia in the study that was done in 1997 by David Baldus; it existed in some of the studies that were done by Sam Sommers, who looked specifically at how jury composition impacted outcomes of cases. So there were these great social science studies that already existed that needed to be highlighted, and people needed to see them. Part of my job was to bring that to people's attention.
Pohle: Did you use most of the studies that you found, or were there many more that factored into it?
Ross: When you write a piece like this, my editors were like, “Save it for the book.” The reality is that, as long as this piece is, there is so much that I was not able to put in there. So, one of the things that I was not able to cite was a study that was done by Sam Sommers who I speak about in one sense in the article. He's in there when I talk about a study that he had done at Tufts University in 2000. But there was another one that was even more compelling that we didn't have space for. He actually put together a jury that was based on racial composition and had folks sit and watch a trial, or at least a shortened version of a trial. In the deliberations, he found that, based on the certain composition of the jury, the outcome could be very, very different. What he found was that, the more diversity on the jury, the more issues that were talked about, more accuracy behind the facts. So that was a study that I felt was huge and very important, but we didn't end up finding the space. That was just one example, but there were a couple others, as well.
Pohle: Something that was also interesting that you did was obtain the names of excluded potential jurors. Why did you decide to do that and how did you get their names and track them down? How were you able to gain their trust when interviewed them?
Ross: There's a couple different ways. I have thousands of different pages of jury selection notes. Jury selection is a public process. So I was able to build some relationships with folks at the Center for Death Penalty Litigation, which is in North Carolina. They were, specifically with regard to the Ramseur case, handling the appeal, and as part of that, they had received all of the trial documents. And among those documents were the jury selection notes, and the jury selection transcripts. Interestingly enough, though, John Nelson, who is one of the people I spent a lot of time with and talked to quite a bit. When I received all the thousands of jury selection pages, John Nelson was in it, but I did not know that he was an African American. All I had been told was that there were three qualified African Americans who had been excluded from that jury. I didn't know who they were, so I had to go through a process of elimination by looking at the jury questionnaires and people aren't identified by their race, and looking at the folks who were disqualified because they were not willing to serve on a capital trial or who were disqualified for other reasons. And by process of elimination, I found the people themselves. I found John Nelson and I reached out to him, and he met with me and we built a relationship from there. And the same thing kind of happened with the other folks. It was really a matter of going back to the jury selection notes from years and years ago and digging in, finding names, doing people searches, sending emails, waiting, waiting, waiting, then actually going to North Carolina to sit down with folks.
Pohle: When you made the effort to go there and sit down with them, did that help them open up to you? Or were there any specific interview techniques that you did to gain their trust?
Ross: I think that gaining trust is … I don't know if there's an art to it, but I think a lot of it has to do with, if you're coming on strong, which can often be the case like, “I need this information, I need this information,” are you trying to build a relationship with someone? And are you interested in knowing about their lives? And are you interested in meeting with them in a place that's comfortable for them? And are you interested in having a conversation with them instead of peppering them with one question after another? So I think, for me, as a reporter, but also as a human being in the world, having to do with curiosity about people, I genuinely care about people's well-being and want to make sure that I protect their interests and want to make sure that I've built up that confidence in them before I dive in and ask the hard questions because a lot of that stuff is personal to people. It's an emotional issue and topic for folks. I did have a couple people who didn't want to talk to me, as well, because they were like, “How did you get my information? Don't call me anymore.” I had that happen. They didn't want to build a relationship. So hopefully you get lucky and then when people open up and let you in, just try to respect that.
Pohle: How many times did you go to North Carolina?
Ross:> I would say, over the course of 2012 to early 2014, wow, I'd say I was down there, let's see, one, two, three … about seven times.
Pohle: Okay, wow.
Ross: And they were all for different meetings with different folks, and different interactions at different phases of my own journey. Sometimes I would go down just to sit in on a trial. I would go down just to sit in on a hearing. Other times I would go down for interviews or go down to look at photography. It depended, and I tried to make myself available to people's schedules as well.
Pohle: Switching topics a little bit, you obtained a cheat sheet from a training. Can you talk a little bit about how you found out about this sheet and how you ended up getting your hands on it?
Ross: There was an attorney by the name of Jay Ferguson, and he and I were connected by another attorney who worked with the ACLU's capital punishment project. Both of them were working on one of the RJA appeals at the time. I called him, I would say one day late in 2012, we were having a conversation about upcoming appeals and the decision was still pending and still waiting to hear back from Judge Weeks on the second, third, and fourth RJA appeals. He said something to me that I thought was really important, and it was that the first RJA trial with Marcus Robinson, the whole issue wasn't to “out” any prosecutors. It wasn't to point at people and shame anyone. It was really to take what they called a public health approach. Like, this is a problem that we need to address, and then what happened is there was still this resistance that they were encountering. The cheat sheet became this really powerful piece of evidence that they had, and they acquired themselves, I don't even necessarily know how they acquired it, but they had it as a way to demonstrate that this is what's happening with the rationale for ways to exclude people. Prosecutors were literally practicing ways to avoid being caught in a challenge, so they came up with explanations that would help them circumvent any accusation that they were being racially prejudiced in their selection process. So that was an attorney handing this to me and saying, “Here! Hey look!'
Pohle: You also provide a lot of context into the historical treatment of African Americans in our judicial system. Was there anything you were surprised to learn about, both people who serve on juries or people who are being tried in capital cases?
Ross: I mean, I think the thing that I keep saying to people over and over again, is that, I think there's this really powerful conversation happening in America around mass incarceration and around a broken justice system. But I think if you look at the jury selection process, it was par for the course for a very, very long time, for a person of color, a black man in particular, to be tried by a white jury. That was just the way it was. No matter how many times it was challenged, because it was challenged many, many times, sadly our courts have felt that they can only do so much to address it. What was very important to find out was that, in the days after emancipation, years, I should say, after emancipation, it was very high on the priority of African Americans to be seated on juries because of the fear that they would lose their property. Because that's a way that folks can have their property taken from them. If you can't serve on a jury, if you can't participate in that process, then how can you advocate for, especially if you're living in a part of the country that has such a deep, deep association with slavery and to prejudice, how do you secure your property rights? I think the thing that surprised me is, this has been going on for over 130 years. Folks have been fighting for this right for a long time, and the courts have made efforts to address it, and yet it still continues. And the extent to which you want to investigate and rectify is always being thwarted by those who believe it's not a problem.
Pohle: Do you think that it made a difference for you to report on this story as an African American?
Ross: That's a very interesting question. I think that as a black man whose had his own encounters with the law enforcement, who has people, friends, he's very close to been caught up in the system, a black man who has a law degree and understands and appreciates the way the law can shape your life, I think there was a very deep personal connection for me to want to get into this story. I think it's really important that someone like me takes this story and does this story. What I told someone else is, the reality is, my white allies have been incredibly important. This story doesn't happen without white allies, folks in North Carolina, an editor, the folks who believe in this story because, to be honest, I had a lot of disinterest when I started to really approach this story, and a lot of disinterest came from black publications. It was a lot of indifference, or not necessarily indifference, but it just didn't register for folks. It required a lot of different people to come together to support this. I won't name names, but I went to some organizations that I thought would care about this issue, and they sort of just nodded and said, ”yeah,'“ and nothing happened.
Pohle: Why do you think that is?
Ross: I think that people are sort of numb to things that happen in the South. I think folks will say, ”Oh, that's the South, this will happen.“ And then there are so many issues that people are trying to get attention around that people are trying to focus on, that, this isn't as sexy as voter registration and voter ID laws. It's not visible, but that's probably what makes it more pernicious, is that it's something that happens in the courtroom, it happens behind closed doors, and often people don't want to serve on juries anyways, so you know, ”Who cares?“ But voting is something we have this longstanding civil rights legacy around, so people are very passionate about voter ID laws and passionate that someone would be stripped of their rights to participate in that symbolic process when you could make the argument that, especially at the national level, the federal level, we have questions about what the particular value of our vote is. Especially with Citizens United. So where can we begin to feel really visible? And maybe the courtroom, if we really want to address who's going to jail, who's not going to jail, mass incarceration, maybe we have to think about other strategies. I have a law professor who has been advocating for jury nullification for years, and he's been writing abut jury nullification, or the other alternative, I know that Michelle Alexander wrote a piece a year ago about taking a different approach to sitting on a trial. So I think that there are folks who are beginning to understand that we have to do some disruptive things in the courtroom itself to actually address the challenges that we see happening around criminal justice.
Pohle: Right. At the end of the story, you question what a Racial Justice Act might've done in the trial of Rodney King or in the jury selection for George Zimmerman, and I also know that the events in Ferguson happened just before this story was published. So, did Ferguson bring a new relevance to your reporting or writing process? I don't know where you were in the draft when that happened.
Ross: I think Ferguson, you know, I live in New York, so there was the one, I forgot the gentleman's name, who had been shot in the street by the cops, he was strangled I think, to death. I don't want to sound … I want to be careful how I phrase this. To me, I still feel the reverberations of the Zimmerman trial, so the Ferguson, we haven't gotten to that phase in Ferguson yet. And the film ”Fruitvale Station,“ that's another example of what we're talking about, a shooting happens. It's overwhelming. But I think when it comes to particularly looking at Rodney King, the Zimmerman case, Zimmerman in particular it's like, ”This is incredible! How does this … how does this happen? How does this go down in 2013? Wow.“ I want the piece to feel like, this is localized in North Carolina, but that's only because North Carolina was the one that really tried to address it and look at the data and look at the statistics and have a conversation. Florida? There are serious problems in Florida. There's some data around problems in Florida. There are serious problems in Texas. The Dallas Morning News did a story a few years ago looking at jury selection and who gets on. There are pockets, but it's just, how willing are people to look?
Pohle: So, my last question is, I know we talked a little about this, but what do you think the future holds for our capital jury selection process?
Ross: I think that the reality is that we're moving in a direction where so many states are, in their own ways, turning away from the capital process. I talk about it even in the piece. These voters in North Carolina are becoming less and less enthusiastic about the idea of execution, especially when a life without the possibility of parole exists, and the cost is actually cheaper to do this. It remains to be seen where we go with this at the national level, and at the federal level it's a whole different conversation because there's other stuff there. But I like to believe, at this particular blip in time, this particular story might be a cause to a particular generation of law students as they think about their practice. As prosecutors and defense attorneys, maybe you're a bit more thoughtful about your process. There's a harm that is done when we exclude people from being able to exercise their right. That's a harm. You might win the case, but you've done a harm in order to win that case, and the harm is you've harmed the actual process that we all hold valuable.
Pohle: Right. Well this has been so interesting, and thank you so much for taking the time to talk to me today.
Ross: Yeah! Absolutely.
This interview has been edited.