A Wake Judge Decides This Week Whether a Man Charged With Murder Can Fairly Receive the Death Penalty

North Carolina’s death penalty goes on trial this week in Raleigh.

Prior to 2016, when he was charged with the shooting death of a 28-year-old man in a Northwest Raleigh motel room, Brandon Xavier Hill had a relatively insignificant criminal record.

He was convicted of careless and reckless driving in Durham in 2013. In 2014, charges of going armed to the terror of the public and assault with a deadly weapon were dismissed because of lack of evidence. Charges in March 2016 of assault on a woman and larceny of a firearm were also dismissed, court records show.

In custody at the Wake County jail for the past six years, Hill is now fighting to avoid being sentenced to death by a jury that’s “whiter, more male, and with less religious diversity than the community,” according to a motion filed last month by a team of lawyers who are members of the American Civil Liberties Union’s Capital Punishment Project in downtown Durham.

Hill’s trial begins in September.

The ACLU capital defense attorneys are hoping the motion filed in the Wake County Superior Court will bolster Hill’s chances of staying alive if he’s convicted, by halting a pernicious jury selection process known as “death disqualification,” according to a press release from the North Carolina chapter of the ACLU.

Brian Stull, one of the ACLU attorneys representing Hill, told the INDY this week that the two-day hearing will begin on Wednesday and the motion will be considered by Wake County’s senior resident superior court judge Paul Ridgeway, who will also preside over the capital trial.

Stull added that if Ridgeway denies the motion, Hill’s defense team will consider appealing to the state’s supreme court.

On Wednesday, ACLU attorney Henderson Hill is going to examine UNC-Chapel Hill historian Seth Kotch, who will lay out the racist history of the state’s use of the death penalty and how it intertwines with lynching, according to a summary of the case sent to the INDY by the Center for Death Penalty Litigation in Durham.

On Thursday, Hill will present the testimony of Kami Chavis, a nationally known criminal justice expert and law school professor at the College of William & Mary.

The case summary says Chavis “will testify to all the current-day racial inequities that make support for the death penalty lower in the Black community.”

“The ACLU’s motion argues that because death disqualification impermissibly excludes jurors based on race, gender, and religion, it will violate Mr. Hill’s rights under the U.S. and North Carolina Constitutions,” the ACLU press release states.

The ACLU release says the state’s prosecutors have used “death disqualification” to certify community members who are more likely to impose the death penalty to serve on capital juries.

“This means jurors who object to the death penalty are not able to serve on capital juries,” the release states.

Wake County district attorney Lorrin Freeman declined to comment about the Hill case currently pending in court.

But, speaking generally, she says there are many legally sound reasons that an attorney may strike a juror.

“It is false to suggest that there is any systematic effort to exclude jurors based on race, gender, or any other category,” Freeman told the INDY this week.

According to the motion, the ACLU attorneys contend that “the removal of community members from capital juries under the rubric of ‘death qualification’ is an antiquated, discriminatory, unfair, and unconstitutional practice that Brandon Hill … moves to bar at his capital trial.”

The ACLU attorneys argue in the court affidavit that the practice “removes jurors who come to this courthouse willing and able to participate in our democracy in the most serious cases.”

As a consequence of the practice, “Black Americans, women, and people of faith—specifically Catholics—are disproportionately excluded from serving on capital juries,” the attorneys state in the 295-page motion.

Not unlike the gerrymandered electoral process that has resulted in a Republican-dominated General Assembly in Raleigh, so-called “death qualified juries” reflect “a gerrymandered slice of the community, not a cross section,” according to the motion.

Predictably, death-qualified juries “are more likely to convict and more likely to impose death,” even though the practice “skews both the demographics and the attitudes of juries in capital trials.”

The result, the ACLU attorneys argue, are perverse outcomes as a consequence of seating capital juries that are “the least diverse and least impartial.”

The motion points to a new 46-page study by the Michigan State University (MSU) College of Law that examines a decade of capital jury selection in Wake County cases that “demonstrates the toll of death disqualification.”

The study shows, the attorneys state in the ACLU motion, “that death disqualification in [Wake] county’s last 10 capital trials excluded Black potential jurors at twice the rate of white jurors, and Black women at significantly higher rates.”

However, only one of those 10 cases resulted in the jury recommending the death penalty—for Seaga Edward Gillard, Brandon Hill’s accomplice, who in 2019 was sentenced to death row.

When the INDY pointed out that only one of the 10 cases reviewed by the MSU study resulted in a death sentence, Stull credited those outcomes to the vigorous defense of the accused despite the unfairness of the death disqualification practice and to Freeman “seeking death at an aggressive rate that is out of step with her community.”

Stull added that the death disqualification process, geared supposedly at giving the state “a fair shot at the death sentence, is the ‘tail wags the dog of the determination of guilt versus innocence.’”

“Our client Brandon Hill is presumed innocent,” Stull explains. “Death disqualification will result in a less diverse jury, and we know that less diverse juries deliberate less thoroughly, question the evidence less vigorously, while crediting police officers more readily and convicting more frequently. If the state is allowed to gerrymander Mr. Hill’s jury, and exclude significant voices in his community, then his right to a fair and impartial jury on the question of his guilt will be compromised.”

The study also revealed that “Wake County prosecutors further rid the jury of Black Americans and women with a second tool—peremptory strikes—removing Black prospective jurors more than twice as often as white, and Black women at the highest rate of all.”

“In total, with these two procedures, prosecutors rid the jury of over forty percent of Black potential jurors, while also disproportionately excluding people of faith and Catholics,” the ACLU attorneys state in the motion.

Moreover, women oppose the death penalty at greater rates than men and as a consequence “are underrepresented on capital juries,” while “people of faith, especially Catholics,” even though they are well represented throughout the state and Wake County, “are not well represented on North Carolina juries,” according to the motion.

The study’s findings about race are troubling.

According to the motion, “removing Black jurors skews juries in favor of conviction, while death qualification skews juries in favor of conviction and execution.”

The MSU study review of capital trials in Wake County between 2008 and 2019 found that among the 485 jurors excused for hardship, the most frequent reason for exclusion was for death disqualification and additional reasons; “the second most frequent exclusion was for death disqualification alone,” according to the ACLU motion.

On a late Friday morning in 2016, while working as a staff writer with The News & Observer, I arrived at a Northwest Raleigh motel where, hours before, police had found a young pregnant mother and the father of her children shot dead in a room.

Police found the slain couple, April Lynn Holland, 22, and Dwayne Garvey, 28, in a second-floor room at the Americas Best Value Inn at 3921 Arrow Drive off Blue Ridge Road near Crabtree Valley Mall, before dawn on December 2. The next day, police charged Gillard, 28, and Hill, then 29, with first-degree murder.

Investigators accused Hill of shooting Garvey. Police say Gillard shot Holland, who was four months pregnant.

Gillard is now on the state’s death row, where he was charged with a “high-risk act” in July and with assault with a weapon in 2020, according to the state department of public safety website.

Gillard, whose name also appears as “Gaillard” on federal documents, had terrorized women before. One week before the fatal shootings of Holland and Garvey, he appeared in court on charges of robbery with a dangerous weapon, first-degree kidnapping, first-degree forcible sexual offense, and assault by strangulation, after police accused him of raping a woman while brandishing a handgun two months earlier and stealing her cell phone, wallet, and an identification card. The woman told police that Gillard wrapped a phone cord around her neck.

Federal records show that he was convicted in the Virgin Islands in 2007 of third-degree domestic violence assault.

Gillard was also charged with attempted murder in 2011, following the shooting of two men at a Durham apartment complex, but prosecutors dropped the charges because of insufficient evidence, state records show.

Gillard and Holland were old acquaintances, Garvey’s older brother, Dwight Garvey, and sister in-law, Ravien Garvey, of Raleigh told me in 2016. “Her past came back to haunt her,” Dwight said.

The Garveys would not discuss the nature of Holland and Gillard’s past relationship.

“What we can say is Dwayne [Garvey] died defending the love of his life,” Ravien said.

Holland and Dwayne Garvey first met in late 2011 when they were both living at the Pines of Ashton apartments near WakeMed hospital. Dwight said his brother and Holland became friends, but that friendship turned into love. The couple’s families did not readily accept the interracial romance between a white woman and a Black man.

“He was defying everybody for her, and she was defying everyone for him,” Ravien said.

Dwayne Garvey and Holland were awaiting the birth of their fourth child. At the time of their deaths, they were the parents of three toddlers: two boys, ages two and one, and a three-year-old daughter.

Meanwhile, Hill “does not ask for the inclusion of any specific jurors,” the ACLU attorneys state in the motion. 

“He seeks only to avoid the discriminatory culling of the jury to exclude large segments of the population.” 

Editor’s note: An earlier version of this story incorrectly attributed quotes from a case summary and a press release to spokespeople for the Center for Death Penalty Litigation and the ACLU of North Carolina respectively. The story has been updated to reflect that the information is attributed to the organizations’ case summary and press release shared with and reviewed by the INDY, and not to the spokespeople specifically. 

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Follow Durham Staff Writer Thomasi McDonald on Twitter or send an email to tmcdonald@indyweek.com.