It’s Illegal to Use Gender in Jury Selection. That Hasn’t Stopped it From Happening.

Viola Morrow was summoned during the second week of jury selection. The murder trial was so high profile it had been moved from Sampson County, where the crime occurred, to Onslow County 60 miles southeast. 

Defendants Bryan Christopher Bell and Antwaun Kyral Sims faced possible death sentences if convicted on charges that they kidnapped, beat, and burned alive the 89-year-old aunt of a veteran state legislator in her car in 2000. Racial tensions were also threatening to boil over; the two men were Black, while the victim was white. 

Assistant District Attorney Gregory Butler compared Bell and Sims, who were teens at the time of the crime, to “a pack of wild dogs or hyenas” hunting “in the African plain” in his closing argument. (A judge later concluded that Butler had disproportionately excluded Black people from his juries in an unrelated case and had a “history of denigrating Black defendants in veiled racist terms.”)

Morrow, who has since died, was then a 38-year-old self-described housewife with four children and a husband based at Camp Lejeune. She had written in her jury questionnaire that she suffered from rheumatoid arthritis and told Butler that the condition would flare up unexpectedly. 

Butler struck her from the jury, citing her medical condition and Morrow’s concerns about it. When defense attorneys accused him of using race to eliminate Morrow, who was Black, prosecutors initially declined to provide an explanation for her removal from the pool. 

The next day, defense attorneys objected when prosecutors removed another Black potential juror. When the judge asked him to explain, Butler said that he only removed Morrow because of her medical condition. 

It wasn’t until 11 years later that Butler, in a sworn affidavit, gave the real reasons. In a stunning admission, he said he didn’t remove Morrow because she was Black; he removed her because she was a woman. He also said she had children who were about the same age as the two defendants. 

The affidavit was obtained as part of litigation over a law allowing death-row inmates to challenge their sentences because of racial discrimination.

“State was looking for male jurors and a potential foreperson,” Butler wrote in the affidavit. “Was making a concerted effort to send male jurors to the Defense as they were taking off every male juror.”

Their post-conviction attorneys also received Morrow’s juror questionnaire, which contained prosecutors’ handwritten notes saying, “no men yet on panel, & we’ve already seated 10 jurors.” 

In an email last week, Butler denied he removed Morrow because she was a woman, but declined to answer questions about the affidavit when reached by phone. 

“I have nothing further to say,” Butler said. 

Elisabeth Semel, a law professor and co-director of the Death Penalty Clinic at the University of California Berkeley School of Law, said Butler’s admission in the affidavit is startling. It’s the kind of smoking-gun evidence you normally don’t get in jury discrimination cases, she said. 

“It’s very, very unusual to have direct evidence of intent,” Semel said. 

The admission wasn’t enough to overturn their convictions and order a new trial. In March, the N.C. Supreme Court unanimously ruled in two separate opinions that the men’s gender discrimination claims were procedurally barred. Because they had not raised them at trial, the court ruled, they couldn’t raise them in their appeals. And that stands even if the court “recognizes the reprehensible and insidious nature of discrimination in the jury selection process,” said the decision. 

“However, in the faithful application of the laws of this State, this Court cannot ignore the blackletter, statutory, and procedural requirements of the law,” Justice Tamara Barringer wrote in the majority opinion in Bell’s case. Justice Phil Berger Jr. wrote the opinion for Sims’. 

Justices Anita Earls and Allison Riggs reluctantly agreed with the rulings, but Earls wrote separate concurring opinions decrying how state appellate courts have made it nearly impossible for criminal defendants to win on jury discrimination claims. She could not “discern what Bell or his counsel could have done differently to achieve relief under our precedent,” she wrote. 

More than 30 years ago, the U.S. Supreme Court forbade using gender to remove potential jurors, but North Carolina appellate courts have done little to enforce that. Butler’s revelation was so striking that defense attorneys now believe their best shot at getting Bell and Sims some relief is persuading the U.S. Supreme Court to reinforce their decision in the 1994 case J.E.B. v. Alabama. 

In August, the men’s attorneys at the nonprofit law firm Phillips Black filed a petition with the court. Attorney John Mills believes the case should compel a U.S. Supreme Court review. 

“It is remarkable that there is a finding of fact of gender discrimination, but there is no relief,” he said. The court will likely decide whether to take up the case in January. 

Drinking Brandy and Smoking Marijuana

The crime was undeniably brutal. 

On January 3, 2000, Bell, Sims, and Chad Williams, who was also charged with murder in the case, were hanging out at a game room in Newton Grove, a town in Sampson County. Bell was 19. Sims and Williams were 18. 

According to evidence presented at trial, the teenagers were drinking brandy and smoking marijuana when Bell told Sims and Williams he wanted to steal a car so he could get out of town. They spotted Elleze Kennedy coming out of a Hardee’s restaurant. Kennedy, 89, was the aunt of then-state legislator Leo Daughtry, a Republican who held top leadership positions in the General Assembly and served on the University of North Carolina System Board of Governors. 

Bell told the other two that he wanted to rob Kennedy, according to the evidence presented at trial. They followed her home and confronted her. One of them pointed a BB gun at her and demanded her car keys. She threw the keys at the teenagers. She was hit with the gun. After they found the keys, she fought them until Williams punched her. They placed her in the backseat of her car. 

Bell pistol-whipped Kennedy until she was unconscious, and eventually the men put her in the trunk before driving to a trailer where Williams’ cousin lived. Prosecutors said the four men then went to another trailer and smoked marijuana. 

While at the other trailer, Williams told Sims and Bell that he wouldn’t stay with them unless they released Kennedy. Sims and Bell drove off and then came back, telling Williams that they had let her go. 

That wasn’t true. She was still in there, as Williams later learned when he heard sounds coming from the trunk. After several more stops, they drove to a clearing. Williams said he could hear Kennedy moaning.

Williams testified that he asked Bell what was going to happen next. Bell was blunt: “Man, I ain’t trying to leave no witnesses,” he said. “This lady done seen my face. I ain’t trying to leave no witnesses.”

Bell shut the trunk and took off his coat. He used a lighter to set the coat on fire, and then tossed the coat into the car. An autopsy found that while Kennedy had suffered blunt force trauma, she died of carbon monoxide poisoning. 

Williams pleaded guilty and agreed to testify against Bell and Sims. He was sentenced to life in prison without parole. 

On August 14, 2001, an Onslow County jury, consisting of 10 women and two men, convicted Bell and Sims of first-degree murder and other charges. Bell was sentenced to death. Sims is serving life in prison without the possibility of parole. 

Masking Intent

For more than a century after the Civil War, Black people and women were systematically excluded from juries. But in 1986, the U.S. Supreme Court issued its ruling in Batson v. Kentucky, which found that a prosecutor had violated the defendant’s equal protection rights and his right to a fair trial by using what are known as peremptory challenges to eliminate four Black jurors. The ruling, however, didn’t extend to gender discrimination.

In 1994, the U.S. Supreme Court did just that in J.E.B. v. Alabama. The state of Alabama had sued a man in a paternity case in which he denied he was the father. During trial, the state used peremptory challenges to remove nine out of 10 male jurors. The result was an all-female jury.

The man, referred to in the case solely by his initials, lost and appealed, claiming that his 14th Amendment rights had been violated. The U.S. Supreme Court, in a 6-3 ruling, agreed. 

“Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process,” wrote the late Justice Harry Blackmun. 

Yet the two rulings have done little to stop jury discrimination. The late Justice Thurgood Marshall wrote in the Batson decision that ruling would not eliminate jury discrimination–prosecutors would simply make up nonracial reasons to mask their intent. 

Legal experts say that’s exactly what has happened. A UNC-Chapel Hill School of Law study found that out of 114 North Carolina cases decided on the merits, appellate courts never overturned a conviction based on jury discrimination between 1986 and 2016. In 2022, the state Supreme Court overturned the conviction of Christopher Clegg based on a Batson claim, but the ruling was moot because Clegg had already served his sentence. 

The state Supreme Court declined to overturn the conviction of Russell Tucker, a Forsyth County man who claimed that prosecutors used a training document to fabricate nonracial reasons to remove Black jurors from his trial.

And the court denied a petition to review the case of Frank Chambers, a death-row inmate, even though former Rowan County District Attorney Bill Kenerly admitted on the stand that he considered race in jury selection. 

The record is not any better on claims of gender discrimination, said Emily Coward, a law professor and the director of the Inclusive Juries Project at Duke University School of Law. (Coward helped craft the amicus brief that several Duke professors filed in the case.) 

“There has not been any case in North Carolina where a J.E.B. claim has been successful, at least at the appellate level,” she said. 

It’s hard to know exactly why that is, but one reason is a lack of education, Coward said. Many judges and lawyers aren’t as aware of J.E.B. v. Alabama as they are of the Batson ruling, she said. 

Semel said that discrimination against women shows up differently than racial discrimination. Most jury pools are predominantly white with a small percentage of Black people, which makes it easier for prosecutors to eliminate Black potential jurors. 

Women often make up 50 percent of jury pools, so it’s a lot harder to dismiss every female juror with peremptory strikes, Semel said. 

But even in the case of Bell and Sims, prosecutors removed female jurors 3.67 times more often than male jurors, according to an analysis done by Frank Baumgartner, a political science professor at UNC-Chapel Hill. Baumgartner found that prosecutors used 83 percent of their peremptory strikes to remove women. 

And it doesn’t matter how many women end up on the jury; using gender to get rid of even one juror is impermissible under J.E.B., legal experts say. 

“Discrimination does not justify more discrimination,” Coward said. 

Butler doesn’t seem to realize that gender discrimination is legally just as bad as racial discrimination, said Ian Mance, senior counsel for the advocacy group Emancipate NC, which filed an amicus brief in the case: “The fact that he would sign and swear … an affidavit that concedes unconstitutional conduct speaks to his lack of awareness.” 

Butler is retired. In an email late last week, Butler insisted that race and gender had nothing to do with why he removed Morrow. 

“In my affidavit, many years later, as I was looking back over the transcript, I was reminded of the fact that the Defendants’ [lawyers] had by that time removed ALL male jurors presented to them,” Butler wrote. 

He didn’t explain in the email why he mentioned his concern about not having enough male jurors as one of the reasons he removed Morrow. 

He also insisted that he passed a female juror to the defense after removing Morrow. But that’s not what the trial transcript shows. After Morrow was removed, prosecutors then struck a Black female juror. Defense attorneys didn’t object. 

In a phone call, Butler declined to answer questions and hung up. 

‘A Few More Men’

Prosecutors with the N.C. Attorney General’s Office, who have handled the post-conviction appeals in this case, have a different take. 

They argue that Bell and Sims had enough evidence to raise their gender discrimination claims at trial 22 years ago but are barred from doing so now. They also argued that Butler’s affidavit wasn’t “particularly significant.” The N.C. Supreme Court largely agreed with them. 

Nazneen Ahmed, communications director for the N.C. Attorney General’s Office, said the office had no comment due to pending litigation. 

Kimberly Spahos, executive director of the N.C. Conference of District Attorneys, dismisses the idea that prosecutors have been discriminating against jurors based on gender. 

“[The] North Carolina Conference of District Attorneys encourages prosecutors to uphold the highest standards of justice,” Spahos said. “Prosecutors across our state are committed to following the law. The Conference does not promote or condone any practice that treats individuals differently based on gender or any other protected class.”

In the Supreme Court opinion, Barringer points out that on the fourth day of jury selection, Assistant District Attorney G. Dewey Hudson complained loudly that the defense was removing too many male jurors. 

“I’d like to have a few more men,” Hudson said. “I would like to have a representative jury. There ain’t no men.” 

But the complaint was not a formal objection, and the judge made no ruling. 

On the seventh day of jury selection, however, prosecutors did object after defense attorneys sought to remove a male juror, specifically citing the J.E.B. decision. Prosecutors argued that defense attorneys had removed six male jurors, and that this constituted proof that they were discriminating against male jurors. Defense attorneys gave a gender-neutral reason for removing the last male juror, and the judge gave no further rulings. 

Prosecutors never raised the issue of gender discrimination again, but Barringer said that was enough of a basis for defense attorneys to make their own gender discrimination claim back then. 

Earls argues that the legal frameworks of both Batson and J.E.B. don’t work. Even if defense attorneys had raised a gender discrimination claim, there’s no guarantee that it would have succeeded at trial or at the state appellate level. She calls North Carolina an “outlier” because other southeastern states have found Batson violations, and North Carolina has not.

“The majority’s opinion thus makes explicit what the thrust of this Court’s jurisprudence has conveyed for some years: Batson and J.E.B. relief is effectively unavailable on appeal and violations of this constitutional right … cannot be vindicated if not remedied by the trial court during jury selection,” she said. 

And while the defense attorneys were accused of discriminating against male jurors at trial, that doesn’t excuse Butler discriminating against Morrow because she was a woman, said Coward, the Duke law professor. 

That’s why the U.S. Supreme Court should take up this case, she said: “If you can’t find gender discrimination in this case, you won’t be able to find it in any case.”