NC case shines rare light on sexism in death penalty jury selection

CDPL Attorney Elizabeth Hambourger, expert on death penalty jury selection
CDPL Attorney Elizabeth Hambourger

CDPL attorney Elizabeth Hambourger has studied the ways that stereotypes affect who sits on death penalty juries in North Carolina criminal cases. In this guest post, she writes about a new case of jury bias making its way through the state’s courts.

By Elizabeth Hambourger

Until the middle of the 20th century, the law barred women from jury service. The myth was that women are weak and overly emotional, not rational enough to serve on juries.

A brief filed in late September in a North Carolina death penalty case shines a rare light on the persistence of sexist stereotypes in the legal system. Bryan Bell was sentenced to death in Sampson County in 2001. In 2010, he filed a claim under the Racial Justice Act, citing statistics that revealed a sweeping pattern of race discrimination in capital jury selection. The prosecutor in Bell’s case, Greg Butler, excluded several black citizens from Bell’s jury. Among them was an African American woman named Viola Morrow.

In response to the statistical pattern revealed by the RJA, Butler submitted a remarkable affidavit. To defend himself from the charges of race discrimination, Butler explained that he struck Morrow from the jury, not because she was black but because she was a woman. Butler said he rejected Morrow because he “was looking for a male juror and potential foreperson.” In another capital trial, Butler confessed that he excluded two women because he was “looking for strong male jurors.”

It‘s unconstitutional for a lawyer to use either race or gender as a factor in jury selection. In 1994, in J.E.B. v. Alabama, the Supreme Court rejected the very type of sexist reasoning Butler expressed in his affidavits: that women are not “strong” enough for jury service, that women are not capable of handling the leadership role of foreperson.  The Court said it would not tolerate jury strikes based on these “invidious, archaic, and overbroad” stereotypes.

In J.E.B., the justices also recognized that, if they condoned jury discrimination on the basis of gender, lawyers might use it as a way to disguise race discrimination in jury selection.  It certainly seems possible that’s exactly what Butler was trying to do when he crafted his affidavit. But whether based on race or gender, his actions were not only unacceptable but illegal.

The only way to stop such blatant discrimination is for courts to overturn convictions when it happens. Unfortunately, North Carolina appellate courts have a shameful record when it comes to policing jury discrimination: they have never overturned a single conviction on grounds that a juror was discriminated against on the basis of race or gender. But Bell’s is the unusual case in which a prosecutor openly admitted discriminating. If Butler’s affidavit doesn’t prove discrimination, what does? Nevertheless, the first court to consider the affidavit simply ignored it and upheld Bell’s conviction.

Now our state Supreme Court has an opportunity to make clear that women belong on North Carolina juries and that our state will not tolerate discrimination on the basis of misogynistic myths. Significantly, three of the seven Supreme Court justices hearing the case will be women, the most women ever to serve on our Court at once. One might well wonder whether prosecutor Greg Butler thinks these accomplished women are “strong” enough to be Supreme Court justices.  Of course, this time, they’ll be the ones judging him.