The 1955 jury that voted to acquit two men who later bragged about lynching Emmett Till was captured in this iconic photograph. The image is a classic depiction of an unrepresentative jury: all white and all male.
When he was 18 years old, Bryan Christopher Bell, along with 17-year-old Antwaun Sims and 16-year-old Chad Williams were arrested for killing Elleze Kennedy, an 89-year-old white woman. The State sought the death penalty. At trial, the prosecutor referred to the three Black teens as “predators of the African plain.”
During jury selection, the prosecutor dismissed Black citizens summoned for jury duty at more than triple the rate he struck other prospective jurors. Defense counsel objected and argued the State was excluding Black potential jurors because of their race. The prosecutor denied this accusation and said he was concerned about other characteristics, including health problems that might make jury service a hardship. The trial judge accepted the prosecutor’s explanations and moved on. The jury that sentenced Bell to death included only two Black jurors in a county that is 25 percent African American.
Years after the trial, the prosecutor gave a sworn affidavit admitting the real reason he struck a Black woman named Viola Morrow. In the prosecutor’s own words, he was “looking for male jurors” and a “potential foreperson.”
By this time, Bell had lost his claim that race discrimination shaped the composition of his jury. Armed with direct evidence of the prosecutor’s discriminatory motive, Bell filed a new appeal arguing that he was entitled to relief because the State struck Morrow based on unconstitutional gender discrimination. When the prosecutor openly admits to discrimination, the defendant should prevail, right? Not so fast.
A few weeks ago, the North Carolina Supreme Court issued an opinion on Bell’s gender discrimination claim. Here are some excerpts from that opinion:
This Court recognizes the reprehensible and insidious nature of discrimination in the jury selection process.
The prosecutor made numerous statements about the State’s desire to have men on the jury. This is direct evidence of the prosecutor’s intent.
The jury selection transcript reveals pointed statements baldly communicated by the State — in open court — that it wanted to place more men on the jury at the expense of seating women.
The State vocalized its dissatisfaction with the number of women that had been seated . . . stating, “we have nothing but seven white women — seven women on the jury now, and we are entitled to have a jury that’s representative of the community.”
The Court also noted that the prosecution used a statistically significant number of its strikes – 83% — to exclude women. The Court noted as well the “disparate treatment and questioning” of Morrow and two male potential jurors. The prosecutor claimed he struck Morrow because she had serious health concerns but the State accepted two men with similar medical issues.
So after all these years, Bell got relief, right? Not so fast.
Rather than demonstrating genuine concern about the reprehensible and insidious nature of jury discrimination, the Court hid behind a morass of procedural rules and inconsistent reasoning to avoid remedying this constitutional wrong. The Court made much of the fact that the prosecution team engaged in lots of sexist banter during jury selection. The Court concluded that, in light of these gendered remarks, the prosecutor’s sworn affidavit admitting he struck Morrow for an unconstitutional reason was insignificant. Never mind that the prosecutor concealed his real reason for striking Morrow from the trial judge. Apparently, if prosecutors successfully hide their discriminatory intent long enough, there can be no remedy.
The majority also chastised Bell’s trial attorneys for not objecting to the State’s gender discrimination at trial. Of course, trial counsel did object to race discrimination based on similar evidence of statistically significant disparities, differential questioning, and disparate treatment. They specifically objected to the State’s exclusion of Morrow. This objection went nowhere in either the trial court or the North Carolina Supreme Court.
This kind of gamesmanship with constitutional rights seriously undermines public trust in equal justice under the law. The majority quoted the United States Supreme Court’s admonition that,
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. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings. Discriminatory use of peremptory challenges may create the impression that the judicial system has acquiesced in suppressing full participation by one gender or that the deck has been stacked in favor of one side.
If only our Court believed this. Or cared.
