The District Attorney’s Office is considering the next steps in the wake of a judge’s ruling last month that the dismissal of a juror in the lead-up to a 2001 capital trial of two men in the murder of an elderly Newton Grove woman was “improperly motivated by a gender discriminatory intent” by the state.
”This office is consulting with the Office of the Attorney General to determine what appellate action, if any, should be taken as to the trial court’s order,” District Attorney Ernie lee told The Independent this week.
A joint evidentiary hearing was held over two days in December 2022 in Onslow County Superior Court with Senior Resident Superior Court Judge Charles H. Henry presiding. The judge issued his “findings of fact and conclusions of law” late last month with the Supreme Court of North Carolina.
Henry cited “direct evidence of discriminatory intent as well as the additional cumulative weight of the circumstantial evidence tending to show purposeful discrimination” in coming to his conclusion.
“The defendants produced sufficient evidence to permit the court to draw an inference that intentional gender discrimination had occurred during jury selection by the state,” the judge stated, specifically pointing to the dismissal of a juror and notes and statements made by state prosecutors that he said showed an “inherent gender discriminatory intent.”
The judge did not order a remedy for the violation — whether a retrial or another recourse at the time. Lee said he was in contact with the Attorney General’s Office again on Monday about the matter.
“The state has the option of requesting an appellate review and if that is not pursued or granted, the court could order a new trial for both defendants,” the District Attorney said.
In August 2001, the defendants Antwaun Kyral Sims and Bryan Christopher Bell were convicted as co-defendants of, among other charges, first degree murder. After a capital sentencing hearing, the jury recommended a sentence of death for Bell and life without parole for Sims in the death of Newton Grove resident Elleze Kennedy, who was kidnapped from her home on Jan. 3, 2000, and beaten.
The 89-year-old was ultimately placed in the trunk of her 1998 Cadillac, driven around and the car burned at the end of a dirt path down a wooded path off Ira B. Tart Road while Kennedy was still alive. Kennedy was found dead in her charred Cadillac the next day.
A third suspect, Chad Lamont Williams, implicated himself, Sims and Bell in the crime, testing during the 2001 capital murder trial. Sims and Bell did not take the stand. In a separate proceeding in October 2001, Williams was also sentenced to life in prison.
Bell was 19 at the time of the murder. Sims and Williams were 18 years old. Bell and Williams are now 41. Sims is 40.
In preparing the findings, the judge considered the trial transcript of the jury selection, consisting of 2,502 pages, juror questionnaires, pre-hearing briefs with attachments submitted by all the parties, testimony and exhibits offered at the hearing, and oral arguments made at the conclusion of the hearing and post-hearing briefs.
The trial began in July 9, 2001 with jury selection, which was concluded on July 25, 2001 before Judge Jay D. Hockenbury. The State of North Carolina was represented by District Attorney Dewey Hudson and Assistant District Attorneys Greg Butler and Bob Roupe. Bell was represented by attorneys Terry Alford and David Braswell. Sims was represented by attorneys Carl Ivarsson and George Franks.
Twelve jurors were selected along with four alternates to hear the case. During the course of the selection, which was extended over 12 days in July 2001, a total of 92 jurors — 52 females and 40 males — were called into the jury box to be examined by the court and the parties. Twenty-two jurors were struck for various causes, 11 males and 11 females, leaving 71 eligible jurors. Of those, 41 were female and 30 were male.
A peremptory strike is a party’s right to remove a potential juror without giving a reason. Each party has a specified number of such strikes to use during jury selection and an unlimited number of challenges for cause which are used when the party believes the potential judge cannot be impartial.
The state used 24 peremptory strikes — 20 on women, four on men — leaving 47 eligible judges: 21 women and 26 men.
“This is a substantively important transformation of the jury pool,” stated Frank R. Baumgartner, a distinguished professor of political science at UNC-Chapel Hill, who reviewed data on the use of state peremptory strikes in his capital trial at the request of Bell’s attorneys. “In my professional judgment, there is no question about the differences in the rates of state peremptory strikes by gender: they are very important substantively, highly statistically significant, and they changed the gender composition of the jury pool.”
“The answer to the question of whether gender was an important factor in state use of peremptory strikes is a resounding yes,” the professor stated.
Defense attorneys also pointed to statements made by the state during the selection process.
The jury selection transcript showed the state’s concern about the defendants’ peremptory challenges of male jurors. There was also a note on one of the juror questionnaires — the dismissal of whom was key in the judge’s ruling — that lamented no males on a jury where already 10 females had been seated.
The state dismissed the black female juror after she made comments that her Rheumatoid arthritis might be a detriment in jury service. In notes made in the margin of her questionnaire by the state, it seems a list of reasons why she should not be selected, it cited her arthritis, that she had children the age of the defendants and that there were no males on the jury.
The state’s concern of no men on the jury was expressed as early as the fourth day of jury selection when a prospective male juror, in a note to the judge, asked that he be placed on a later panel so that he could go out of state on a pre-planned trip. By that time, six jurors have been selected, all female. The parties discussed his request, and the state wanted him to be moved to an earlier date for consideration.
The state’s rationale for that request was revealed in a short exchange with the court by DA Dewey Hudson: “I’d like to have (a) few men. I would like to have a representative jury. There (sic) ain’t no men.”
On the seventh day of jury selection, the defense used a peremptory challenge to remove a white male juror without asking him any questions. By this time, the defendants had removed peremptorily all six male judges passed to them by the state.
In an exchange with the court, the state argued that they are “entitled to have a jury that’s representative of the community. As the court is aware, we have nothing but seven … women on the jury now, and we are entitled to a jury that’s representative of the community. I don’t think it’s fair for them to be able to take off all the men off the jury, and the case law supports that.”
Judge Henry pointed to those statements and others, along with Baumgartner’s analysis, in making his ruling.
“This concern about the number of females being seated on the jury, explains why the state would make a concerted effort to remove female judges from being seated in the remaining open seats on the jury,” the judge stated. “It was more likely than not that the state’s peremptory challenge of (the female juror) was motivated in a substantial part by a gender discriminatory intent.”
None of the attorneys involved in the original trial of the case were called as witnesses for December’s hearing. Butler was subpoenaed, but his subpoena was withdrawn shortly before the hearing.
Editor Chris Berendt can be reached at 910-592-8137 ext. 2587.