Carolina Criminal Defense & DUI Lawyer UpdatesThis case is a reminder: if you’re raising a claim of sexual discrimination in jury selection, the challenge must be made clearly and at the right time—or it may be lost forever. The decision also highlights how hard it is to get relief on these issues after conviction.
Here’s what we’ll cover in this post:
- Preservation of Constitutional Jury-Selection Claims
- Procedural Default on Post-Conviction
- Why Bell’s J.E.B. Claim Was Unpreserved and Barred
- “Good Cause” and “Actual Prejudice” – Exceptions to the Bar
While the case is a post-conviction matter, questions about jury selection—and the fairness of the trial process—come up regularly in trial-level criminal cases throughout North Carolina. If you’re facing charges in the Charlotte region, the Powers Law Firm helps clients understand what to expect in court and how the jury process works.
Text or call 704-342-4357, or email Bill Powers at Bill@CarolinaAttorneys.com.
Sexual Discrimination During Jury Selection: Preservation of Constitutional Claims
Equal Protection and Peremptory Strikes
Under federal law, the Equal Protection Clause forbids using peremptory challenges to exclude jurors solely because of their gender.
A defendant has the right to object if the State exercises strikes in a discriminatory manner.
However, to invoke this right, the defendant must timely raise a Batson/J.E.B. objection during jury selection. If the defense does not object and make a prima facie claim of discrimination at that time, the trial court is given no chance to rule on the issue, and the claim is typically waived for appeal.
North Carolina v Bell: Gender Discrimination
In Bell’s trial, his counsel never objected on gender discrimination grounds when the prosecution used peremptory strikes. Because Bell did not assert a J.E.B. challenge at trial, the issue was not preserved in the record for direct appeal.
North Carolina precedent holds that a defendant who fails to object to alleged discriminatory jury strikes at trial cannot later argue that issue on appeal, absent extraordinary circumstances.
A timely objection creates the record needed to evaluate a claim. If no objection is made, the opportunity to scrutinize the strike is lost, and the appellate courts will not ordinarily review the claim.
Legal takeaway: Constitutional objections—including Equal Protection challenges to peremptory strikes—must be raised at trial. For trial practitioners, this means monitoring the State’s use of peremptories and objecting at the moment if there are indications of race or gender bias. For clients, if such an objection is not made at trial, it will be very difficult to resurrect that claim later.
Procedural Default on Post-Conviction Allegation of Sexual Discriminal During Jury Selection
North Carolina’s Motion for Appropriate Relief Bar
When a defendant later seeks relief via a Motion for Appropriate Relief (MAR), North Carolina law imposes a procedural default rule: claims that could have been raised at trial or on direct appeal but were not are generally barred from being heard on a MAR. N.C.G.S. § 15A-1419(a) lists grounds requiring denial of an MAR.
Application to Bell’s J.E.B. Claim
The NC Supreme Court agreed with the State that Bell’s gender-based discrimination challenge was procedurally barred under these rules.
Because Bell never objected at trial, the issue was not considered on direct appeal.
He was “in a position” to raise the gender-bias claim at trial and on appeal, but did not. Accordingly, any MAR claim based on J.E.B. could be denied outright.
The Court noted that the purpose of this rule is to promote finality and prevent defendants from holding back claims.
Legal takeaway: North Carolina’s post-conviction procedure strongly disfavors “late” claims. If a claim—like a Batson/J.E.B. jury selection challenge—was not raised at trial, the MAR statute will treat it as having been waived or otherwise defaulted. For attorneys, this serves as a reminder of the importance of raising viable constitutional issues at trial and on direct appeal. For clients, it means that failing to bring up an issue earlier can forfeit it forever.
Why Bell’s J.E.B. Claim Was Unpreserved and Barred
Unpreserved at Trial
The Supreme Court emphasized that Bell’s trial record contained no J.E.B. objection. Because no such objection was made, the trial court made no rulings or findings about gender discrimination.
This failure to preserve meant Bell waived the J.E.B. issue for direct appeal. On direct appeal, Bell argued that the prosecution struck Black jurors because of race, but the gender composition of the jury was not challenged on appeal since it hadn’t been challenged at trial.
Procedurally Barred on Motion for Appropriate Relief
When Bell later tried to raise the gender-based discrimination issue in his MAR, the State argued—and the Court agreed—that he was procedurally barred from doing so. Under § 15A-1419(a)(3), Bell had a full opportunity at trial and on appeal to press the J.E.B. claim, and he did not. Consequently, the post-conviction courts refused to consider the merits of the J.E.B. claim.
Practical impact: A defendant cannot save a jury discrimination claim for later—it must be raised promptly. Even if compelling evidence of discrimination comes to light after trial, the courts will ask: was this claim available to be made earlier? If it was, it cannot be revived years later.
“Good Cause” and “Actual Prejudice” – Exceptions to the Bar
Good Cause: To show “good cause” under § 15A-1419, a defendant must prove a valid reason for the failure to raise the issue earlier. This might include some State action that violated the defendant’s constitutional rights or newly discovered facts that could not, with reasonable diligence, have been found in time for an earlier motion or appeal. Bell could not satisfy these conditions.
Actual Prejudice: Even if good cause is shown, the defendant must show “actual prejudice” from the alleged error. The statute’s definition of “actual prejudice” is stringent: the defendant must prove that the error worked to their “actual and substantial disadvantage” and created a reasonable probability that, had the error not occurred, the outcome of the trial or sentencing would have been different. The Court found that Bell could not meet this burden.
Bottom line: These exceptions are narrow and seldom overcome procedural bars in North Carolina. Even if a court later finds discriminatory strikes, it may still deny relief if the claim was not brought up at the proper time.
Dissenting Opinion – Critique of Batson/J.E.B. Framework and NC’s Post-Conviction Approach
The dissenting justice voiced serious concerns about the outcome and the legal framework that produced it. Key points from the dissent include:
Shielding Unconstitutional Conduct
The dissent argued that the majority Court’s rigid application of preservation and procedural default rules in this case effectively condoned a proven constitutional violation. The trial judge on remand found compelling evidence that the State struck a juror because she was a woman, which was improperly motivated by a gender discriminatory intent in violation of the Equal Protection Clause.
In the dissent’s view, allowing a conviction and death sentence to stand when knowing jury selection was tainted by discrimination undermines public confidence in the justice system and the guarantee of equal protection. The dissent emphasized that Batson and J.E.B. were intended to prevent exactly that kind of discrimination and that the judiciary has a duty to ensure those constitutional mandates are enforced, even if doing so requires flexibility in procedural rules.
Batson/J.E.B. Framework Flaws
The dissent took a broader view, critiquing the Batson/J.E.B. framework as inadequate in practice, especially in North Carolina. One issue is that Batson relies on defense attorneys to detect and object to bias in real time. Human error or reluctance can result in a valid claim being missed – as likely happened in Bell’s trial, where counsel focused on racial bias and overlooked the gender pattern.
The dissent points out that if a trial attorney fails to raise a Batson/J.E.B. objection, even strong evidence of discrimination may never be heard. North Carolina’s appellate courts historically have a record of not granting relief in Batson cases (for many years, few, if any, convictions have been reversed on a Batson violation, despite evidence of discriminatory jury strikes). The dissent suggested that the “impossibly high bar” imposed on defendants raising jury discrimination claims has made Batson/J.E.B. rights difficult to vindicate.
By strictly enforcing procedural default, the majority’s approach, according to the dissent, injects yet more confusion and arbitrariness into an already fraught area of law – effectively telling defendants that even if they uncover clear proof of discrimination, it may be too late to do anything about it.
Cause and Prejudice Reconsidered
The dissent would have found good cause and prejudice in Bell’s case or would have relaxed those requirements, given the unique circumstances.
On “good cause,” the dissent notes the defendant only obtained the smoking-gun evidence of gender bias (the prosecutor’s affidavit and notes revealing a strategy to pick men) years after the trial. From the dissent’s perspective, these newly surfaced facts justified revisiting the issue, because a defendant cannot be expected to prove a prosecutor’s secret intent without such evidence.
At a minimum, the dissent argued, the failure to raise J.E.B. was a serious error that should qualify as cause – after all, effective representation in a capital murder trial should include objecting to overt patterns of juror discrimination.
On “actual prejudice,” the dissent took a different view of prejudice in the Batson/J.E.B. context. Rather than requiring a showing that the verdict would have changed, the dissent stressed the intangible but profound harm caused by discriminatory jury selection.
Citing J.E.B. and other precedents, the dissent sets forth that gender discrimination in jury selection inflicts harm on the excluded juror, undermines the fairness of the trial, and casts doubt on the integrity of the judicial process.
Remedy and Justice
Ultimately, the dissent would have granted the defendant a remedy – likely a new trial – in light of the unrebutted evidence that the State violated J.E.B. during jury selection. The dissenter warned that the Court’s refusal to act leaves a constitutional violation with no remedy, contrary to the principle that where there is a right, there must be a remedy.
In a capital case, the stakes are life and death; the dissent argued that finality should not trump fundamental fairness when a death sentence was imposed by a jury selection process later shown to be biased. The dissenting justice called on the Court (and perhaps the legislature) to re-examine North Carolina’s post-conviction procedures for addressing jury discrimination, suggesting that the law should provide a meaningful avenue to correct Batson/J.E.B. violations even if they surface belatedly.
By highlighting these concerns, the dissent shines a light on the tension between procedural rules and substantive justice: strict procedural default promotes efficiency and finality, but it can also bar relief for serious constitutional wrongs that emerge after the fact.
Sources:
- N.C.G.S. § 15A-1419(a)-(e) procedural default rules for MARs.
- State v. Bell, 359 N.C. 1, 603 S.E.2d 93 (2004) – Direct appeal, discussing Batson race challenge
- J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) – Equal Protection Clause prohibits peremptory strikes based on gender
- State v. Hobbs, 374 N.C. 345, 841 S.E.2d 492 (2020) – Preserve Batson claims and standard of review
- State v. Campbell, 384 N.C. 126, 882 S.E.2d 160 (2023) (Earls, J., dissenting) – Critiquing limitations on Batson enforcement
- Carolina Journal, State high court weighs gender discrimination jury claims… (Apr. 9, 2024) – Summary of oral arguments and positions of parties
Timing Is Everything: Preserving Jury Selection Challenges in North Carolina
North Carolina v. Bell is a reminder that even serious concerns—like possible gender discrimination in jury selection—can be dismissed if they aren’t raised clearly and at the right time. The Court didn’t weigh in on whether discrimination actually occurred. Instead, it focused on when and how the issue was brought up. Once a case moves into post-conviction, the rules get much stricter, and claims that might have mattered at trial can be barred from review.
If you’re facing criminal charges, questions about jury selection aren’t just theoretical—they come up in real courtrooms across North Carolina. The Powers Law Firm helps clients understand what to expect and how to protect your rights during jury selection.
Call or TEXT 704-342-4357, or email Bill Powers at Bill@CarolinaAttorneys.com if you’d like to see if our legal team is available for representation. We help clients in the Charlotte metro region, including Iredell, Union, Gaston, Mecklenburg, Lincoln, and Rowan County NC.