Amicus Curiae Brief — Bryan Christopher Bell, Petitioner v. North Carolina

No. 25-5469

IN THE

Supreme Court of the United States

________________

BRYAN CHRISTOPHER BELL & ANTWAUN KYRAL SIMS,

Petitioners,

v.

STATE OF NORTH CAROLINA,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF NORTH CAROLINA

________________

BRIEF OF AMICI CURIAE EMANCIPATE NC,

NORTH CAROLINA ADVOCATES FOR

JUSTICE, NORTH CAROLINA ASSOCIATION

OF BLACK LAWYERS, AND NORTH

CAROLINA STATE CONFERENCE OF THE

NAACP IN SUPPORT OF PETITIONERS

________________

Ian A. Mance

EMANCIPATE NC

P.O. Box 309

Durham, NC 27702

(828) 719-5755

ian@emancipatenc.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT................................... 1

ARGUMENT ............................................................. 3

I.

DEFIANCE OF BATSON AND J.E.B. IS

DEEPLY INGRAINED IN

PROSECUTORIAL CULTURE IN

NORTH CAROLINA .......................................... 6

II. THE HISTORY OF THE DISTRICT

ATTORNEY IN THIS CASE

EXEMPLIFIES A PATTERN OF

DISCRIMINATION AS DRAMATIC AS

THE PROSECUTORS IN MILLER-EL,

FOSTER, AND FLOWERS .............................. 14

III. OF THE 25 MOST POPULOUS STATES,

NORTH CAROLINA IS THE ONLY

STATE TO NEVER GRANT

MEANINGFUL RELIEF FOR A BATSON

OR J.E.B. VIOLATION .................................... 18

IV. THIS COURT HAS HISTORICALLY

INTERVENED WHEN STATE COURTS

HAVE “IGNORED” OR PLAINLY

REFUSED TO GIVE EFFECT TO ITS

CRIMINAL JUSTICE RULINGS .................... 23

CONCLUSION ........................................................ 25

ii

TABLE OF AUTHORITIES

Cases

Addison v. State,

962 N.E.2d 1202 (Ind. 2012) ................................ 18

Amadeo v. Zant,

486 U.S. 214 (1988) .............................................. 11

Batson v. Kentucky,

476 U.S. 79 (1986) ...................................... 6, 17, 21

Booth v. Maryland,

482 U.S. 496 (1987) .............................................. 24

Bosse v. Oklahoma,

580 U.S. 1 (2016) .................................................. 24

Broady v. Commonwealth,

429 S.E.2d 468 (Va. 1993) .................................... 18

Buck v. Davis,

580 U.S. 100 (2017) .............................................. 17

Callins v. Collins,

510 U.S. 1141 (1994) ............................................ 22

Com. v. Basemore,

744 A.2d 717 (Pa. 2000) ........................................ 18

Com. v. Maldonado,

788 N.E.2d 968 (Mass. 2003) ............................... 18

Cooper v. State,

791 S.W.2d 80 (Tex. 1990) .................................... 18

iii

Page(s)

Cruz v. Arizona,

598 U.S. 17 (2023) .......................................... 16, 24

Eddings v. Oklahoma,

455 U.S. 104 (1982) .............................................. 24

Elliott v. State,

972 A.2d 354 (Md. App. 2009) .............................. 19

Flowers v. Mississippi,

588 U.S. 284 (2019) ........................................ 14, 19

Foster v. Chatman,

578 U.S. 488 (2016) ........................................ 11, 14

Gamble v. State,

357 S.E.2d 792 (Ga. 1987) .................................... 18

Gilliam v. Sealey,

932 F.3d 216 (4th Cir. 2019) ................................ 23

Gregg v. Georgia,

428 U.S. 153 (1976) .............................................. 17

Hall v. Valeska,

509 F. App’x 834 (11th Cir. 2012) ........................ 13

Hinton v. Alabama,

571 U.S. 263 (2014) .............................................. 24

Hunter v. Underwood,

471 U.S. 222 (1985) .............................................. 23

iv

Page(s)

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994) ............................................ 4, 6

McCleskey v. Kemp,

481 U.S. 279 (1987) .............................................. 21

McCollum v. North Carolina,

512 U.S. 1254 (1994) ............................................ 22

McGahee v. Alabama Dep’t Of Corr.,

560 F.3d 1252 (11th Cir. 2009) ............................ 12

Miller-El v. Dretke,

545 U.S. 231 (2005) .............................................. 14

Neal v. State,

612 So. 2d 1347 (Ala. Crim. App. 1992) ............... 18

Nowell v. State,

998 So.2d 597 (Fla. 2008) ..................................... 18

Peña-Rodriguez v. Colorado,

580 U.S. 1 (2017) .................................................. 17

Penry v. Johnson,

492 U.S. 302 (1989) .............................................. 24

People v. Estwick,

241 N.E.3d 796 (N.Y. 2024) .................................. 18

People v. Gutierrez,

395 P.3d 186 (Cal. 2017) ...................................... 18

v

Page(s)

People v. Hope,

589 N.E.2d 503 (Ill. 1992) .................................... 18

People v. Madrid,

494 P.3d 624 (Colo. App. 2021) ............................ 18

People v. Richardson,

No. 360600, 2023 WL 8877208 (Mich. Ct. App.

Dec. 21, 2023)........................................................ 18

Powers v. Ohio,

499 U.S. 400 (1991) ........................................ 21, 25

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................ 23

Ray-Simmons v. State,

132 A.3d 275 (Md. 2016)....................................... 18

Rice v. Collins,

546 U.S. 333 (2006) ................................................ 4

Rose v. Mitchell,

443 U.S. 545 (1979) .............................................. 21

Sears v. Upton,

561 U.S. 945 (2010) .............................................. 24

Seattle v. Erickson,

398 P.3d 1124 (Wash. 2017) ................................. 12

Simeon v. Hardin,

451 S.E.2d 858 (N.C. 1994) .................................. 11

vi

Page(s)

Simmons v. South Carolina,

412 U.S. 154 (1994) .............................................. 23

Smith v. Texas,

543 U.S. 37 (2004) ................................................ 24

Snyder v. Louisiana,

552 U.S. 472 (2008) .............................................. 11

State v. Andujar,

228 A.3d 236 (N.J. App. Div. 2020) ...................... 18

State v. Augustine,

847 S.E.2d 729 (N.C. 2020) ........................ 8, 10, 21

State v. Bell,

913 S.E.2d 142 (N.C. 2025) ........................ 7, 15, 16

State v. Chambers,

918 S.E.2d 634 (N.C. 2025) .................................... 7

State v. Clegg,

867 S.E.2d 885 (N.C. 2022) .......................... 2, 8, 16

State v. Coleman,

970 So. 2d 511 (La. 2007) ..................................... 18

State v. Guerra-Reyna,

549 N.W.2d 779 (Wis. Ct. App. 1996) .................. 18

State v. Hobbs,

884 S.E.2d 639 (N.C. 2023) .................................... 7

vii

Page(s)

State v. Jackson,

368 S.E.2d 838 (N.C. 1988) .................................... 7

State v. Jefferson,

429 P.3d 467 (Wash. 2018) ................................... 18

State v. Jefferson,

429 P.3d 467 (Wash. 2018) ................................... 12

State v. Kirk,

145 N.E.3d 1092 (Ohio Dist. Ct. App. 2019) ........ 18

State v. Lucas,

18 P.3d 160 (Ariz. Ct. App. 2001)......................... 18

State v. McCollum,

433 S.E.2d 144 (N.C. 1993) .................................. 23

State v. McCord,

No. 58795-5-II, 2025 WL 1445534 (Wash. Ct. App.

May 20, 2025) ....................................................... 19

State v. McFadden,

216 S.W.3d 673 (Mo. 2007) ................................... 18

State v. McRae,

494 N.W.2d 252 (Minn. 1992) .............................. 18

State v. Patterson,

414 S.E.2d 155 (S.C. 1992) ................................... 18

State v. Richardson,

891 S.E.2d 132 (N.C. 2023) .......................... 6, 7, 20

viii

Page(s)

State v. Robinson,

846 S.E.2d 711 (N.C. 2020) .................................. 21

State v. Saintcalle,

309 P.3d 326 (Wash. 2013) ................................... 12

State v. Sims,

588 S.E.2d 55 (2003) ............................................. 17

State v. Tucker,

895 S.E.2d 532 (N.C. 2023) .............................. 8, 10

Strickland v. Washington,

466 U.S. 668 (1984) .............................................. 24

Timbs v. Indiana,

586 U.S. 146 (2019) .............................................. 23

United States v. Caro,

597 F.3d 608 (4th Cir. 2010) .................................. 9

Wearry v. Cain,

577 U.S. 385 (2016) .............................................. 24

Woodson v. North Carolina,

428 U.S. 280 (1976) .............................................. 25

Statutes

GA. CODE ANN. § 15-18-40 (2025) .............................. 9

N.C. GEN. STAT. § 7A-61 ........................................... 10

Other Authorities

Ames Alexander and Luciana Perez Uribe Guinassi,

Prosecutors Lobbied NC Lawmakers to Kill

ix

Page(s)

Criminal Justice Reform Bills, Emails Show,

(Raleigh) NEWS & OBSERVER, July 22, 2023 .......... 9

Br. of Amicus Curiae, N.C. Assoc. of Black Lawyers

and N.C. State Conference of the NAACP, at 2–3,

State v. Tucker, 895 S.E.2d 532 (N.C. 2023)........ 22

Chris Berendt, Ruling Puts Murder Trial Back in

Light, SAMPSON INDEPENDENT, Feb. 4, 2023 ......... 3

Daniel R. Pollitt & Brittany P. Warren, Thirty Years

of Disappointment: North Carolina’s Remarkable

Appellate Batson Record, 94 N.C. L. REV. 1957

(2016) ................................................................ 7, 20

Death Penalty Information Center, Historic Civil

Rights Suit Filed in Alabama Over Exclusion of

Blacks from Jury Service, Oct. 19, 2011 .............. 13

Editorial, Race and Death Penalty Juries, N.Y.

TIMES, Feb. 6, 2012 ............................................... 20

Elizabeth Weill-Greenberg, The Persistent History of

Excluding Black Jurors in North Carolina, THE

APPEAL (Aug. 26, 2019)......................................... 10

Emily Coward, What Does It Take to Succeed on a

Batson Claim in North Carolina?, N.C. CRIM. LAW

BLOG, UNC SCH. GOV’T, Feb. 18, 2020 ................... 7

Gilad Edelman, Why Is It So Easy for Prosecutors to

Strike Black Jurors?, THE NEW YORKER, June 5,

2015 ................................................................. 11, 13

x

Page(s)

Gregory Butler, Affidavit, State v. Bell, No. 00 CRS

500921 (N.C. Super. Ct. Jan. 9, 2012) ................... 3

Ian A. Mance, Cheat Sheets and Capital Juries, 44

CAMPBELL L. REV. 3 (2021) ..................................... 8

James E. Coleman, Jr. and David C. Weiss, The Role

of Race in Jury Selection: A Review of North

Carolina Appellate Decisions, N.C. STATE BAR

JOURNAL 14 (Fall 2017) .................................. 13, 19

Jeff Welty, Is North Carolina the Only State in

Which the Prosecutor Controls the Calendar?, N.C.

CRIM. LAW BLOG, UNC SCH. GOV’T, Nov. 17, 2015

............................................................................... 10

Jennifer Gonnerman, An Investigation into How

Prosecutors Picked Death-Penalty Juries, THE NEW

YORKER, Nov. 18, 2024 ......................................... 12

JOHN G. ROBERTS, JR., C.J., U.S. SUP. CT., 2021 YEAREND REPORT ON THE FEDERAL JUDICIARY ............. 10

Jonathan Abel, Batson’s Appellate Appeal and Trial

Tribulations, 118 COLUM. L. REV. 713 (2018) ........ 4

N.C. TASK FORCE FOR RACIAL EQUITY IN CRIM. JUST.,

REPORT 2020 ......................................................... 20

Ned Barnett, Under Chief Justice Newby, NC Courts

Grow More Partisan, (Raleigh) NEWS & OBSERVER,

March 28, 2022 ..................................................... 22

xi

Page(s)

Order, State v. Bacote, 07 CRS 51499, at 4 (Johnson

Co. Sup. Ct. Feb. 7, 2025) ......................9, 15, 16, 17

WECT Staff, Gov. Perdue Issues Pardon of Innocence

for Wilmington 10, WECT NEWS 6, Dec. 31, 2012 20

Rules

Wash. Gen. R. 37 ...................................................... 12

1a

INTEREST OF AMICI CURIAE1

Amici Curiae Emancipate NC, North Carolina

Advocates for Justice, North Carolina Association of

Black Lawyers, and North Carolina State Conference

of the NAACP are North Carolina-based organizations whose member attorneys regularly represent

criminal defendants in legal proceedings. Amici are

committed to equal treatment for all people in the legal system and often file briefs in cases involving discrimination in North Carolina.

SUMMARY OF ARGUMENT

Evidence suggests that defiance of this Court’s

rulings in Batson v. Kentucky and J.E.B. v. Alabama

ex rel. T.B. is deeply ingrained in prosecutorial culture and in the state courts of North Carolina. For a

number of reasons, discussed herein, discrimination

in jury selection remains a pronounced problem in the

Tar Heel state, although recent experiences from

other jurisdictions demonstrate the phenomenon also

remains a problem elsewhere.

The history of the prosecutor in this case, Mr.

Gregory Butler, exemplifies a pattern of race and gender discrimination as dramatic as the District Attorneys in Miller-El, Foster, and Flowers—cases where

this Court reversed convictions for capitally1 Counsel for amici curiae states that no counsel for a party

authored this brief in whole or in part, and no person or entity

other than amici curiae and its counsel made a monetary contribution to its preparation or submission; counsel also provided

both parties more than ten days’ notice of their intent to file this

brief.

2

sentenced defendants because of the unlawful exercise of peremptory strikes. In the case below, Mr. Butler asserted that he did not strike Ms. Morrow

because she was Black, but because she was a woman,

and he was “looking for male jurors and a potential

foreperson.” The unconstitutionality of this strike was

acknowledged by the Supreme Court of North Carolina, but it was not reached because of the court’s

novel and inconsistent application of a procedural

bar.

Certiorari is warranted not only to correct this error, which occurred in a capital case, but also because,

as one concurring Justice below noted, and as this

case illustrates: North Carolina state courts have effectively overruled and ignored this Court’s jury discrimination precedents. Of the 25 most populous

states, North Carolina, the ninth largest by population, is the only state whose courts have never

granted meaningful Batson or J.E.B. relief to a criminal defendant.2

The consequences of the state’s defiance of Batson

and its gender-based analogue, J.E.B., are significant

for criminal defendants and prospective jurors subjected to unlawful discrimination, and also for the

public’s perception of the courts. This Court has

2 The only person to ever obtain a remedy in North Carolina,

Christopher Clegg, served his full sentence of more than four

years and was released from custody a year and a half before his

conviction was vacated. See State v. Clegg, 867 S.E.2d 885, 911

(N.C. 2022) (noting that “defendant has already served his entire

sentence of active imprisonment from his now-reversed conviction, and has been discharged from all post-release supervision”).

3

historically intervened when state courts have “ignored” or plainly refused to give effect to its criminal

justice rulings, particularly in capital cases, and it

should do so here.

ARGUMENT

In 2022, Onslow County, N.C. Superior Court

Judge Charles H. Henry found that prosecutor Gregory Butler used a peremptory challenge to dismiss

prospective juror Viola Morrow, a Black woman, from

Bryan Bell’s and Antwaun Sims’ joint murder trial. In

striking Ms. Morrow, Judge Henry concluded the

prosecution had acted with “gender discriminatory intent,” citing what he described as “direct . . . as well

as . . . circumstantial evidence tending to show purposeful discrimination.”3 His ruling quoted, among

other things, an affidavit from Mr. Butler, who, in an

attempt to defeat Defendants’ postconviction Batson

claims under the state’s Racial Justice Act, wrote that

he had been “looking for male jurors and a potential

foreperson” when he exercised the strike against Ms.

Morrow.4

Mr. Butler misapprehended the law and believed

averring the strike was based on gender would resolve

the trial court’s concerns that he had removed a juror

because of her race. In the intervening years, everyone to consider the issue, including the Supreme

3 Chris Berendt, Ruling Puts Murder Trial Back in Light,

SAMPSON INDEPENDENT, Feb. 4, 2023, https://www.clinton

nc.com/news/64586/ruling-puts-murder-trial-back-in-light.

4 Gregory Butler, Affidavit, State v. Bell, No. 00 CRS 500921

(N.C. Super. Ct. Jan. 9, 2012), 1.

4

Court of North Carolina, appears to agree he was

wrong to believe he could strike Ms. Morrow because

of her gender. However, the question of whether Defendants are entitled to a remedy remains disputed.

Mr. Bell was sentenced to death, and absent action

from this Court, his execution may proceed, despite

the unconstitutional method in which his sentence

was obtained.

This Court has repeatedly recognized “discrimination in jury selection on the basis of gender violates

the Equal Protection Clause,”5 and that “gender, like

race, is an unconstitutional proxy for juror competence and impartiality.”6 Although the Court’s Batson

and J.E.B. decisions have received some criticism regarding their practicality at the trial level, they have

also received praise for their salutary effects post-conviction and been recognized as “the lone meaningful

doctrine for fighting discrimination in the justice system—the only doctrine defendants can plead and actually win.”7

That is, except in North Carolina—the only state

of the nation’s 25-largest to never grant a criminal defendant a meaningful remedy for jury discrimination.8 Mr. Bell’s and Mr. Sims’ petition for certiorari

5 Rice v. Collins, 546 U.S. 333, 340 (2006) (citing J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127 (1994)).

6 J.E.B., 511 U.S. at 129.

7 Jonathan Abel, Batson’s Appellate Appeal and Trial Trib-

ulations, 118 COLUM. L. REV. 713, 715 (2018).

8 See generally discussion infra, Part III.

5

speaks to the legal error they seek the Court’s review

to correct, and why the men are strong candidates to

be the first defendants to obtain relief. This Brief does

not address the specifics of their case. Instead, it focuses on the bigger picture in North Carolina, and

why the state’s refusal to implement this Court’s Batson and J.E.B. precedents warrants intervention.

Part I describes how and why defiance of Batson

and J.E.B. is deeply ingrained in prosecutorial culture in North Carolina. It observes that while the

problem in North Carolina is particularly pronounced, it is not exceptional, and discusses a number

of other recent examples involving the systematic

evasion of Batson in other jurisdictions. Part II explains how the history of the District Attorney in this

case, Mr. Butler, exemplifies a pattern of discrimination as dramatic as the prosecutors in Miller-El v.

Dretke, Foster v. Chatman, and Flowers v. Mississippi. Part II emphasizes the significance of the prosecutor’s admission to gender-based strikes, the state

Supreme Court’s acknowledgment of discrimination,

and an Associate Justice’s concurrence, which observed that “the jurisprudence of [North Carolina]

has effectively overruled Batson and J.E.B. for postconviction relief[.]” Part III provides evidence that, of

the 25 most populous states, North Carolina is the

only state to never grant Batson relief. It argues that

the consequences of ignoring North Carolina’s defiance of Batson are significant to criminal defendants,

to prospective jurors, and to public confidence in the

state’s courts. Part IV concludes by observing that

this Court has historically intervened when state

6

courts have “ignored” or plainly refused to give effect

to its criminal justice rulings.

I.

DEFIANCE OF BATSON AND J.E.B. IS

DEEPLY INGRAINED IN PROSECUTORIAL

CULTURE IN NORTH CAROLINA

In North Carolina, to use this Court’s phrasing in

Batson, jury discrimination remains “common and

flagrant.”9 Although it has taken no action to address

the issue, the state’s Supreme Court recently

acknowledged that the “North Carolina court system

has a well-documented problem with Black citizens

being disproportionately excluded from the fundamental civil right to serve on juries.”10 As this case

demonstrates, the same is also true with respect to

women jurors. Prosecutors and courts in the state

have regularly ignored11 this Court’s holding that it

violates equal protection for a prosecutor to exercise a

peremptory strike against a woman because of a belief

that “men . . . might be more sympathetic and receptive to the [state’s] arguments.”12 In Mr. Bell’s and

Mr. Sims’ case, the prosecutor asserted that he struck

Ms. Morrow because she was a woman, and he wanted

a “strong male juror,” preferably to serve as foreman.

9 Batson v. Kentucky, 476 U.S. 79, 103 (1986).

10 State v. Richardson, 891 S.E.2d 132, 201 (N.C. 2023), cert.

denied, 144 S. Ct. 2692 (2024).

11 See, e.g., Richardson, 891 S.E.2d at 207–08 (discussing

“remarks [from prosecutor] indicat[ing] ‘that [he] did not know

J.E.B. prevented him from removing jurors based on gender, and

that he felt free to do so”).

12 J.E.B., 511 U.S. at 137–38.

7

The Court should grant certiorari because intervention is necessary to send a message to prosecutors

and state courts that they do not have a “license . . .

to proceed with ‘business as usual,’ . . . [lest] this

right, implicit in the equal protection clause and given

vitality by the Batson ruling, [become] a right without

a remedy.”13 Here, the prosecutor confessed to J.E.B.

error, under the apparent misapprehension that gender-based discrimination lawfully excused race-based

discrimination proscribed by Batson—an assertion

that speaks to the effective inapplicability of both

cases in the state.14 A Justice who concurred in the

court’s denial of relief in this case plainly acknowledged “the jurisprudence of [North Carolina] has effectively overruled Batson and J.E.B. for postconviction relief.”15 This is not something North Carolina courts have authority to do or that this Court

should continue to allow unabated.

13 State v. Jackson, 368 S.E.2d 838, 843 (N.C. 1988) (Frye,

J., concurring).

See generally Daniel R. Pollitt & Brittany P. Warren,

Thirty Years of Disappointment: North Carolina’s Remarkable

Appellate Batson Record, 94 N.C. L. REV. 1957 (2016); Emily

Coward, What Does It Take to Succeed on a Batson Claim in

North Carolina?, N.C. CRIM. LAW BLOG, UNC SCH. GOV’T, Feb.

18, 2020, https://nccriminallaw.sog.unc.edu/what-does-it-taketo-succeed-on-a-batson-claim-in-north-carolina/.

14

15 State v. Bell, 913 S.E.2d 142, 155 (N.C. 2025) (Earls, J.,

concurring). The court’s most recent terms include multiple

cases that illustrate this phenomenon. E.g., State v. Chambers,

918 S.E.2d 634, 634 (N.C. 2025) (mem.); Richardson, 891 S.E.2d

at 132; State v. Hobbs, 884 S.E.2d 639 (N.C. 2023), cert. denied,

144 S. Ct. 1011 (2024).

8

Prosecutors in the state have been emboldened by

the complete lack of accountability for Batson and

J.E.B. violations. This state of affairs is evidenced by

the N.C. Conference of District Attorneys’ distribution of a Batson “cheat sheet” at CLEs—a document

specifically designed to undermine the effectiveness of

the test this Court set forth in its seminal 1986 opinion.16 It can be seen in their willingness to threaten

judicial complaints against a Black judge if he should

dare assign a post-conviction Batson claim to another

Black judge.17 It is visible on prosecutorial list-servs,

where D.A.s strategize about steering Batson claims

16 See State v. Tucker, 895 S.E.2d 532, 559–60 (N.C. 2023)

(holding that “prosecutors’ use of [Batson] cheat sheet” did not

constitute “evidence sufficient to overcome a procedural bar”),

cert. denied, 145 S. Ct. 196 (2024); Clegg, 867 S.E.2d at 907 (stating that “prosecutorial training sessions conducted by the North

Carolina Conference of District Attorneys included a ‘cheat

sheet’ titled ‘Batson Justifications: Articulating Juror Negatives’”); State v. Augustine, 847 S.E.2d 729, 732 (N.C. 2020)

(quoting lower court’s statement that D.A.’s “use of a prosecutorial ‘cheat sheet’ to respond to Batson objections . . . constitute[d]

powerful, substantive evidence that these Cumberland County

prosecutors regularly took race into account in capital jury selection and discriminated against African-American citizens”); see

generally Ian A. Mance, Cheat Sheets and Capital Juries, 44

CAMPBELL L. REV. 3 (2021) (discussing North Carolina prosecutors’ historical use of Batson “cheat sheets” and asserting that

equal protection doctrine does not permit prosecutors to employ

devices designed to undermine the operation of mechanisms imposed by courts to guard against racial discrimination).

17 Mance, supra note 16, at 29 & n.129.

9

away from Black judges.18 And it can be seen in the

racialized conduct of the prosecutor in this case, who

has called the Black defendants he has prosecuted, including Mr. Bell and Mr. Sims, “predators on the African plain,” “thugs,” and “pieces of trash.”19 This kind

of conduct, engaged in by attorneys “charged with the

awesome power of seeking and imposing death,”20 is

the consequence of North Carolina state courts’ abdication of responsibility to uphold this Court’s precedents in Batson and J.E.B.

Why is North Carolina like this? Certain features

of the state’s government may help explain why its

prosecutors appear more emboldened than their counterparts in other places. North Carolina is one of only

two states to fund an advocacy organization for prosecutors and formally situate it within the judicial

branch.21 It is no small operation. The North Carolina

Conference of District Attorneys receives millions in

annual funding, employs dozens of people, and exerts

considerable political power in the state.22 The

18 Id.

19 Order, State v. Bacote, 07 CRS 51499, at 4 (Johnson Co.

Sup. Ct. Feb. 7, 2025), available at https://eji.org/wp-content/uploads/2005/11/02-07-25-bacote-order.pdf.

20 United States v. Caro, 597 F.3d 608, 646 (4th Cir. 2010)

(Gregory, J., dissenting).

21 The only other state to do this is Georgia. See GA. CODE

ANN. § 15-18-40 (2025).

10

Conference is active on Batson issues and has brazenly distributed pre-written “Batson Justifications”

handouts to its membership at CLEs that have been

employed in multiple capital cases23—a practice it

continues to defend.24 Also likely playing some role is

the fact that North Carolina is, depending on how one

describes the issue, “the only state in which the prosecutor controls the [criminal court] calendar.”25

Against this backdrop, the Court should be skeptical of the state’s record with respect to Batson and

J.E.B. challenges. As Chief Justice Roberts has noted,

“public confidence in the courts” rests, in part, on the

expectation that parties not be permitted “to select a

22 Ames Alexander and Luciana Perez Uribe Guinassi, Pros-

ecutors Lobbied NC Lawmakers to Kill Criminal Justice Reform

Bills, Emails Show, (Raleigh) NEWS & OBSERVER, July 22, 2023.

23 E.g., Tucker, 895 S.E.2d at 532; Augustine, 847 S.E.2d at

729.

24 Elizabeth Weill-Greenberg, The Persistent History of Ex-

cluding Black Jurors in North Carolina, THE APPEAL (Aug. 26,

2019), https://theappeal.org/north-carolina-black-jury-selection/

(quoting the organization’s executive director describing the

handout as a “sheet of paper” and “appropriate”).

25 See N.C. GEN. STAT. § 7A-61 (“The district attorney shall

prepare the trial dockets[.]”); see also Jeff Welty, Is North Carolina the Only State in Which the Prosecutor Controls the Calendar?, N.C. CRIM. LAW BLOG, UNC SCH. GOV’T, Nov. 17, 2015,

https://nccriminallaw.sog.unc.edu/is-north-carolina-the-onlystate-in-which-the-prosecutor-controls-the-calendar/ (asserting

that the claim is “not completely accurate” and noting that prosecutors in South Carolina and Georgia “retain a role in calendaring”).

11

particular judge to hear a case.”26 In North Carolina,

the control District Attorneys exert with respect to

the specific judge who presides over a matter is at its

height at the trial stage and often carries into postconviction proceedings,27 a dynamic that likely contributes to the dearth of Batson violations in the state.

As Stephen Bright has observed, even in places where

prosecutors have no say in the selection of a presiding

judge, “You’re asking the judge to say that the prosecutor intentionally discriminated . . . and that he lied

about it. That’s very difficult psychologically for the

average judge.”28

While the problem in North Carolina is particularly pronounced, it also reflects trends present in

other jurisdictions. The Tar Heel State has distinguished itself perhaps more than any jurisdiction in

its willingness to defy this Court’s precedents on jury

discrimination, but examples of systemic discrimination by prosecutors against criminal defendants and

26 JOHN G. ROBERTS, JR., C.J., U.S. SUP. CT., 2021 YEAR-END

REPORT ON THE FEDERAL JUDICIARY at 5, https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf.

27 See

generally Simeon v. Hardin, 451 S.E.2d 858 (N.C.

1994) (discussing prosecutors’ ability in North Carolina to control the trial calendar to gain tactical advantage over criminal

defendants).

Gilad Edelman, Why Is It So Easy for Prosecutors to

Strike Black Jurors?, THE NEW YORKER, June 5, 2015. Mr.

Bright represented the prevailing party in three of this Court’s

cases involving jury discrimination, Foster v. Chatman, 578 U.S.

488, 512 (2016); Snyder v. Louisiana, 552 U.S. 472 (2008); and

Amadeo v. Zant, 486 U.S. 214 (1988).

28

12

prospective jurors can be found in jurisdictions across

the country, giving the problem a more national dimension. The Alameda County (Calif.) D.A.’s capital

team, for example, was recently discovered to have

systematically discriminated against Black and Jewish prospective jurors for years, referring to them in

racially-discriminatory and anti-Semitic terms in internal notes to one another.29 Until a few years ago,

Washington State, in over 40 cases, had never reversed a conviction based on a Batson violation,30

prompting the state Supreme Court to adopt General

Rule 37, identifying presumptively invalid reasons for

the exercise of peremptory challenges.31 In 2009, the

U.S. Court of Appeals for the Eleventh Circuit described an “astonishing pattern” of “systematic exclusion of African-Americans” from capital juries by

prosecutors in Dallas County, Alabama, whose population was 55% Black.32

In Houston County, Alabama, which is approximately 25% Black, a local prosecutor was the subject

29 See Jennifer Gonnerman, An Investigation into How Pros-

ecutors Picked Death-Penalty Juries, THE NEW YORKER, Nov. 18,

2024.

30 State v. Saintcalle, 309 P.3d 326, 335 (Wash. 2013), cert.

denied, 571 U.S. 1113 (2013), and overruled in part on other

grounds by Seattle v. Erickson, 398 P.3d 1124 (Wash. 2017).

31 Wash. Gen. R. 37(i); see also State v. Jefferson, 429 P.3d

467, 476 (Wash. 2018) (discussing Batson and the court’s “inherent authority to adopt such procedures to further the administration of justice”).

32 McGahee v. Alabama Dep’t Of Corr., 560 F.3d 1252, 1266–

70 (11th Cir. 2009).

13

of a federal civil rights lawsuit by the Equal Justice

Initiative after “the jury in every death penalty case

. . . [was] either all white or had only a single black

juror” over a five year period.33 Bryan Stevenson, the

lead attorney for the plaintiffs, explained the man

“has repeatedly been found [by courts] to have illegally excluded black people from jury service with

peremptory strikes in capital cases but he continues

the practice because most people don’t know about

it.”34 Elsewhere, The New Yorker, which has reported

extensively on the phenomenon of jury discrimination, reported that prosecutors in Caddo Parish, Louisiana “struck forty-eight per cent of qualified black

jurors between 1997 and 2009 and only fourteen per

cent of qualified whites.”35

In sum, jury discrimination remains a pronounced problem in many jurisdictions around the

country, and particularly in the South. However, the

difference between those places and North Carolina is

there is evidence the appellate courts in states like

Alabama take the issue quite seriously.36

33 Death Penalty Information Center, Historic Civil Rights

Suit Filed in Alabama Over Exclusion of Blacks from Jury Service, Oct. 19, 2011.

34 Id.; see generally Hall v. Valeska, 509 F. App’x 834 (11th

Cir. 2012) (unpublished).

35 Edelman, supra note 28.

36 See, e.g., James E. Coleman, Jr. and David C. Weiss, The

Role of Race in Jury Selection: A Review of North Carolina Appellate Decisions, N.C. STATE BAR JOURNAL, at 14 (Fall 2017)

14

II. THE

HISTORY

OF

THE

DISTRICT

ATTORNEY IN THIS CASE EXEMPLIFIES A

PATTERN

OF

DISCRIMINATION

AS

DRAMATIC AS THE PROSECUTORS IN

MILLER-EL, FOSTER, AND FLOWERS

The actions of the prosecutor in this case should

also give this Court great pause. In Miller-El I & II,

the Court was confronted with a District Attorney’s

Office with a “remarkable” record of striking Black

prospective jurors, along with evidence the office employed a manual “outlining the reasoning for excluding minorities from jury service.”37 A decade later, in

Foster v. Chatman, the Court encountered a prosecutor who offered “shifting explanations” for his strikes,

and whose file exhibited a “persistent focus on race.”38

Most recently, in Flowers v. Mississippi, the Court

was confronted with a prosecutor who “struck 41 of

the 42 black prospective jurors [he] could have

struck,” reflecting a “relentless, determined effort to

rid the jury of black individuals.”39

The evidence concerning the prosecutor in this

case, Gregory Butler, is on par with Miller-El, Foster,

and Flowers. Mr. Butler’s strike history is extensive,

(“As of 2010, Alabama had over 80 appellate reversals because

of racially-tainted jury selection[.]”).

37 Miller-El v. Dretke, 545 U.S. 231, 264 (2005) (quoting Mil-

ler–El, 537 U.S. at 334–35).

38 Foster, 578 U.S. at 512 .

39 Flowers v. Mississippi, 588 U.S. 284, 306 (2019).

15

highly-racialized, and there is evidence he employed

the aforementioned Batson “cheat sheet”—with the

added feature that he was earlier this year also found

by a court to have “a history of denigrating Black defendants in thinly veiled racist terms.”40 As with the

prosecutor in Foster, Mr. Butler’s explanations for the

juror strikes in Mr. Bell’s and Mr. Sims’ case shifted

over time. The latest explanation he offered for the

strikes—that he struck Ms. Morrow because of her

gender, not because she is Black—is no less unconstitutional than the motive he sought to disclaim.41 Mr.

Butler’s affidavit, irrespective of its accuracy, speaks

in a broader sense to the lack of regard for J.E.B. and

Batson that is regrettably characteristic of too many

District Attorneys in North Carolina. Indeed, in a separate proceeding, a Superior Court Judge found Mr.

Butler’s “flawed mindset” spoke to a larger problem in

North Carolina in which prosecutors manifestly

“failed to understand Batson’s purpose.”42

In this capital case, discrimination in jury selection was confessed by the prosecutor, acknowledged

by the Supreme Court of North Carolina, but remains

unredressed. The Supreme Court of North Carolina

“recognize[d] the reprehensible and insidious nature

of discrimination in the jury selection process,” as well

40 Order, Bacote, supra note 19, at 4.

41 Bell, 913 S.E.2d at 157 (N.C. 2025) (Earls, J., concurring)

(stating Mr. Butler’s affidavit includes “new, conclusive admissions by the State that it employed a peremptory strike to remove a juror based on gender,” which “is a constitutional

violation”).

42 Order, Bacote, supra note 19, at 85.

16

as “the discriminatory practices of the State in this

case.”43 Yet the court invoked a procedural bar to

avoid reaching the issue. In a concurring opinion, a

Justice of the Supreme Court said she “cannot discern

what Bell or his counsel could have done differently

to achieve relief under our precedent, even in this extraordinary instance where a prosecutor has admitted

under oath that he struck a juror based on her gender.”44

Mr. Butler’s affidavit amounts to a confession of

structural error in Mr. Bell’s case, and the state

court’s invocation of a novel application of a procedural bar to avoid reaching the issue warrants the

Court’s intervention.45 Absent such intervention, Defendant Bell stands to be executed, and Mr. Sims to

serve his life in prison, for a conviction obtained by a

prosecutor who has admitted to unconstitutional juror discrimination, who likely employed what the

state Supreme Court referred to as a Batson “cheat

sheet”46 to strike Black jurors in his trial, and who

43 Bell, 913 S.E.2d at 143 (N.C. 2025) (emphasis added).

44 Bell, 913 S.E.2d at 157 (Earls, J., concurring).

45 See Cruz v. Arizona, 598 U.S. 17, 32 (2023) (“[W]here a

state-court judgment rests on a novel and unforeseeable statecourt procedural decision lacking fair or substantial support in

prior state law, that decision is not adequate to preclude review

of a federal question.”).

46 See Clegg, 867 S.E.2d at 907

(expressing “significant suspicion” about prosecutors’ reasons for distributing the Batson

“cheat sheet”); Order, Bacote, supra note 19, at 85 (discussing

Batson cheat sheet and Gregory Butler).

17

described the Defendants, two Black men, in closing

arguments, as akin to “predators on the African

plain.”47

This Court has indicated in recent years that the

necessity of addressing claims involving racial bias

and criminal juries sometimes outweighs the import

of procedural rules that might otherwise bar their

consideration.48 Notably, in the lower court proceedings, Defendants have managed to meet even the

“crippling burden of proof” required of defendants in

the pre-Batson, Swain era, which is to say they have

demonstrated that race was a predominating factor in

Mr. Butler’s peremptory strikes over the course of his

career.49 Earlier this year, a Superior Court Judge

“conclu[ded] that race has been a significant factor in

strike decisions . . . in cases tried by Gregory C. Butler.”50 These findings and the confessed discrimination in this case should matter, particularly given the

highly unusual way that North Carolina’s high court

disposed of the issue through inconsistent application

of a procedural bar. This Court has long “recognize[d]

that the penalty of death is different,”51 and that cases

in which it is imposed warrant heightened scrutiny.

47 State v. Sims, 588 S.E.2d 55, 62–64 (2003).

48 E.g., Peña-Rodriguez v. Colorado, 580 U.S. 1, 21 (2017);

Buck v. Davis, 580 U.S. 100, 126–28 (2017).

49 Batson, 476 U.S. at 92 n.17.

50 Order, Bacote, 07 CRS 51499, supra note 19, at 3.

51 Gregg v. Georgia, 428 U.S. 153, 188 (1976).

18

III. OF THE 25 MOST POPULOUS STATES,

NORTH CAROLINA IS THE ONLY STATE

TO NEVER GRANT MEANINGFUL RELIEF

FOR A BATSON OR J.E.B. VIOLATION52

Despite being the ninth most-populous state,

North Carolina has never, in 40 years since Batson

52 Appellate courts in all of the top 25 states by population

have reversed convictions because of Batson violations, and

many states’ appellate courts have a large number of reversals.

Those states and some of the relevant opinions, listed in descending order of states’ populations, include California, People v.

Gutierrez, 395 P.3d 186 (Cal. 2017); Texas, Cooper v. State, 791

S.W.2d 80 (Tex. 1990) (en banc); Florida, Nowell v. State, 998

So.2d 597 (Fla. 2008); New York, People v. Estwick, 241 N.E.3d

796 (N.Y. 2024); Pennsylvania, Com. v. Basemore, 744 A.2d 717

(Pa. 2000); Illinois, People v. Hope, 589 N.E.2d 503 (Ill. 1992);

Ohio, State v. Kirk, 145 N.E.3d 1092 (Ohio Dist. Ct. App. 2019);

Georgia, Gamble v. State, 357 S.E.2d 792 (Ga. 1987); Michigan,

People v. Richardson, No. 360600, 2023 WL 8877208 (Mich. Ct.

App. Dec. 21, 2023) (unpublished); New Jersey, State v. Andujar,

228 A.3d 236 (N.J. App. Div. 2020), aff’d as modified, 254 A.3d

606 (N.J. 2021); Virginia, Broady v. Commonwealth, 429 S.E.2d

468 (Va. 1993); Washington, State v. Jefferson, 429 P.3d 467

(Wash. 2018) (en banc); Arizona, State v. Lucas, 18 P.3d 160

(Ariz. Ct. App. 2001); Tennessee, State v. Collins, No.

M201501030CCAR3CD, 2017 WL 2126704 (Tenn. Crim. App.

May 16, 2017); Massachusetts, Com. v. Maldonado, 788 N.E.2d

968 (Mass. 2003); Indiana, Addison v. State, 962 N.E.2d 1202

(Ind. 2012); Missouri, State v. McFadden, 216 S.W.3d 673 (Mo.

2007); Maryland, Ray-Simmons v. State, 132 A.3d 275 (Md.

2016); Wisconsin, State v. Guerra-Reyna, 549 N.W.2d 779 (Wis.

Ct. App. 1996); Colorado, People v. Madrid, 494 P.3d 624 (Colo.

App. 2021), aff’d, 526 P.3d 185 (Colo. 2023); Minnesota, State v.

McRae, 494 N.W.2d 252 (Minn. 1992); South Carolina, State v.

Patterson, 414 S.E.2d 155 (S.C. 1992); Alabama, Neal v. State,

612 So. 2d 1347 (Ala. Crim. App. 1992); and Louisiana, State v.

Coleman, 970 So. 2d 511 (La. 2007). J.E.B. reversals are more

19

and more than 30 years since J.E.B., granted an appellate remedy for jury discrimination. By contrast,

Alabama has had nearly 100 reversals of conviction in

that time.53 The phenomenon in North Carolina is

non-partisan and has persisted through different eras

in which judges from both parties controlled the

state’s appellate courts. It is certainly not that jury

discrimination does not exist in the state, as the problem remains a significant one, a fact acknowledged by

difficult to locate because of state courts’ tendency to refer to

“gender-based discrimination” challenges as Batson challenges,

consistent with this Court’s designation. See, e.g., State v.

McCord, No. 58795-5-II, 2025 WL 1445534, at *1 (Wash. Ct. App.

May 20, 2025) (unpublished) (ruling on “Batson challenge,” and

holding “trial court erred in finding that McCord did not make a

prima facie showing of gender discrimination”); Elliott v. State,

972 A.2d 354, 369 (Md. App. 2009) (“[T]he State’s explanation

does not pass muster under Batson. The State had the burden of

providing a gender-neutral explanation for its strikes. It failed

to do so.”); see also Flowers, 588 U.S. at 301.

53 Coleman & Weiss, supra note 36, at 14.

20

multiple Governors54 and, as recently as 2023, by the

Supreme Court of North Carolina itself.55

After a quarter century of inaction from the

state’s Supreme Court, during which time the Court

considered and denied nearly 75 claims of jury discrimination,56 the N.C. General Assembly passed the

Racial Justice Act, in an attempt to breathe life into

Batson in the state.57 Three years later, after initial

hearings under the Act (which involved Mr. Butler’s

cases) uncovered “a wealth of evidence showing the

persistent, pervasive, and distorting role of race in

54 See WECT Staff, Gov. Perdue Issues Pardon of Innocence

for Wilmington 10, WECT NEWS 6, Dec. 31, 2012 (quoting Governor Perdue stating that “new evidence was made available to

me in the form of handwritten notes from the prosecutor who

picked the jury at trial” and the “notes show with disturbing clarity the dominant role that racism played in jury selection”); see

also N.C. TASK FORCE FOR RACIAL EQUITY IN CRIM. JUST., REPORT 2020, at 100 (report issued by task force co-chaired by the

current Governor, Josh Stein, which concluded that “enforcement [of prohibitions on jury discrimination] remains elusive” in

North Carolina because of “covert traditions and practices of discriminatory exclusion [which] are persistent and require vigilance to root out”).

55 See State v. Richardson, 891 S.E.2d 132, 201 (N.C. 2023)

(“The North Carolina court system has a well-documented problem with Black citizens being disproportionately excluded from

the fundamental civil right to serve on juries.”), cert. denied, 144

S. Ct. 2692 (2024).

56 Pollitt & Warren, supra note 14, at 1986–88.

Editorial, Race and Death Penalty Juries, N.Y. TIMES,

Feb. 6, 2012, A22.

57

21

jury selection throughout North Carolina,”58 lawmakers repealed the law.59 The decision, to many, appeared animated by what members of this Court once

called “a fear of too much justice.”60 To date, no defendant has obtained a meaningful remedy for jury

discrimination in their trial, and the state remains,

for all intents and purposes, a Batson-free zone.

The consequences of ignoring North Carolina’s defiance of Batson are significant. Batson recognized

that discriminatory jury selection inflicts harm on

“the entire community” and “undermine[s] public confidence in the fairness of our system of justice.”61 In

subsequent opinions, the Court has repeatedly stated

that a discriminatory peremptory strike “casts doubt

on the integrity of the judicial process.” 62 That doubt

presently exists in North Carolina. The state’s largest

newspaper recently began a column with the words,

“There’s a growing crisis of confidence in the

58 Augustine, 847 S.E.2d at 731 (quoting trial court order in

State v. Robinson, 846 S.E.2d 711 (N.C. 2020)).

59 Kim Severson, North Carolina Repeals Law Allowing Ra-

cial Bias Claim in Death Penalty Challenges, N.Y. TIMES, June

6, 2013, A13.

60 McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan,

J., dissenting, joined by Marshall, J., Blackmun, J., and Stevens,

J.)

61 Batson, 476 U.S. at 87.

62 Powers v. Ohio, 499 U.S. 400, 411 (1991) (quoting Rose v.

Mitchell, 443 U.S. 545, 556 (1979)).

22

legitimacy of the courts.”63 Among other problems,

people in the state know jury discrimination exists,

and they are troubled by the failure of their courts—

in even a single instance—to address it.

State courts’ failures to remedy confessed acts of

jury discrimination have undermined public confidence in the jury’s essential fact-finding function, in

convictions, and in the integrity of the judiciary in

North Carolina.64 The failure of state courts to act

when confronted with obvious acts of jury discrimination has also compounded other legal errors. In a

number of instances, people denied Batson relief in

the face of credible challenges have gone on to be convicted for crimes they did not commit. A decade after

Batson, for example, this Court denied review of a

death sentence imposed on a Black teenager65—who

Justice Scalia famously held out as among those most

deserving of death,66 and who two decades later was

Ned Barnett, Under Chief Justice Newby, NC Courts

Grow More Partisan, (Raleigh) NEWS & OBSERVER, March 28,

2022.

63

64 See, e.g., Br. of Amicus Curiae, N.C. Assoc. of Black Law-

yers and N.C. State Conference of the NAACP, at 2–3, State v.

Tucker, 895 S.E.2d 532 (N.C. 2023) (discussing N.C. Conference

of D.A.’s distribution of a Batson “cheat sheet,” encouraging the

Court “to reject the State’s benign characterization of this troubling document,” and expressing concern about the “troubling

message [ignoring it sends] to the state’s trial courts and to litigants”).

65 McCollum v. North Carolina, 512 U.S. 1254, 1254 (1994).

See Callins v. Collins, 510 U.S. 1141, 1142–43 (1994)

(Scalia, J., concurring) (discussing McCollum).

66

23

exonerated by DNA67—after North Carolina courts

denied him a remedy for another act of jury discrimination.68

IV. THIS

COURT

HAS

HISTORICALLY

INTERVENED WHEN STATE COURTS

HAVE “IGNORED” OR PLAINLY REFUSED

TO GIVE EFFECT TO ITS CRIMINAL

JUSTICE RULINGS

One of the important roles of the Court is maintaining uniform application of core Constitutional

rights in criminal proceedings. For this reason, the

Court often intervenes when an individual state approaches an issue of criminal and constitutional law

in a way that conflicts with the approach taken by almost every other state.69 The Court has also historically intervened when state courts have plainly

refused to give effect to its rulings. In multiple instances involving prisoners on death row, in particular, the Court has summarily reversed state courts

67 Gilliam v. Sealey, 932 F.3d 216, 221–22 (4th Cir. 2019).

68 State v. McCollum, 433 S.E.2d 144, 159 (N.C. 1993).

69 See, e.g., Ramos v. Louisiana, 590 U.S. 83 (2020) (Louisi-

ana and Oregon and nonunanimous juries); Timbs v. Indiana,

586 U.S. 146 (2019) (Indiana and excessive fines); Kennedy v.

Louisiana, 554 U.S. 407 (2008) (Louisiana and the death penalty

for non-homicide offenses); Simmons v. South Carolina, 412 U.S.

154 (1994) (South Carolina and capital jury instructions);

Hunter v. Underwood, 471 U.S. 222 (1985) (Alabama and disenfranchisement for crimes of moral turpitude).

24

that have refused to give effect to its criminal justice

jurisprudence.70

Here, four decades of data compel the conclusion

that North Carolina’s state courts have failed to give

effect to the Court’s landmark rulings in Batson and

J.E.B. Mr. Bell’s and Mr. Sims’ case provides a compelling example of this phenomenon, involving a prosecutor who used racial, derogatory terms to refer to

the Defendants, and who, when challenged for making racially-discriminatory peremptory strikes, managed to defend himself to the trial court, only to later

admit that he had exercised strikes for gender-based

reasons.

For both men, and Mr. Bell, in particular, who is

capitally-sentenced, the stakes could not be higher.

This Court once stated in another case originating

from North Carolina that “the penalty of death is

qualitatively different,” and “[b]ecause of that qualitative difference, there is a corresponding difference

in the need for reliability in the determination that

death is the appropriate punishment in a specific

70 See, e.g., Cruz, 598 U.S. at 17

(Arizona’s application of

Simmons v. South Carolina); Bosse v. Oklahoma, 580 U.S. 1

(2016) (per curiam) (Oklahoma’s application of Booth v. Maryland, 482 U.S. 496 (1987)); Wearry v. Cain, 577 U.S. 385 (2016)

(per curiam) (Louisiana’s application of Brady v. Maryland, 373

U.S. 83 (1963)); Hinton v. Alabama, 571 U.S. 263 (2014) (Alabama’s application of Strickland v. Washington, 466 U.S. 668

(1984)); Sears v. Upton, 561 U.S. 945 (2010) (per curiam) (Georgia’s application of Strickland); Porter v. McCollum, 558 U.S. 30

(2009) (per curiam) (Florida’s application of Eddings v. Oklahoma, 455 U.S. 104 (1982)); Smith v. Texas, 543 U.S. 37 (2004)

(Texas’ application of Penry v. Johnson, 492 U.S. 302 (1989)).

25

case.”71 It has likewise said that “discrimination in

the selection of jurors . . . places the fairness of a criminal proceeding in doubt.”72 For these reasons, the

Court should grant certiorari and carefully review the

case below.

CONCLUSION

For the foregoing reasons, this Court should grant

Petitioners’ petition for certiorari.

Respectfully submitted,

Ian A. Mance

EMANCIPATE NC

P.O. Box 309

Durham, NC 27702

ian@emancipatenc.org

Dated: September 19, 2025

71 Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

72 Powers v. Ohio, 499 U.S. 400, 411 (1991).