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Black Jurors Exclusion in Death Row Case Gets High Court Airing

March 13, 2019, 11:00 AM

That a man was tried six times for the same crime is remarkable enough.

But it’s a Mississippi prosecutor’s pattern of excluding black jurors from the trials of Curtis Flowers—a black man facing execution—that’s the focus of upcoming U.S. Supreme Court arguments.

The decision in the case, expected by late June, “will tell us a lot about the Court’s commitment to eradicating jury discrimination,” said Chris Kemmitt, senior counsel at the NAACP Legal Defense & Educational Fund, Inc., which filed an amicus brief supporting Flowers.

The case is a test of the Constitution’s promises of equality and fair trials. It’s also a test of how the Roberts Court interprets those promises in 2019.

Jury Selection Record

At issue in the appeal is whether Mississippi’s top court correctly applied the Supreme Court’s landmark jury selection precedent when it condoned white District Attorney Doug Evans’ alleged aversion to black people deciding Flowers’ fate, as the state prosecutor serially struck African Americans from juries in his trials. The case is set for argument March 20.

Now Flowers’ fate is in the hands of the justices, including Brett M. Kavanaugh, who has advocated robust protections for criminal defendants during jury selection.

All eyes will be on the newest justice, and on Chief Justice John G. Roberts, Jr., too. Roberts has been especially in the spotlight of late, as he has come to occupy the swing vote on the court after Justice Anthony M. Kennedy’s retirement last year, joining Democratic-appointed justices in recent rulings for defendants.

The question is whether a majority of the court will save Flowers from his impending execution for the murders of four Tardy Furniture Store employees in Winona in 1996.

“If the Court accepts the word of Doug Evans at face value—despite his repeated acts of jury discrimination, despite his repeated lies about that jury discrimination, and despite the dubious nature of his claims in Mr. Flowers’ current case—it will send a message that prosecutors can discriminate at will so long as they take the most basic of steps to cover their tracks,” said Kemmitt.

The state’s lawyer didn’t respond to a request for comment on the case. Flowers’ lawyer declined comment.

The death row inmate Flowers maintains his innocence, citing a lack of evidence or motive, as well as problematic witnesses whose testimony helped Evans win convictions.

Focusing on the jury issue at the high court, he wants the justices to take into account Evans’ jury selection record throughout all of the trials—he blocked black jurors 41 out of 43 times when he could—instead of just the most recent one, where he accepted one black juror and then blocked the next five potential ones, creating a nearly all-white jury that sentenced Flowers to death.

Flowers has outside support in his high court fight not only from NAACP LDF—which casts Evans’ tenure as DA for Mississippi’s Fifth Judicial District as the latest chapter in a sordid history of racial discrimination there—but also from former Justice Department officials, who are concerned that “a belief among the public that justice is not fair and evenhanded undermines both the mission of the Department of Justice and the rule of law itself.”

Six Trials, Now Back on Appeal

Jury selection is a game of strategy.

Defendants and prosecutors each get a certain number of potential jurors they’re allowed to “strike,” or prevent from sitting on the jury. Those are called “peremptory” strikes, and, generally, neither side has to give a reason for why they use them.

But peremptory strikes can’t be used solely for the purpose of striking black jurors.

Under the Supreme Court’s 1986 decision in Batson v. Kentucky, if defendants can show a pattern of apparently racially motivated strikes, then it’s up to prosecutors to put forth race-neutral reasons to explain them. Judges decide whether to credit those neutral explanations or dismiss them as unlawful ruses.

Flowers’ first five trials—two of which only involved one of the four victims—ended either with hung juries or convictions that got overturned on appeal due to various forms of misconduct by Evans, including racial discrimination in jury selection. Evans was lead prosecutor in all six trials beginning in 1997 up through the most recent one in 2010.

At the first two trials, the state peremptorily struck all 10 black prospective jurors. At the third and fourth trials, all 26 of the state’s strikes were directed at black panelists. At the sixth trial, the state accepted the first black panelist, then struck the next five. Race information isn’t available for the fifth trial, Flowers says.

His appeal after his sixth trial made it to the Supreme Court once before. In 2016, the justices vacated Flowers’ convictions and sentence, sending his case back to the Mississippi top court in light of a then-Supreme Court ruling interpreting Batson, Foster v. Chatman, where the court condemned a Georgia state prosecutor’s striking of all four prospective black jurors who were qualified to serve. Justice Clarence Thomas was the only one who dissented in Foster. He and Justice Samuel A. Alito Jr. both dissented from their colleagues’ decision to upend Flowers’ convictions and sentence in light of Foster in 2016.

But after the high court majority sent Flowers’ case back to Mississippi, the state’s top court again ruled against him in 2017, reinstating his convictions and death sentence. It’s that decision that’s before the justices now.

Batson, Kavanaugh

Flowers argues that Evans asked prospective jurors questions “not for their value in revealing bias, but for the cover their answers might give.” Evans “did not ask white panelists as many, or as probing questions because he did not plan to strike them.”

In its latest decision upholding Flowers’ convictions and death sentence, he says, the state top court “ignored Evans’ history in determining whether the race-neutral reasons Evans proffered were pretextual; deferentially reviewed each proffered reason; and never considered the totality of the evidence of racial motivation.” He wants the justices to take a more holistic view.

The state counters that the prospective black jurors “were struck based on valid race-neutral reasons which were not the product of pretext.” It cites purportedly race-neutral reasons for not wanting them on the jury, including various levels of personal and professional relationships with Flowers or members of his family.

Notably, when he was a law student at Yale, Kavanaugh wrote about Batson in a defense-friendly way.

“The problem with detection of racial discrimination in the jury selection process extends beyond discovering overt racism,” Kavanaugh wrote in the Yale Law Journal in 1989.

“Examples of subtle stereotyping and racism point out the need to require defense rebuttal of the prosecution’s reasons, since arguably much racism and racial stereotyping is lodged in the subconscious and will stay there unless forced into the open,” Kavanaugh went on. “Courts must not allow the spirit of Batson to be diminished by misguided allegiance to the peremptory challenge.”

The case is Flowers v. Mississippi, U.S., 17-9572, oral argument set for 3/20/19.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com