July 25, 2019, Trial News | The American Association For Justice

July 25, 2019, Trial News

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SCOTUS overturns murder conviction and censures racially biased jury selection

Mandy Brown

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The U.S. Supreme Court has overturned the conviction of Curtis Flowers, a black man from Mississippi who has been tried six separate times by the same district attorney for the 1996 murders of four people. In an opinion by Justice Brett Kavanaugh, the Court ruled 7-2 that the “trial court committed clear error” by not finding that the prosecution’s peremptory strike of a black prospective juror was unconstitutionally “motivated in substantial part by discriminatory intent.”
 

The U.S. Supreme Court has overturned the conviction of Curtis Flowers, a black man from Mississippi who has been tried six separate times by the same district attorney for the 1996 murders of four people. In an opinion by Justice Brett Kavanaugh, the Court ruled 7-2 that the “trial court committed clear error” by not finding that the prosecution’s peremptory strike of a black prospective juror was unconstitutionally “motivated in substantial part by discriminatory intent.” (Flowers v. Mississippi, 139 S. Ct. 2228 (2019)). The case now returns to Mississippi where the district attorney who has unsuccessfully prosecuted Flowers six times before remains in office and may try Flowers for the seventh time.  

Flowers—who has been on death row for more than 20 years—began receiving national attention in 2018 after a popular podcast highlighted the “extraordinary facts” of his case. After four people were shot and killed in a Mississippi furniture store where he had worked briefly, Flowers was convicted of murder and sentenced to death in two separate jury trials in 1997 and 1999. Both times, the Mississippi Supreme Court overturned the convictions, citing prosecutorial misconduct for, among other things, arguing facts not in evidence. The state high court also overturned Flowers’s third conviction, finding that flawed jury selection in that 2004 trial provided “as strong a prima facie case of racial discrimination as we have ever seen.”

Flowers’s fourth and fifth trials in 2007 and 2008 resulted in hung juries and mistrials. At his sixth trial in 2010, he was convicted and sentenced to death, and the state high court affirmed. Flowers petitioned the U.S. Supreme Court, which remanded the case to the Mississippi high court. In 2017, the state court affirmed the conviction.

In late 2018, the Supreme Court granted a new petition from Flowers to review whether the trial court erred in the sixth trial when applying Batson v. Kentucky (476 U.S. 79 (1986)), which prohibits a state from “discriminating on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.”

The Court first reviewed the case’s unique history, emphasizing that the state had attempted to strike all 36 black prospective jurors over Flowers’s first four trials. (Jury selection records from the fifth trial are not available.) These numbers, it found, “speak loudly” as evidence of discriminatory intent, as did the Mississippi high court’s conclusion that the prosecution violated Batson in the third trial. The Court wrote that this history and context, from which it “cannot just look away,” must be considered when evaluating the prosecution’s use of peremptory strikes in the sixth trial.

In that trial, the prosecutor used peremptory challenges to strike five of the six black prospective jurors. The prosecutor also engaged in “dramatically disparate questioning” of black and white prospective jurors, with black prospective jurors facing many more questions. Although this type of disparate questioning does not automatically indicate a Batson violation, the Court said, it can “supply a clue that the prosecutor may have been seeking to paper the record and disguise a discriminatory intent,” particularly when combined with other evidence of bias.

The Court then focused on one black prospective juror, Carolyn Wright, who the state claimed was removed because she knew several defense witnesses, including Flowers’s father. During voir dire, Wright was questioned extensively about these relationships while white jurors who were “similarly situated” and also knew people involved in the case were not asked any follow-up questions about these connections. This, the Court found, was a “telling statistic” that undermined the state’s justification for striking Wright and provided further evidence that its peremptory strike of Wright was racially motivated. Given this discrepancy and “all of the relevant facts and circumstances” surrounding the state’s decades-long prosecution of Flowers, the Court found that the lower court had clearly erred by not finding that the prosecutor violated Batson when striking Wright from the jury.

Christopher Kemmitt, counsel of record on the amicus brief the NAACP Legal Defense and Educational Fund filed in support of Flowers, said the decision makes clear that courts reviewing Batson cases cannot take prosecutors’ justifications at face value. “The prosecutor provided race-neutral justifications that were superficially plausible for every strike he made. Many courts would stop the inquiry there and let him get away with blatant racial discrimination. But the Supreme Court didn’t. It made clear that courts are obligated to look at all of the relevant evidence—they cannot simply rubber-stamp a prosecutor’s self-interested explanations and declare their job finished.”

Kemmitt advised attorneys challenging racially biased jury selection to remember the Court’s careful review of Flowers’s extensive case history. “I think its most important lesson for defense attorneys is that historical evidence of discrimination matters. Courts may view disproportionate strikes of minority jurors in a single trial as a statistical fluke; they cannot easily ignore the same pattern over several trials or several years of trials. Defense attorneys and public defender organizations should do everything they can to collect data regarding prosecutors’ use of peremptory challenges. In all likelihood, that data will reveal a troubling pattern of racially disparate challenges that prosecutors cannot easily explain away.”

Although Flowers’s conviction has been overturned, he remains imprisoned—and may be tried again. In a lengthy dissent, Justice Clarence Thomas, joined in part by Justice Neil Gorsuch, strongly criticized the majority, questioning both its decision to grant Flowers’s petition and its decision to overturn his conviction. “If the Court’s opinion today has a redeeming quality,” Justice Thomas wrote, “it is this: The State is perfectly free to convict Curtis Flowers again.”