RACIAL DISCRIMINATION IN JURY SELECTION: FLOWERS V. MISSISSIPPI 2019

Sheri Johnson, Curtis Flowers attorney

On June 21, 2019, the United States Supreme Court in Flowers v. Mississippi reversed the murder conviction and sentence to the death of black defendant Curtis Flowers. Justice Brett Kavanaugh, writing for the majority stated that Curtis Flowers had not been provided with “(e)qual justice under law” because his criminal trial was not “free of racial discrimination in the jury selection process.” Justice Kavanaugh wrote that the decision broke “no new legal ground.”

The case before the Supreme Court involved the 1996 murder of four people in a Tardy Furniture Store in Winona, Mississippi. Curtis Flowers at that time was 26 years-old. The prosecution’s theory was that Flowers was a disgruntled former employee of Tardy’s who had been fired. The same District Attorney, Doug Evans, prosecuted Curtis six times. Two trials resulted in hung juries and the Mississippi Supreme Court reversed three other convictions for prosecutorial misconduct and racial bias in jury selection. The Mississippi Supreme Court upheld the sixth conviction and death penalty in which the jury was composed of one black man and 11 whites. It was the sixth conviction and sentence that was before the United States Supreme Court.

Justice Kavanaugh’s opinion meticulously explored the trial record and found instances suggesting racial bias played a part in the exercise of the District Attorney’s peremptory challenges. He wrote the following in referring to the first four trials that spanned a decade, “We cannot ignore the history. We cannot take that history out of the case.” During the six trials, Evans had struck 41 of 42 black jurors, including five of the six black jurors in the case before the United States Supreme Court. Justice Kavanaugh wrote, “The state’s decision to strike five of the six black prospective jurors is further evidence suggesting that the state was motivated in substantial part by discriminatory intent.”

Justice Kavanaugh also pointed to “dramatically disparate questioning” of black prospective jurors in order to find a pretext for exercising a peremptory challenge. He noted that District Attorney Evans asked black jurors an average of 29 questions in contrast to the 11 questions of white prospective jurors—an average of one question each.

Additionally, Justice Kavanaugh pointed out that the one black prospective juror who was “similarly situated to white jurors who were not struck by the State.”

Justice Kavanaugh concluded as follows regarding the accumulated facts:

We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U.S. ___, ____(2016) (slip op. at 23) (internal quotation marks omitted). In reaching that conclusion, we break on new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.

Justice Clarence Thomas wrote a scathing dissent (in which Justice Gorsuch partially joined), that ended as follows:

If the Court’s opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again. Otherwise, the opinion distorts our legal standards, ignores the record, and reflects utter disrespect for the careful analysis of the Mississippi courts. Any competent prosecutor would have exercised the same strikes as the State did in this trial. And although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families. I respectfully dissent.

For a thorough discussion of Batson,  consult Jury Selection Handbook.