January 18th, 2021

On Law

Supreme Court tosses murder conviction in case that raised question of racial bias

 Robert Barnes

By Robert Barnes The Washington Post

Published June 24, 2019

Supreme Court tosses murder conviction in case that raised question of racial bias
WASHINGTON - The Supreme Court on Friday threw out the most recent conviction of a Mississippi man who has been tried an extraordinary six times for a quadruple murder in 1996, finding that a zealous prosecutor once again had improperly kept African Americans off the jury.

The decision was 7-2, with Justice Brett Kavanaugh writing the majority opinion. He said it broke no new legal ground in dismissing the conviction and death sentence of Curtis Flowers, but reinforced the court's rulings about when a prosecutor's bias eliminated a potential juror.

Kavanaugh said District Attorney Doug Evans used his allotted challenges to strike 41 of 42 black proposective jurors.

"The state's relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury," Kavanaugh wrote, adding:

"We cannot ignore that history."

Justice Clarence Thomas and Neil Gorsuch dissented. Thomas went so far as calling for the court to junk its 1986 decision in Batson v. Kentucky, which says potential jurors cannot be excluded because of their race, and lawyers must provide a nondiscriminatory explanation for striking them.

Thomas, who broke three years of silence on the bench to ask a question during oral arguments in the case about Flowers' lawyers striking white potential jurors, said the court's decision was "manifestly incorrect."

"Today's decision distorts the record of this case, eviscerates our standard of review, and vacates four murder convictions because the state struck a juror who would have been stricken by any competent attorney," he wrote.

He added: "If the court's opinion today has a redeeming quality, it is this: The state is perfectly free to convict Curtis Flowers again."

Sheri Lynn Johnson, who argued the case at the Supreme Court, said that would be wrong.

"That Mr. Flowers has already endured six trials and more than two decades on death row is a travesty," she said in a statement. " A seventh trial would be unprecedented, and completely unwarranted given both the flimsiness of the evidence against him and the long trail of misconduct that has kept him wrongfully incarcerated all these years. We hope that the State of Mississippi will finally disavow Doug Evans' misconduct, decline to pursue yet another trial, and set Mr. Flowers free."

Six times, Evans, a longtime prosecutor who is white, has attempted to convict Flowers, who is black, in a prosecutorial pursuit that may be without parallel. Flowers was charged with executing four people inside Tardy Furniture Store in the small town of Winona, Mississippi, in 1996.

Two trials, the only ones with more than one African American on the panel, resulted in hung juries. Three convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct and improper maneuvering by Evans to keep African Americans off the jury.

But the state said Evans had offered race-neutral reasons in the most recent trial, in 2010, when the prosecutor struck five of six black potential jurors. Flowers was convicted of murdering Bertha Tardy, 59, and store employees Carmen Rigby, 45, Robert Golden, 42, and 16-year-old Derrick "Bo Bo" Stewart, and sentenced to death.

The Supreme Court was not considering the evidence against Flowers, but instead examining Evans's prosecutorial tactics.

When picking a jury, some potential panel members are eliminated by the judge and lawyers for cause - that they have a conflict of interest, for instance, or because they say in a capital case that they could not impose the death penalty.

Prosecutors and defense attorneys also receive what are known as peremptory challenges. They can strike potential jurors they simply don't want on the jury, and generally those choices cannot be second-guessed.

But in Batson, the Supreme Court said the challenges could not be used to strike a potential juror because of his or her race. (Gender was later added as a forbidden purpose.)

In a more recent decision, the court said judges should consider the "totality of the circumstances" when deciding whether a prosecutor was using the challenges as a pretext for barring jurors because of their race.

Flowers's lawyers said that means looking at Evans's work in previous trials, not just the most recent one.

The court majority agreed.

Kavanaugh, who as a law student at Yale wrote a paper about enforcement of Batson, said "four critical facts" required reversal of the latest conviction of Flowers.

One was the history of striking potential jurors who were black. Second was the state using peremptory strikes against five of six African Americans. Third was the state's "dramatically disparate questioning" of black and white potential jurors. And the fourth was striking at least one black prospective juror, Carolyn Wright, who was similarly situated to whites who were accepted.

"In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many," Kavanaugh wrote., adding "we cannot look away."

Justice Samuel Alito Jr. wrote separately to say that in an ordinary case, he would not have found Evans's jury selection in the most recent trial a violation. "But this is not an ordinary case, and the jury selection process cannot be analyzed as if it were."

Thomas criticized his colleagues for accepting the case, speculating that there were motivated by either a "scorn" of courts in Southern states, or the media attention the Flowers case received.

The case was the subject of an award-winning podcast by American Public Media called "In the Dark," which featured a recantation of a jailhouse informant who had testified Flowers confessed to him.

That was not considered by the Supreme Court, but is part of a separate appeal in state court. "The media often seeks "'to titillate rather than to education and inform," Thomas wrote, quoting a phrase from a 1981 Supreme Court opinion.

He devoted a part of his dissent - which Gorsuch did not join - to criticism of Batson.

"Much of the court's opinion is a paean to Batson v. Kentucky, which requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury," Thomas wrote. "That rule was suspect when it was announced, and I am even less confident of it today."

In a tart conclusion, Thomas wrote: "Although the curt's opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims' families. "

The case is Flowers v. Mississippi.

Sign up for the daily JWR update. It's free. Just click here.