A new study shows that the Mississippi District Attorney's office that has prosecuted Curtis Flowers for capital murder six times—striking almost all black jurors in each trial—has disproportionately excluded African Americans from jury service for more than a quarter century. Reviewing the exercise of discretionary jury strikes in 225 trials between 1992 and 2017, American Public Media Reports discovered that during the tenure of Mississippi's Fifth Circuit Court District Attorney Doug Evans (pictured) prosecutors have exercised peremptory strikes to exclude African Americans from jury service at nearly 4½ times the rate at which they struck white jurors. APM Reports collected and analyzed data on more than 6,700 jurors called for jury service in the the Fifth District. Its study—which was reviewed before its release by a statistics expert and two law professors who had conducted prior jury-strike studies—found that Fifth District prosecutors struck 50 percent of all eligible black jurors compared to only 11 percent of eligible whites. Looking at potentially race-neutral factors raised during juror questioning, APM Reports found that prosecutors were still far more likley to strike black jurors than similarly situated white jurors (click here to enlarge graph). Controlling for these factors, the study found that the odds prosecutors would strike a black juror were six times greater than the odds that they would strike a white juror. APM Reports prepared the study in connection with its acclaimed podcast series In the Dark, which this season focuses on the Flowers case. Evans' office has been scrutinized for alleged race-related abuses of powers during the course of Flowers' six trials for the murder of four furniture store employees. Flowers has consistently professed his innocence. In his first three trials, Flowers was convicted and sentenced to death by all-white or nearly all-white juries. In each of these cases, the state Supreme Court overturned the convictions and ordered new trials. Just before the second trial, Flowers' parents' house burned down. Shortly afterwards, his mother was told of a threat made by a white resident that, "If they let that n----- go, another house is going to burn." Jurors deadlocked in Flowers' fourth and fifth trials, split along racial lines. All the white jurors voted for death in both of those trials. Only one black juror served on the sixth jury, and Flowers was sentenced to death in that trial. Although it is unconstitutional to exclude jurors from service based on race, the practice is ubiquitous in many jurisdictions that heavily use the death penalty. Over the course of 332 criminal trials in CaddoParish, Louisiana in the decade from 2003-2012, prosecutors struck black jurors at more than triple the rate of other jurors, approximately the same disproportionate rate at which black jurors were struck in 35 cases resulting in death sentences in South Carolina in the fifteen years between 1997-2012. In 173 capital cases tried over a twenty-year period in North Carolina, and in more than 300 capital trials over more than two decades in Philadelphia, Pennsylvania, prosecutors struck black jurors twice as frequently as other jurors. Most recently, in Georgia, Johnny Gates, who was sentenced to death in Columbus, Georgia in 1977, has challenged his conviction with evidence that his prosecutors struck every black juror they could in the seven capital trials they prosecuted between 1976 and 1979, empaneling all-white juries in six of those cases. 

A new documentary airing on ABC tells the stories of Darlie Lynn Routier and Julius Jones, two death-row prisoners who have long argued they were wrongfully convicted. The Last Defense, produced by Oscar- and Emmy-winning actress Viola Davis and her husband Julius Tennon, focuses its first four episodes on Routier, a Texas woman convicted of killing her young son, then highlights Jones, a Black man who was a 19-year-old college student when he was arrested for the murder of a White businessman. Routier says an intruder broke into her home, killed her 5- and 6-year-old sons, and stabbed her while her husband and youngest son slept upstairs. Police concluded that Routier had staged the break-in and quickly named her as the suspect in her sons' murders. Her trial in the death of the younger child began only seven months after the murders and lasted only two days. Her attorneys say she did not receive adequate representation at trial, and that her trial attorney failed to counter forensic evidence against her because he had a conflict of interest, having previously represented Routier's husband in an unrelated case. Though a court has ordered DNA testing that could verify Routier's burglary story, bureaucratic delays have kept her waiting on death row. A June 19, 2017 status report on the testing said, “In May 2017, counsel in the Dallas County District Attorney (office) learned the materials that were supposed to have been transported to the Department of Public Safety for DNA testing, as the state trial court’s testing order had required, had never been transported to DPS.” Jones, who is on death row in Oklahoma, had been a high school athlete and honor student who did not fit the description of the shooter. Like Routier, he is seeking DNA testing that he believes will prove his innocence. Jones's case raises claims of ineffective counsel, and the series explores the role of race in his trial, as a young Black man accused of killing a White man in a suburban neighborhood. Jones has an appeal pending in the U.S. Supreme Court asking the Court to review the race discrimination in his case. Data from a 2017 study of race and the death penalty shows that, in Oklahoma, defendants convicted of killing White victims are more than twice as likely to be sentenced to death as those convicted of killing victims of color, and that among these White-victim cases, defendants of color were then nearly twice as likely as White defendants to be sentenced to death. The Last Defense airs Tuesdays on ABC.

In the midst of a sharp decline in death sentences in the state, the Georgia Supreme Court on June 4 heard a direct appeal in a capital case for the first time in two years. In March 2018, Georgia reached the four-year mark since it had last imposed a death sentence, a dramatic change for a state that once handed down 15 death sentences in a single year. The decline in Georgia's death penalty exemplifies broader national death-penalty trends. In 1987, when Georgia handed down those 15 death sentences, 288 people were sentenced to death across the country. Thirty years later, in 2017, Georgia was completing its third consecutive calendar year with no death sentences, and the national total was just 39. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, credits the public's preference for life without parole (LWOP) sentences, saying the availability of LWOP has made a "huge difference." "[W]hen you sit down with victims’ families and discuss the process of a death-penalty case with all the pretrial hearings, then the years of appeals that follow, I have found that families like the finality of life without parole. It lets them get on with their lives," he said. Other prosecutors have found that the reluctance of juries to impose death sentences has made them less likely to seek death. Gwinnett County District Attorney Danny Porter called it "a self-fulfilling prophesy," noting, "As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort." The Georgia capital defender office's early intervention program has also reduced the number of death sentences by presenting prosecutors with reasons to decapitalize a case and reaching plea deals before a trial begins. Jerry Word, who leads that office, said, "The average time to resolve a case in early intervention has been less than eight months. The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county." Although prosecutors are seeking and juries imposing fewer and fewer death sentences, Georgia has continued to carry out controversial executions of defendants who likely would not be sentenced to death today. These include the December 2015 and March 2018 executions of Brian Keith Terrell and Carlton Gary, despite evidence that they may have been innocent; the May 2018 execution of Robert Earl Butts, Jr., although no Georgia jury has sentenced any defendant to death in the past decade in a case like his that involved a single victim and only one aggravating circumstance; executions of several men whose equally or more culpable co-defendants received lesser sentences; and prisoners who were intellectually disabled. The U.S. Supreme Court also has ruled against Georgia in three capital cases since 2016, Foster v. Chatman, involving race discrimination in jury selection; Tharpe v. Sellers, involving a juror who said he doubted whether black people had souls; and Wilson v. Sellers, which presented a procedural habeas corpus issue.

In a ruling three dissenters criticized as an "outlier," and after having been rebuked by the U.S. Supreme Court in 2017 for ignoring the medical consensus defining intellectual disability, a sharply divided (5-3) Texas Court of Criminal Appeals (CCA) has upheld the death sentence imposed on Bobby James Moore (pictured) 38 years ago. On June 6, 2018, the CCA ruled that Bobby Moore is not intellectually disabled under the most recent clinical definition of the disability and may be executed, despite a finding by a trial court judge, a concession from the Harris County District Attorney's office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. Harris County prosecutors had filed a brief with the CCA, stating, "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution." In a forceful dissent, Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, catalogued the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability and wrote: "There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief." Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County trial court. After making credibility determinations about the lay and expert testimony it heard, that court agreed that Moore had intellectual disability as defined by contemporary medical diagnostic criteria. However, the CCA reversed, applying an idiosyncratic set of criteria known as "Briseño factors" (named after the Texas court decision that announced them), which were based on unscientific stereotypes, including the behavior of a fictional character from Of Mice and Men. Last year, in Moore v. Texas, the U.S. Supreme Court unanimously struck down Texas' use of that criteria, saying that a court's intellectual disability determination must be "informed by the medical community’s diagnostic framework." The Court criticized the manner in which the CCA assessed Moore's significant deficits in adaptive functioning, saying the CCA had improperly focused on the adaptive skills Moore possessed, rather than the clinically required assessment of his areas of diminished functioning. It also said the CCA had improperly based its judgment on Moore's adaptive deficits on how he was able to function in the highly regimented prison setting. The dissent emphasized that the majority again gave improper consideration to these factors in reaching its conclusion that Moore was not intellectually disabled, and said the court had misapplied current medical standards and failed to defer to the trial court's credibility rulings. As a result, the dissent said, the CCA "essentially continues to determine that mildly intellectually disabled people are subject to the death penalty in contravention of the Supreme Court’s holding in Moore."