Flowers v. Mississippi: Oral Argument Briefing

On June 21, 2019, the United States Supreme Court vacated Curtis Flowers’ conviction in a 7-2 decision. For more information about the opinion, read DPIC’s summary here. See also Supreme Court Vacates Conviction in Mississippi Death Penalty Case Finding Race Discrimination in Jury Selection.

Pre-Oral Argument Summary

Mississippi death-row prisoner Curtis Giovanni Flowers has been tried six times for a quadruple murder in Winona, Mississippi. His first three trials were reversed because of prosecutorial misconduct, and his next two trials ended in hung juries. The lead prosecutor for each trial was Doug Evans, the District Attorney in Mississippi’s Fifth Circuit Court District. In 2010, Flowers’ sixth trial ended in a conviction and death sentence, and Flowers appealed to the Mississippi Supreme Court. On appeal, Flowers argued that Evans, continuing to exhibit a pattern of racially discriminatory behavior, unconstitutionally removed black people from Flowers’ jury. The Mississippi Supreme Court rejected this argument and affirmed Flowers’ conviction and death sentence even after the U.S. Supreme Court sent the case back for reconsideration. On November 2, 2018, the U.S. Supreme Court agreed to review Flowers’ case for a second time by granting certiorari in Flowers v. Mississippi, No. 17-9572.

Supreme Court review of Flowers’ case

The U.S. Supreme Court has agreed to review whether Evans, a prosecutor with a long history of racially discriminatory jury-selection practices, unconstitutionally struck black jurors in Flowers’ sixth trial. The court granted review on the question of “Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U. S. 79 (1986), in this case.” The Supreme Court’s Batson decision prohibits the use of discretionary jury strikes (“peremptory strikes”) to remove people from juries because of their race. Under the procedure created in Batson, the defense must make an initial (“prima facie”) case that peremptory strikes were based on racial discrimination. The prosecution must then justify the strikes with race neutral reasons, and the court must decide whether the strikes were discriminatory. The court is obligated to rely on “all relevant circumstances” in making this final decision. See Miller-El v. Dretke, 545 U.S. 231 (2005).

This is the second time that the Supreme Court has reviewed discriminatory jury selection in Flowers’ case. In 2016, the United States Supreme Court granted certiorari, vacated and remanded the case “for further consideration in light of Foster v. Chatman, 136 S. Ct. 1737 (2016).” On remand, the Mississippi Supreme Court again affirmed, with three justices dissenting. The court wrote: “The prior adjudications of the violation of Batson do not undermine Evans’ race neutral reasons” for striking black jurors at this trial and “the historical evidence of past discrimination … does not alter our analysis.” Flowers v. Mississippi, 240 So.3d 1082, 1124 (Miss. 2018).

Prosecution Strikes in Flowers' Six Trials

Trial #	# of African Americans on jury	# of strikes excluding African Americans	Result
1	0	5	Overturned for prosecutorial misconduct
2	1	5	Overturned for prosecutorial misconduct (one strike disallowed at trial for racial discrimination)
3	1	15	Overturned for racial discrimination in jury selection
4	5	11	Hung Jury (non-capital)
5	Unknown	Unknown	Hung Jury
6	1	5	Pending

Use of peremptory strikes in Flowers’ trials

Evans’ team struck nearly all of the African-American jurors in each of Flowers’ trials. In the first and second trials, the prosecution struck all African Americans with the exception of one attempted strike that was disallowed because the judge found the strike racially discriminatory. In the third trial, the prosecution used all available strikes against African Americans, and the only African American left on the jury was seated after the prosecution ran out of strikes. The Mississippi Supreme Court found this to be “as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge,” Flowers v. State, 947 So.2d 910, 935 (Miss. 2007). In the fourth trial, the prosecution stipulated that it was not seeking the death penalty for the capital murder charges, which meant that African Americans were not excluded initially for disagreeing with the death penalty. (The defense argued that Evans used the practice of “death qualification” in capital cases to disproportionally disqualify African Americans.) As a result, even though the prosecution used all of its eleven strikes to exclude African Americans, five African Americans sat on Flowers jury. This case ended in a hung jury. Jury selection records are not available for Flowers’ fifth trial, which also ended in a hung jury. In the sixth trial, the prosecution accepted the first qualified African-American potential juror and then struck the five remaining African Americans in the jury pool.

An in-depth analysis of the case and broader patterns of discrimination

A study of jury selection in Mississippi’s Fifth Circuit Court District during Evans’ tenure found that over the 26-year period from 1992 to 2017, Evans’ office struck black prospective jurors at nearly 4½ times the rate at which it struck white prospective jurors. The study, conducted by American Public Media, in association with its podcast series, In the Dark, looked at 225 trials and the strikes or acceptances of more than 6,700 jurors. The podcast series also investigated questions about Flowers’ innocence. The investigative report showed that Flowers was convicted based on questionable circumstantial evidence and the testimony of a jailhouse informant (who has since recanted) that Flowers had confessed to the murders.

Arguments Before the U.S. Supreme Court

At the Supreme Court, Flowers is arguing that Mississippi courts failed to consider the totality of the circumstances of the prosecution’s strikes, including Evans’ history of discrimination and dishonesty in Flowers’ past trials. The State of Mississippi argues that the prosecution’s jury strikes were justified by non-pretextual race neutral reasons. Several amicus briefs have been filed in support of Flowers. The NAACP Legal Defense Fund filed an amicus brief explaining the long history of discrimination against African Americans in jury selection, discussing DA Evans’ history of racial discrimination, and urging the Supreme Court to enforce the rights protected by Batson. Former U.S. Department of Justice officials submitted a brief highlighting the importance of non-discrimination in jury selection to support the fair administration of justice and to foster public trust. The Magnolia Bar Association, the Mississippi Center for Justice, and the Innocence Project New Orleans filed a brief arguing that the prosecution’s discrimination in jury selection sought to use existing racial divides to secure Flowers’ conviction despite meager evidence of his guilt.