Justices Express Concern About ​“Disturbing History” of Race Bias in Mississippi Death Penalty Case

The U.S. Supreme Court seems poised to grant a new tri­al to Curtis Flowers (pic­tured), an African-American death-row pris­on­er tried six times for the same mur­ders by a white Mississippi pros­e­cu­tor who struck near­ly every black juror from ser­vice in each of the tri­als. During oral argu­ment in Flowers v. Mississippi on March 20, 2019, eight jus­tices expressed con­cern that Flowers had been denied a fair tri­al as a result of race dis­crim­i­na­tion in jury selec­tion in his case. Justice Samuel Alito called the case ​“very trou­bling” and Justice Brett Kavanaugh raised con­cerns about pros­e­cu­tor Doug Evans’ pat­tern of dis­crim­i­na­tion.

Flowers has been tried six times for a quadru­ple mur­der in Winona, Mississippi in 1996. His first three con­vic­tions were over­turned by the Mississippi Supreme Court as a result of pros­e­cu­to­r­i­al mis­con­duct. Two of those rever­sals includ­ed find­ings that Evans had vio­lat­ed Batson v. Kentucky, the land­mark 1986 Supreme Court deci­sion bar­ring the use of dis­cre­tionary strikes to remove jurors on the basis of race. Flowers’ fourth and fifth tri­als — the only tri­als in which more than one black juror was empan­eled — end­ed in hung juries. At issue before the Court was Flowers’ sixth tri­al, in which a jury of 11 white jurors and one black juror con­vict­ed him and sen­tenced him to death.

The jus­tices focused many of their ques­tions on the records show­ing that Evans had a pat­tern of racial dis­crim­i­na­tion in select­ing the juries for Flowers’ tri­als. Over the course of the five tri­als for which jury selec­tion tran­scripts are avail­able, Evans struck 41 of 42 eli­gi­ble black jurors he had the oppor­tu­ni­ty to accept. Justice Kavanaugh said, ​“When you look at the 41 out or 42, how do you look at that and not come away think­ing that was going on here was … a stereo­type that you’re just going to favor some­one because they’re the same race as the defen­dant?” Justice Alito said that Evans’ his­to­ry left ​“rea­sons to be sus­pi­cious,” and said the case had an ​“unusu­al and real­ly dis­turb­ing his­to­ry.” Justice Sonia Sotomayor ques­tioned Evans’ motives in per­son­al­ly pros­e­cut­ing Flowers six times. Jason Davis, the lawyer argu­ing on behalf of the state of Mississippi, acknowl­edged that the his­to­ry was ​“trou­bling,” but argued that Evans’ jury strikes in the sixth tri­al were not racial­ly moti­vat­ed. Kavanaugh chal­lenged Davis, say­ing, ​“Part of Batson was about con­fi­dence of the com­mu­ni­ty and the fair­ness of the crim­i­nal jus­tice sys­tem. That was against a back­drop of a lot of decades of all-white juries con­vict­ing black defen­dants …. Can you say you have con­fi­dence in how this all tran­spired in this case?”

Sheri Lynn Johnson, argu­ing on behalf of Flowers, said Evans entered Flowers’ tri­al ​“with an uncon­sti­tu­tion­al end in mind – to seat as few African-American jurors as he could.” ​“The his­to­ry is rel­e­vant,” she said, call­ing it ​“a his­to­ry of a desire for an all-white jury, a his­to­ry of will­ing­ness to vio­late the Constitution, and a his­to­ry of will­ing­ness to make false state­ments to a tri­al court.” She urged the jus­tices to con­sid­er the pat­tern of dis­crim­i­na­tion, not just Evans’ actions in the most recent tri­al. If the Court over­turns Flowers’ con­vic­tion, the case will return to the state to decide whether to try Flowers for a seventh time.

(Mark Sherman, Supreme Court trou­bled by jury selec­tion bias in Mississippi, Associated Press, March 20, 2019; Tony Mauro, Kavanaugh Takes Lead Role Favoring Mississippi Death Row Inmate, The National Law Journal, March 20, 2019; Richard Wolf, Six tri­als for same mur­ders: Supreme Court frowns on racial jury selec­tion tac­tics of Mississippi pros­e­cu­tor, USA Today, March 20, 2019; David G. Savage, Supreme Court appears set to over­turn Mississippi mur­der case based on racial bias, Los Angeles Times, March 20, 2019.) Read the tran­script of the oral argu­ment in Flowers v. Mississippi. See Race, Prosecutorial Misconduct, and U.S. Supreme Court.