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).

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.

Resources on Flowers v. Mississippi

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