Supreme Court Vacates Conviction in Mississippi Death Penalty Case Finding Race Discrimination in Jury Selection

Finding that a Mississippi pros­e­cu­tor had inten­tion­al­ly struck black jurors in an attempt to empan­el as white a jury as pos­si­ble, the United States Supreme Court has over­turned the con­vic­tion of death-row pris­on­er Curtis Giovanni Flowers. The Court’s 7 – 2 deci­sion on June 21, 2019, found that Mississippi’s Fifth Circuit Court District Attorney Doug Evans had under­tak­en extra­or­di­nary efforts to pre­vent African Americans from serv­ing as jurors in six tri­als in which he has pros­e­cut­ed Flowers for the same racial­ly-charged quadru­ple mur­der in Winona, Mississippi in 1996. ​“Equal jus­tice under law requires a crim­i­nal tri­al free of racial dis­crim­i­na­tion in the jury selec­tion,” Justice Brett Kavanaugh wrote for the Court major­i­ty. Evans’ ​“relent­less, deter­mined effort to rid the jury of black indi­vid­u­als,” he said ​“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.”

Evans per­son­al­ly pros­e­cut­ed Flowers in each of the six tri­als. The first three con­vic­tions were over­turned by the Mississippi Supreme Court as a result of pros­e­cu­to­r­i­al mis­con­duct, with the court twice find­ing that Evans had uncon­sti­tu­tion­al­ly used his dis­cre­tionary strikes against black 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. In Flowers’ sixth tri­al, a jury of 11 white jurors and one black juror con­vict­ed him and sen­tenced him to death.

Writing for the Court, Justice Kavanaugh said that four sep­a­rate types of evi­dence had per­suad­ed the jus­tices that Evans had again inten­tion­al­ly exclude black jurors on the basis of race. First, Kavanaugh said, was Evans his­to­ry of dis­crim­i­na­to­ry strikes. ​“The num­bers speak loud­ly,” he wrote. ​“Over the course of the first four tri­als, there were 36 black prospec­tive jurors against whom the State could have exer­cised a peremp­to­ry strike. The State tried to strike all 36.” Second, he said, Evans’ use of his peremp­to­ry chal­lenges in the lat­est tri­al — in which he accept­ed the first qual­i­fied black poten­tial juror and then struck all five oth­er African Americans in the jury pool — fur­ther suggested discrimination.

Justice Kavanaugh said the Court was influ­enced by what he called Evans’ ​“dra­mat­i­cal­ly dis­parate ques­tion­ing of black and white prospec­tive jurors” in the sixth tri­al. ​“The State asked the five black prospec­tive jurors who were struck a total of 145 ques­tions,” Kavanaugh wrote. ​“By con­trast, [Evans] asked the 11 seat­ed white jurors a total of 12 ques­tions.” Evans also did not ask fol­low-up ques­tions to white jurors on sub­ject areas in which he exten­sive­ly ques­tioned black jurors. ​“The dif­fer­ence in the State’s approach­es to black and white prospec­tive jurors was stark,” Kavanaugh said.

Finally, the Court ques­tioned the gen­uine­ness of Evans’ prof­fered expla­na­tion for strik­ing Carolyn Wright, a black juror whose char­ac­ter­is­tics were sim­i­lar to white jurors whom Evans accept­ed and who served on the jury. Justice Kavanaugh con­clud­ed that ​“all of the rel­e­vant facts and cir­cum­stances tak­en togeth­er estab­lish that the tri­al court at Flowers’ sixth tri­al com­mit­ted clear error in con­clud­ing that the State’s peremp­to­ry strike of [a black prospec­tive juror] was not moti­vat­ed in sub­stan­tial part by discriminatory intent.”

Justice Samuel Alito wrote a con­cur­ring opin­ion empha­siz­ing the extra­or­di­nary nature of the case giv­en the his­to­ry of pri­or ​“tri­als … marred by racial dis­crim­i­na­tion in the selec­tion of jurors and pros­e­cu­to­r­i­al mis­con­duct.” Justice Clarence Thomas authored a dis­sent, joined in part by Justice Neil Gorsuch, that chal­lenged the majority’s char­ac­ter­i­za­tion of the record. In a por­tion of the dis­sent not joined by Justice Gorsuch, Justice Thomas crit­i­cized the Court’s past juror-dis­crim­i­na­tion deci­sions and argued that crim­i­nal defen­dants should not be enti­tled to relief when pros­e­cu­tors dis­crim­i­nate against jurors on the basis of race.

The Court’s deci­sion returns Flowers’ case to the Mississippi courts where its future is uncer­tain. An inves­tiga­tive series by the American Public Media pod­cast In the Dark, high­light­ed the ques­tion­able cir­cum­stan­tial evi­dence and the since-recant­ed tes­ti­mo­ny of a jail­house infor­mant that formed the basis for his con­vic­tion. Sherry Lynn Johnson, who argued the case for Flowers in the Supreme Court, released a state­ment prais­ing the deci­sion and assert­ing Flowers’ inno­cence. ​“The quadru­ple homi­cide in this case was a ter­ri­ble crime, but Curtis Flowers did not com­mit it,” Johnson said. ​“That Mr. Flowers has already endured six tri­als and more than two decades on death row is a trav­es­ty. 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.”

Evans told American Public Media after the deci­sion that “[t]here’s no ques­tion about [Flowers’] guilt [and t]here nev­er has been.” As for the Court’s con­clu­sion that he inten­tion­al­ly struck black jurors because of their race, Evans said, ​“If they said that, that is not true.” An APM In the Dark study of jury strikes dur­ing Evans tenure as DA looked at pros­e­cu­tors’ choic­es to accept or strike more than 6,700 jurors called for jury ser­vice in 225 tri­als between 1992 and 2017. The researchers found that Evans’ pros­e­cu­tors exer­cised peremp­to­ry strikes to exclude African Americans from jury ser­vice at near­ly 4½ times the rate at which they struck white jurors.