The Supreme Court confronts a prosecutor who didn’t know how to quit being racist – ThinkProgress

If a man’s life weren’t at stake in Flowers v. Mississippi, the facts of this case would read like a Monty Python sketch.

District Attorney Doug Evans prosecuted Curtis Flowers six times for allegedly murdering four people at a furniture store where Flowers used to be employed (although some of these trials only involved one of the four victims). At the first trial in 1997, Flowers was convicted of one of these murders. The Mississippi Supreme Court threw that conviction out due to prosecutorial misconduct.

In 1999, Evans convinced a second jury to convict Flowers, who is black, of one of the murders, but that conviction was also thrown out because Evans engaged in the exact same kind of prosecutorial misconduct that tainted the first trial. Notably, the jury pool for Flowers’ second trial included five African Americans, and the prosecution attempted to remove all five of these black potential jurors. The trial judge ultimately concluded that one of these jurors was improperly removed, so the trial proceeded with a single African American on the jury.

At Flowers’ third trial in 2004, Evans could exercise 15 “peremptory strikes” — that is, he had the power to remove up to 15 individuals from the jury pool. He used all 15 to remove African Americans. Though Flowers was also convicted by this whitewashed jury, the Mississippi Supreme Court also threw that conviction out, holding that “the State engaged in racially discriminatory practices during the jury selection process and that the trial court committed reversible error in upholding the peremptory strikes” of two of the black potential jurors.

At Flowers’ fourth trial, Evans used 11 peremptory strikes — all of them against African Americans. That case ended in a mistrial, however, after the jury was unable to reach a unanimous verdict. The fifth trial also ended in a mistrial.

Evans’ behavior in the sixth trial is now before the Supreme Court, in a case that will be argued next Wednesday. In that trial, Evans allowed a single black juror to be seated, before striking five more African Americans. A jury of 11 white people and one black person convicted Flowers in this sixth trial, and sentenced him to die.

The issue in Flowers is whether Evans again violated the Constitution by excluding jurors because of their race.

Under the Supreme Court’s decision in Batson v. Kentucky, judges must use a three-step process to determine whether a particular juror was removed because of their race. Once a criminal defendant raises a colorable claim that the juror was struck because of race, the prosecutor must offer a race-neutral explanation for their decision to exclude that potential juror. The judge must then decide whether they believe that reason.

In practice, Batson — with its highly subjective inquiry into a prosecutor’s motives — has not been much of a shield against racial jury discrimination. As Judge Gregg Costa of the United States Court of Appeals for the Fifth Circuit noted in a 2018 dissent, “it appears that only two of the hundreds of Batson decisions in our circuit have ever found” that a prosecutor’s decision to strike a juror “was discriminatory” (“a few others” vacated convictions on procedural grounds).

Prosecutors typically aren’t fools. They can almost always come up with a plausible reason why they wanted to remove a particular individual from the jury.

Flowers is no exception. In its brief defending Evans’ conduct at the sixth trial, the state claims that one of the excluded jurors was sued by the furniture store owned by one of the victims. Another excluded juror, they claim, worked with Flowers’ sister on the same assembly line. A third allegedly had children who were friends with Flowers.

Flowers’ attorneys, for their part, claim that many of the state’s claims about these jurors are erroneous — or even outright fabrications. But the state’s claimed reasons for excluding these jurors, are at least facially legitimate.

Nevertheless, there are still two very good reasons to doubt Evans’ sincerity — even setting aside the factual disputes about individual jurors’ relationships with Flowers.

The first reason is that Evans has a long history of engaging in racist jury selection specifically in trials where Curtis Flowers is the defendant. Twice, Mississippi courts invalidated his use of peremptory strikes. According to Flowers’ attorneys, “across the five trials for which the numbers are available, Evans faced a total of 43 black prospective jurors while he had peremptory strikes at his disposal. He struck 41 of them and allowed only one” — the single black juror who sat on Flowers’ sixth jury.

The second reason is that, while Evans eventually came up with legitimate-sounding reasons to remove black jurors in the sixth trial, he did so after subjecting those potential jurors to unusually rigorous questioning. Flowers’ lawyers claim that Evans asked the five excluded black jurors “a total of 145 questions—an average of 29 each.” Meanwhile, “Evans asked the 11 whites seated on the panel a total of 12 questions, for an average of just under 1.1 questions per juror.”

Moreover, while Evans’ questions did eventually uncover some ties between Flowers and some of the black jurors, the case also took place in a very small community. Montgomery County, Mississippi, where the sixth trial took place, has a population of just over 10,000 people. It’s likely that many of the white potential jurors also had connections to Flowers or to the murder victims, though Evans did not appear interested in going to similar lengths to probe these ties.

Taken as a whole, the facts suggest that Evans wanted to exclude as many black jurors as he could, but that he also wanted to create the impression that he was not violating Batson. So he accepted one black juror, then grilled the other African-Americans in the jury pool until he uncovered a racially neutral explanation for his decision to remove them.

The good news for Flowers is that the Supreme Court is likely to rule in his favor and require the state to retry him yet again if prosecutors want to keep him locked up. The high court rarely takes cases like this one, where the outcome turns on the very peculiar facts of an individual case. When they do take such a case, it’s often a sign that a majority of the justices are outraged by a decision and intend to reverse it.

Chief Justice John Roberts, moreover, appears to have a penchant for criminal cases involving truly ridiculous forms of race discrimination. He wrote his court’s opinion in Foster v. Chatman, for example, which tossed out a man’s conviction after his lawyers discovered that the prosecution team ranked each of the potential black jurors in order of most desirable to least desirable in case “it comes down to having to pick one of the black jurors.” Roberts also wrote the opinion in Buck v. Davis, which invalidated a death sentence because an expert witness testified that black men have an “increased probability” of committing acts of violence in the future.

Roberts’ views on race are both simplistic and extraordinarily naive. He once compared two school districts’ race-conscious efforts to desegregate to the state-mandated segregation that eventually led to Brown v. Board of Education. “The way to stop discrimination on the basis of race,” Roberts wrote, “is to stop discriminating on the basis of race.”

For Roberts, any governmental acknowledgement of race is unforgivable, whether it manifests as an affirmative action program, aggressive regulation of states with a history of racial voter discrimination, or as a racist prosecutor’s decision to exclude black jurors. That viewpoint is a disaster if you care about correcting systematic racial injustices, but it cuts in favor of men like Curtis Flowers.

Ultimately, however, it is not a solution for the Supreme Court to cherry-pick a case like Flowers or Foster or Buck every few years in order to correct a particularly egregious wrong. As Judge Costa’s dissent suggests, there is a systemic problem of judges allowing prosecutors to engage in racial jury discrimination. Batson has not worked.

And so the most important question in the case is not likely to be whether Flowers prevails — he most likely will. The most important question is whether a court led by a man of surpassing racial naiveté is willing to treat racial jury selection as a systemic problem requiring more than just an occasional one-off correction.

Such an outcome is unlikely from a Chief Justice who once concluded that America does not need a fully operational Voting Rights Act because we are no longer racist enough to justify such a law. The Supreme Court will likely continue to strike back against truly eye-popping examples of racism. But they are just as likely to remain blind to more sophisticated racists who discriminate with more subtly than District Attorney Evans.

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