Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi

Posted on Categories Alumni Contributor, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Public, Race & Law, U.S. Supreme Court

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers.  The most recent appeal marks the sixth time that Mr. Flowers has been tried for charges arising from a quadruple homicide that occurred at the Tardy Furniture Store in Winona, Mississippi.  Mr. Flowers has been incarcerated for over 20 years, as he awaits trial.  Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black.  Douglas Evans, the prosecuting attorney of all six trials, is white.

APM’s investigative podcast titled In the Dark conducted an in-depth analysis of the case.  The podcast explores the nature of the circumstantial evidence that the prosecution relied upon.  It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered.  But, for the purpose of the appeal, sufficiency of evidence is not at issue.  The narrator, Madeleine Baran, explains that “we’ve talked to hundreds of people who live in this part of Mississippi and it’s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.”  And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court.

As set forth in Batson v. Kentucky, race is not an improper basis for striking an otherwise qualified juror.  Pursuant to Batson, if opposing counsel sets forth a prima facie case of discrimination at the trial court level, then a Batson hearing is conducted.  At the hearing, the lawyer may defend his or her use of peremptory strikes by identifying a non-racial reason for the challenge at issue.  It is then up to the trial court to determine whether the challenges were racially motivated.

This past week, the United States Supreme Court was tasked with determining whether the prosecutor, Douglas Evans, impermissibly challenged otherwise qualified black jurors in violation of Batson v. Kentucky.  Of course, this was not the first time Douglas Evans’ has been scrutinized for his use of peremptory challenges.  Over the course of six trials Evans used 41 of 42 peremptory challenges to strike prospective black jurors.  But his use of peremptory challenges is not the only behavior for which Evans has received scrutiny.  During the first trial, Mr. Flowers was convicted of murder by an all-white jury.  Although his attorney raised a Batson challenge in that case, the Mississippi Supreme Court did even not bother to reach the Batson issue and instead focused on prosecutorial misconduct.  Evans was found to have “repeatedly asked improper questions not in good faith in which there was no basis, in fact.”  Flowers v. State, 773 So. 2d 309, 317 (Miss. 2000).  For example, Evans attempted to impeach Flowers by holding up a tape for the jury to view, which contained what he claimed an inconsistent statement made by Flowers to law enforcement.  The only problem was that the jury never heard the contents of the tape, and the contents of the tape were not entered into evidence.

In the second trial, Evans again tried to use his peremptory challenges to eliminate every prospective black juror during voir dire.  The second jury also returned a guilty verdict.  As in the first case, the Mississippi Supreme Court overturned the case because Evans argued facts not in evidence and sought to impeach witness testimony with evidence not entered into the record.

At the third trial, Evans exercised all 15 peremptory challenges against black jurors.  After the State ran out of peremptory strikes, 11 white jurors and one black juror sat on a jury, which again convicted Flowers of murder and sentenced him to death.  On appeal, the Mississippi Supreme Court reversed the conviction finding that Evans had discriminated by exercising all 15 peremptory strikes against black jurors.

During the fourth trial, the jury was comprised of five black jurors and seven white jurors.  The case ended in a mistrial, when the jury could not agree.  The fifth trial also ended in a mistrial.

At the sixth trial, Evans did not use a peremptory challenge against the first prospective black juror.  However, Evans employed peremptory challenges to strike every subsequent black juror.  Furthermore, Evans asked each black juror an average of 45 questions, whereas white jurors were asked an average of 1 question each.  A disparity in questioning can support an inference that Evans was fishing for plausible race neutral pretext to challenge an otherwise qualified black juror.  There was also evidence that similarly situated black jurors were struck, when their white counterparts were not. These facts coupled with the history of repeated misconduct by Evans supported a determination that the trial court committed a clear error in striking at least one black juror, which warranted reversal.

Of course, not all Justices agreed with the majority.  A particularly biting dissent authored by Justice Thomas warrants discussion. His dissent, which was joined by Justice Gorsuch, takes issue with the amount of media attention paid to the case of Curtis Flowers.  According to the dissent, “the media often seeks ‘to titillate rather than educate and inform,’” to the detriment of all parties.  The dissent seeks to highlight the perceived danger that too much media attention may discourage a reluctant witness from testifying, meanwhile encouraging eager witnesses to perform for a jury.  Of course, while critiquing the media for scrutinizing the investigation and prosecution of Curtis Flowers, the dissent itself could not help but wade through the facts that support his conviction, even though those facts are wholly irrelevant the appeal.

Mr. Flowers has now spent almost half his life in jail for a crime for which he has never been convicted. When lawyers are less concerned with the administration of justice than with their own egotistical need to secure a win, the legal system itself is undermined.  Justice Thomas and I will have to disagree on the propriety of media coverage in the case of Curtis Flowers.  If anything is going to change, cases like this cannot remain in the shadows.

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