{"id":28516,"date":"2019-06-29T10:50:11","date_gmt":"2019-06-29T15:50:11","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=28516"},"modified":"2019-06-29T10:50:11","modified_gmt":"2019-06-29T15:50:11","slug":"out-of-the-shadows-peremptory-juror-strikes-at-issue-in-flowers-v-mississippi","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2019\/06\/out-of-the-shadows-peremptory-juror-strikes-at-issue-in-flowers-v-mississippi\/","title":{"rendered":"Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi"},"content":{"rendered":"

\"The<\/a>On June 20, 2019, the United States Supreme Court reversed<\/a> the conviction of Curtis Flowers.\u00a0 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.\u00a0 Mr. Flowers has been incarcerated for over 20 years, as he awaits trial.\u00a0 Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black.\u00a0 Douglas Evans, the prosecuting attorney of all six trials, is white.<\/p>\n

APM\u2019s investigative podcast titled In the Dark<\/em> conducted an in-depth analysis of the case.\u00a0 The podcast explores the nature of the circumstantial evidence that the prosecution relied upon.\u00a0 It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered.\u00a0 But, for the purpose of the appeal, sufficiency of evidence is not at issue.\u00a0 The narrator, Madeleine Baran, explains that \u201cwe\u2019ve talked to hundreds of people who live in this part of Mississippi and it\u2019s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.\u201d\u00a0 And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court. <\/p>\n

As set forth in Batson v. Kentucky<\/em><\/a>, race is not an improper basis for striking an otherwise qualified juror.\u00a0 Pursuant to Batson<\/em>, if opposing counsel sets forth a prima facie case of discrimination at the trial court level, then a Batson<\/em> hearing is conducted.\u00a0 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.\u00a0 It is then up to the trial court to determine whether the challenges were racially motivated.<\/p>\n

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<\/em>.\u00a0 Of course, this was not the first time Douglas Evans\u2019 has been scrutinized for his use of peremptory challenges.\u00a0 Over the course of six trials Evans used 41 of 42 peremptory challenges to strike prospective black jurors.\u00a0 But his use of peremptory challenges is not the only behavior for which Evans has received scrutiny.\u00a0 During the first trial, Mr. Flowers was convicted of murder by an all-white jury.\u00a0 Although his attorney raised a Batson<\/em> challenge in that case, the Mississippi Supreme Court did even not bother to reach the Batson issue and instead focused on prosecutorial misconduct.\u00a0 Evans was found to have \u201crepeatedly asked improper questions not in good faith in which there was no basis, in fact.\u201d\u00a0 Flowers v. State, 773 So. 2d 309, 317 (Miss. 2000)<\/em><\/a>.\u00a0 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.\u00a0 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.<\/p>\n

In the second trial, Evans again tried to use his peremptory challenges to eliminate every prospective black juror during voir dire<\/em>. \u00a0The second jury also returned a guilty verdict.\u00a0 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.<\/p>\n

At the third trial, Evans exercised all 15 peremptory challenges against black jurors.\u00a0 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.\u00a0 On appeal, the Mississippi Supreme Court reversed the conviction finding that Evans had discriminated by exercising all 15 peremptory strikes against black jurors.<\/p>\n

During the fourth trial, the jury was comprised of five black jurors and seven white jurors.\u00a0 The case ended in a mistrial, when the jury could not agree.\u00a0 The fifth trial also ended in a mistrial.<\/p>\n

At the sixth trial, Evans did not use a peremptory challenge against the first prospective black juror.\u00a0 However, Evans employed peremptory challenges to strike every subsequent black juror.\u00a0 Furthermore, Evans asked each black juror an average of 45 questions, whereas white jurors were asked an average of 1 question each.\u00a0 A disparity in questioning can support an inference that Evans was fishing for plausible race neutral pretext to challenge an otherwise qualified black juror.\u00a0 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.<\/p>\n

Of course, not all Justices agreed with the majority.\u00a0 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.\u00a0 According to the dissent, \u201cthe media often seeks \u2018to titillate rather than educate and inform,\u2019\u201d to the detriment of all parties.\u00a0 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.\u00a0 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.<\/p>\n

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.\u00a0 Justice Thomas and I will have to disagree on the propriety of media coverage in the case of Curtis Flowers.\u00a0 If anything is going to change, cases like this cannot remain in the shadows.<\/p>\n","protected":false},"excerpt":{"rendered":"

On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers.\u00a0 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.\u00a0 Mr. Flowers has been incarcerated for over 20 years, 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