High Court Case on Jury-Selection Bias Draws Out Thomas

WASHINGTON (CN) – The Supreme Court appeared ready Wednesday to vacate a death-penalty conviction in a case where the prosecutor had a history of racially motivated juror strikes. 

“Can you say, as you sit here today, confidently you have confidence in how this all transpired in this case?” Justice Brett Kavanaugh asked a Mississippi attorney who was defending the conviction this morning.

Curtis Flowers, pictured here in a 2017 booking photo, has been tried for murder six times in Mississippi. The Supreme Court on Wednesday heard the death-row inmate’s challenge to jury strikes he claims were racially motivated. (Mississippi Department of Corrections via AP)

As the justices probed how prosecutor Doug Evans struck potential jurors in the last of six murder trials for Curtis Flowers, the tangled case history prompted a rare question from Justice Clarence Thomas.

“Were any peremptories exercised by the defendant?” Thomas asked,

breaking a three-year streak of silence at oral arguments.

In connection with the 1996 killing of four people at a store in Mississippi,

Flowers has been convicted of murder four times. Two of those convictions were overturned after the Mississippi Supreme Court found Evans struck prospective jurors on the basis of race, while a third was overturned due to evidentiary issues.

Attorneys in criminal cases have a set number of strikes, known as peremptory challenges, they may use to remove potential jurors from a case without having to explain why. But in Batson v. Kentucky, the Supreme Court held that attorneys cannot strike potential jurors due to their race.

The court further outlined a three-part test to evaluate racially motivated strikes, holding that the party that did the striking must demonstrate when challenged that there was a nondiscriminatory reason for doing so.

Over the course of the two-decade prosecution of Flowers, Evans removed 41 of 43 potential black jurors from the pool and used all 36 of his challenges in the first four trials on black jurors.

Flowers’ attorneys again raised objections to Evans’ handling of potential jurors during the sixth trial, which ended with Flowers being convicted and sentenced to death. Flowers argued the trial court should have considered the fact that Evans had been twice found to be in violation of Batson when evaluating the new claims of improper jury strikes, but the Mississippi Supreme Court disagreed and sustained the conviction.

Flowers’ attorney Sheri Lynn Johnson told the U.S. Supreme Court on Wednesday that judges should not turn a blind eye to a history of racial jury strikes when deciding new claims.

“The only plausible interpretation of all of the evidence viewed cumulatively is that Doug Evans began jury selection in Flowers VI with an unconstitutional end in mind, to seat as few African-American jurors as he could,” said Johnson, a professor at Cornell Law School.

She noted that beyond the sheer number of black jurors struck in the case, Evans was also more inquisitive about black jurors, asking them an average of 29 questions and white jurors an average of just more than one.

Evans struck one potential black juror because she worked with Flowers’ father, while keeping on a white juror who worked at a bank and knew several of Flowers’ family members who frequented her branch, Johnson noted.

“There is no one who has a record of discrimination – adjudicated discrimination – like that of Mr. Evans,” Johnson said.

Mississippi Special Assistant Attorney General Jason Davis agreed this morning that the record in the case is “troubling,” but insisted that Evans had innocent reasons for not wanting to seat the jurors he chose to strike in the sixth trial.

The size of the town, which numbers around 5,000 people, was one factor, and Davis said each strike was a direct response to something the potential jurors said during the jury-selection process. 

“The questions that the district attorney asked were to follow up on what was on the juror questionnaire with regard to their statements therein regarding the death penalty,” Davis said. “In this case the record itself shows that the district attorney offered valid race-neutral reasons for each strike.”

Many of the justices’ questions focused on specific jurors, as they tried to figure out if there was a race-neutral reason for striking each. Justice Elena Kagan said some of the questions Evans asked during the selection process made it seem like he was willing to excuse perceived flaws in white jurors that he could not overlook for black jurors.

“In every case, this kind of disparate questioning, you know, it looks as though he’s trying to create a record for striking black jurors and for distinguishing black jurors from white jurors by means of his questioning, which is sort of, you know, completely opposite from the questioning that he gives to whites,” Kagan said.

Chief Justice John Roberts tried to steer the arguments toward the longer-term impacts of the case, rather than the specific question of what should happen to Flowers, wondering how far into a prosecutor’s history a court should dig.

“If the prosecutor had one Batson violation in his 30-year career, 20 years ago, is that something that should be brought out and pertinent in the assessment of the current Batson challenges?” Roberts asked.

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