WASHINGTON (CN) — With a 7-2 vote Friday, the Supreme Court vacated a death-penalty conviction in a case where a Mississippi prosecutor had a track record of eliminating black jurors.
The odd formulation, where Justice Brett Kavanaugh was joined by both liberal justices and fellow conservatives in the lead opinion, found “clear error” in how the state tried Curtis Flowers for murder in 2010.
“Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process,” Kavanaugh wrote.
But Justice Clarence Thomas — who broke a three-year streak of silence at oral arguments for Flowers’ case — labeled the majority opinion as “manifestly incorrect.” Justice Neil Gorsuch joined the dissent.
Lawyers are allocated a certain number of peremptory strikes to remove jurors from the potential jury pool without giving reason, but race cannot be a factor for such removal under the 1986 Supreme Court case Batson v. Kentucky.
Mississippi has tried Flowers six times over the past two decades for the 1996 murders of four people in a furniture store, and over the years prosecutor Doug Evans has unseated 41 of 43 potential black jurors in the case.
In 2010, which had been Flowers’ latest trial, Evans removed five of six black jurors.
The majority found these strikes “impermissible” Friday under the equal-protection clause.
“Moreover, in criminal cases involving black defendants, the both-sides-can-do-it argument overlooks the percentage of the United States population that is black (about 12 percent) and the cold reality of jury selection in most jurisdictions,” Kavanaugh wrote.
Winona, Mississippi, where the murders occurred, is a small town of 5,000, the population of which is 53 percent black and 46 percent white.
Mississippi Special Assistant Attorney General Jason Davis argued the size of the town influenced the frequency of strikes along with the responses provided in the jury-selection process. He also said strikes in the past five trials are not relevant.
But Flowers’ attorney, Cornell Law professor Sheri Lynn Johnson, told the court Evans had asked black jurors 29 questions, while on average asking white jurors just more than one.
The high court found stark contrast between time spent questioning black jurors versus white, concluding the state applied higher scrutiny in interrogating black jurors.
“The lopsidedness of the prosecutor’s questioning and inquiry can itself be evidence of the prosecutor’s objective as much as it is of the actual qualifications of the black and white prospective jurors who are struck or seated,” Kavanaugh wrote.
In one example, Evans struck a black juror that worked with Flowers’ father but did not strike a white juror who knew several of Flowers’ family members.
But Thomas found fault with the evidence presented by the majority, and in his dissent dug into numerous would-be jurors’ ability to judge impartially.
“In terms of race-neutral validity, these five strikes are not remotely close calls. Each strike was supported by multiple race-neutral reasons articulated by the State,” Thomas wrote.
Alito joined the lead opinion and also wrote a separate concurrence where he said he might otherwise side with the state, “were it not for the unique combinations of circumstances present here.”
“But this is not an ordinary case, and the jury selection process cannot be analyzed as if it were,” Alito wrote. “In light of all that had gone before, it was risky for the case to be tried once again by the same prosecutor in Montgomery County. … Viewing the totality of the circumstances present here, I agree with the court that petitioner’s capital conviction cannot stand.”
Mississippi Attorney General Jim Hood made a brief statement Friday afternoon, giving no insight as to whether the state will tap Evans to prosecute Flowers a seventh time.
“The court has remanded the case for retrial,” Hood said. “It will be the duty of the district attorney to re-evaluate the case. If the decision is to retry the case, I am confident the court’s guidance will be followed.”
But Flowers’ attorneys said Friday that other holes in the case should compel Mississippi to release their client.
“The quadruple homicide in this case was a terrible crime, but Curtis Flowers did not commit it,” Johnson and co-counsel Mark Flanagan said in a statement. “A seventh trial would be unprecedented, and completely unwarranted given both the flimsiness of the evidence against him and the long trail of misconduct.”
Flowers has already spent 20 years on death row despite the state’s use of “grossly unreliable” forensic evidence, jailhouse informants who later admitted to lying, and “brazen misrepresentation” of facts, the lawyers added.