On Wednesday, the Supreme Court heard oral arguments in the Curtis Flowers case. If you’re a fan of the podcast “In the Dark,” you know that this is one of the nuttier cases the U.S. criminal justice system has ever produced. Flowers has been tried six times for a 1996 triple murder in the small Mississippi town of Winona. He was convicted at his first trial, but his conviction was thrown out because of misconduct by district attorney Doug Evans. Two trials ended in mistrials due to a hung jury. Two others also ended in convictions, both of which were also later overturned due to prosecutor misconduct, one due to Evans’s racial bias during jury selection. Flowers’s sixth trial came in 2010. He was convicted. He was again sentenced to death. He is almost certainly the only person ever tried six times for the same crime.

There are a lot of problems with Flowers’s conviction, and I’d urge you to listen to the “In the Dark” podcast, which dives into all of them. I’ve done a lot of reporting in Mississippi, and I’ve covered a lot of shenanigans by police and prosecutors there. Flowers’s case is one of the worst. But Wednesday, the Supreme Court heard arguments about just one aspect of the case — whether District Attorney Doug Evans was again motivated by race when he selected the jurors for Flowers’s most recent trial. This is known as a Batson claim, named for the 1986 case in which the Supreme Court ruled that prosecutors cannot strike potential jurors solely because of race.

It’s hard to look at Evans’s record at jury picking in Flowers’s trials and come up with an explanation that doesn’t involve race. In the first trial, the jury pool included five black people. Evans struck all five. In the second trial, the pool again included five black people, and Evans again struck all five. In the third trial, there were 17 black candidates. Evans struck 15 of them. That may seem like progress, except that Evans only had 15 peremptory strikes. In the fourth trial, there were 16 black candidates. Evans had 11 strikes. He used all of them on black people. In the most recent trial, Evans had the opportunity to seat six black jurors. He struck five of them.

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The producers of “In the Dark” were curious if Evans had done this in other cases, so they went back and looked at the his office’s history. They obtained data on more than 6,700 jurors in 225 trials over a 26-year period. They found more evidence of discrimination. Evans and his subordinates were more than four times more likely to strike black jurors than white jurors. His office struck 50 percent of eligible black jurors, versus just 11 percent of eligible white jurors. Even after adjusting for other, race-neutral factors during juror questioning, black jurors were far more likely to be struck by Evans’s office.

I’ll get back to the Flowers case in a moment, but I want to explore why we should want racially diverse juries in the first place. The most obvious reason is that we want an inclusive justice system. A system in which all-white or mostly white juries disproportionately send black people to prison loses legitimacy in the eyes of marginalized communities (and, one would hope, a good portion of white people). Those communities need to be a part of the process.

Prosecutors will argue that black people tend to be more skeptical of police, prosecutors and the criminal justice system in general. When they express that skepticism during questioning, prosecutors — who want to win — will naturally strike them from the jury pool, not because they’re black, but because they’re skeptical. But that skepticism is based on real-world experience, and there’s mounds of evidence to back it up. We’re supposed to be judged by a jury of our peers precisely because the system’s flaws should be factor into every jury’s deliberations and verdict. If you remove everyone from the jury pool who represents a class of people most likely to be on the receiving end of those flaws, you create juries that are artificially and disproportionately unskeptical.

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This is especially true in death-sentence cases, where the courts have allowed what’s called a “death-qualified” jury. Basically, any juror who says he or she could not impose a death sentence is removed from the jury pool. But while it’s true that some people oppose the death penalty for strictly moral or philosophical reasons, some oppose it because they believe the system is biased, flawed or broken. Taking those people out of consideration means you’re starting with a jury pool that is less skeptical of the system than the general population. From there, the prosecution and defense then get to make their strikes.

But there are other reasons it’s important to have jurors who look like the people on trial. A couple of years ago, my wife, Liliana Segura — an investigative journalist with the Intercept — wrote about the case of Angela Garcia, a black/Latino woman who was convicted of intentionally burning down her Cleveland home, killing her two daughters. The evidence against Garcia was spare — mostly arson “science” that has since been widely discredited. The state also argued Garcia was a cold mother willing to sacrifice her children for insurance money. Prosecutors pointed to the fact that she had at one point asked a relative to care for her daughters so she could join the Navy. She had also exaggerated her possessions on insurance forms. Garcia’s first trial ended with a hung jury, with black jurors voting to acquit and white jurors voting to convict. But it’s why black jurors balked that’s interesting — and poignant. From Segura’s 2017 article:

Over five days of contentious deliberation, jurors became deadlocked, yelling at one another loudly enough to be heard outside their room. According to the Plain Dealer, the conflict arose after one black juror, a middle-aged resident of Cleveland’s east side, saw a photo of Nyeemah and Nijah and “immediately noted the dozens of red and blue beads carefully woven into the toddlers’ dark, curly hair.” The juror knew such a hairstyle took a lot of time and patience — to her, it was evidence that Garcia loved and cared for her kids.
The juror held firm, refusing to convict. Others eventually joined her. Black jurors later described to the Plain Dealer how differently they saw the case from their white peers. For example, Garcia’s attempt to give Judy custody of her daughters so she could join the Navy was viewed as admirable sacrifice — an investment in her family’s future — rather than a way to get rid of them. One woman said white jurors had not even heard of security doors, a fixture in low-income neighborhoods but foreign to the suburbs. “How do you explain your whole life to someone like that?” Finally, black jurors were more skeptical of government witnesses, including firefighters, who had “a reputation for racism.”
The trial ended in a hung jury. “It was almost like we were coming from different planets,” a white juror said.

One could argue that the black jurors’ own experiences with police and prosecutors made them unnecessarily skeptical in this case. But you could just as easily argue that their experiences make them better informed and better equipped to judge. One could argue that someone like Garcia should only be judged by her “peers” — people who look like her and with life experiences similar to hers. One could also argue that someone like Garcia should be judged by a diverse group of jurors — including people who look like her and with life experience similar to hers, but mixed with jurors who come from different backgrounds and who may be less skeptical of state actors. It seems to me that the least persuasive argument — and the scenario least likely to produce an informed verdict — is that someone like Garcia should be judged only by people who don’t look like her, who have little in common with her, who come from groups with a dramatically different relationship with law enforcement and the justice system, and who would be completely unaware, for example, of the time and care it takes to braid and bead a young black girl’s hair.

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Yet that third, least-encouraging scenario tends to predominate the justice system. I summarized some of the research on this issue in a piece last year:

• A study of criminal cases from 1983 and 1993 found that prosecutors in Philadelphia removed 52 percent of potential black jurors vs. only 23 percent of nonblack jurors.
• Between 2003 and 2012, prosecutors in Caddo Parish, La. — one of the most aggressive death penalty counties in the country — struck 46 percent of prospective black jurors with preemptory challenges, vs. 15 percent of nonblacks.
• Between 1994 and 2002, Jefferson Parish prosecutors struck 55 percent of blacks, but just 16 percent of whites. Although blacks make up 23 percent of the population, 80 percent of criminal trials had no more than two black jurors in a state where it takes only 10 of 12 juror votes to convict.
• A 2011 study from Michigan State University College of Law found that between 1990 and 2010, state prosecutors struck about 53 percent of black people eligible for juries in criminal cases, vs. about 26 percent of white people. The study’s authors concluded that the chance of this occurring in a race-neutral process was less than 1 in 10 trillion. Even after adjusting for excuses given by prosecutors that tend to correlate with race, the 2-to-1 discrepancy remained. The state legislature had previously passed a law stating that death penalty defendants who could demonstrate racial bias in jury selection could have their sentences changed to life without parole. The legislature later repealed that law.

Despite those figures, and figures like Doug Evans’s history, the courts have generally been reluctant to second-guess the motives of prosecutors, even when they so at rates like those above. In the 32 years after the Supreme Court’s Batson decision, the U.S. Court of Appeals for the 5th Circuit — which includes Mississippi, Louisiana and Texas — received hundreds of challenges alleging racial bias in jury selection. As of last year, it had upheld such a challenge just twice. A 2010 report by the Equal Justice Initiative found cases in which courts upheld prosecutors’ dismissal of black jurors because of supposedly race-neutral factors such as affiliation with a historically black college, a relative in an interracial marriage, living in a black-majority neighborhood or a prosecutor’s claim that a juror “shucked and jived.”

Getting back to Flowers, at Wednesday’s oral arguments, nearly all the justices seemed to agree that the racial math in this case is a problem. With the exception of Justice Clarence Thomas (more on him in a minute), the court’s more conservative justices, lead by Justice Samuel A. Alito Jr., seemed to agree that Evans’s career record is pretty abysmal. Yet Alito seemed to want to limit the court to only considering the evidence of racial bias in the most recent trial. The problem with that is that as noted above, a prosecutor can always come up with supposedly race-neutral reasons for striking a given black juror — and the courts have historically been deferential when evaluating those justifications. The smaller the sample size, the easier it is to explain away discrepant numbers. It’s only when you start looking at larger sample sizes that the pattern becomes more pronounced, and then overwhelming, and the excuses get less and less plausible. Without the historical context of Evans’s broader career, the court can’t engage in a fully informed evaluation of his actions at Flowers’s most recent trial.

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There are two other moments from Wednesday’s arguments that are worth noting. The first is a comment from Alito to Jason Davis, the lawyer from the Mississippi Attorney General’s Office. Alito asked, “Could the attorney general have said, you know, enough already, we’re going to send one of our own people to try this case, preferably in a different county, where so many people don’t know so many other people? Could he have done that?” Davis says this would not have been an option. My sources say that he is incorrect. If he wanted to, Mississippi Attorney General Jim Hood could have removed Evans from the case. At the very least, Hood — a Democrat who has repeatedly won statewide office in a very red part of the country, and who is running for governor — could have filed a complaint against Evans for his discriminatory actions (or for a number of other acts of alleged misconduct documented by “In the Dark”). Hood also could have directed his office not to defend Flowers’s conviction. But as has been the case with him in the past, Hood instead chose to defend a conviction that many consider unjust.

The other noteworthy moment Wednesday came when Thomas asked a question. This apparently was the first time in three years that the famously quiet justice made himself heard in oral arguments. It wasn’t a shining moment. In an apparent attempt at “whataboutism,” Thomas asked Flowers’s attorney if his trial attorneys made any peremptory challenges of their own. She replied that they had. Thomas then asked about the race of the jurors struck by Flowers’s attorneys. It turned out that they were all white.

But Thomas’ “gotcha'” moment backfired when Justice Sonia Sotomayor jumped in to point out something that one would think a Supreme Court justice hearing an important case would have taken the time to learn: While in most states the defense and prosecution alternate in making their peremptory strikes, in Mississippi the prosecution uses all of its strikes first. The defense can then use its own strikes against the remainder of the jury pool. By the time Evans was finished with the jury pool for Flowers’s sixth trial, there was only one black juror left. Flowers’s attorneys liked that juror. Other than her, they couldn’t have struck another black juror even if they wanted to; Evans had already eliminated all of them.

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From the questioning, my guess is that the court will give Curtis Flowers a new trial but with a narrowly tailored ruling that will have virtually no application beyond his case. If there’s any disagreement, it will be over whether the court can come up with a rule that extends beyond this case, with the more liberal justices more likely to argue for such a rule and the more conservative justices lining up against. Even Flowers’s supporters have privately told me that such a rule would be difficult to articulate, much less enforce. That leaves us in a quandary. Some have suggested eliminating peremptory strikes for prosecutors. That approach makes some sense but is probably a political non-starter. We could work to elect prosecutors who promise more representative juries, but it’s hard to blame prosecutors who truly believe in a defendant’s guilt for wanting a jury that’s more likely to convict.

In the end, we’re left with knowing that (a) racially diverse juries are likely more representative, informed and fair; (b) there is ample evidence that juries today are not sufficiently diverse; and (c) there is no satisfying way to get from (b) to (a).

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