Kavanaugh said District Attorney Doug Evans used his allotted challenges to strike 41 of 42 black prospective jurors.
“The state’s relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury,” Kavanaugh wrote, adding: “We cannot ignore that history.”
Justices Clarence Thomas and Neil M. Gorsuch dissented. Thomas went so far as to call for the court to junk its 1986 decision in Batson v. Kentucky, which says potential jurors cannot be excluded because of their race, and lawyers must provide a nondiscriminatory explanation for striking them.
Thomas, who broke three years of silence on the bench to ask during oral arguments about Flowers’s lawyers striking white potential jurors, said the court’s decision was “manifestly incorrect.”
“Today’s decision distorts the record of this case, eviscerates our standard of review, and vacates four murder convictions because the state struck a juror who would have been stricken by any competent attorney,” he wrote.
He added: “If the Court’s opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again.”
Sheri Lynn Johnson, who argued the case on Flowers’s behalf at the Supreme Court, said that would be wrong.
“That Mr. Flowers has already endured six trials and more than two decades on death row is a travesty,” she 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 that has kept him wrongfully incarcerated all these years.
“We hope that the State of Mississippi will finally disavow Doug Evans’s misconduct, decline to pursue yet another trial, and set Mr. Flowers free.”
Evans declined to comment, and his office said a decision on whether to try Flowers a seventh time would not be announced immediately. Reporters for a podcast that has extensively covered the case — American Public Media’s “In the Dark” — found Evans at lunch after the Supreme Court’s decision was announced.
“There’s no question about [Flowers’s] guilt. There never has been,” he said, according to the report. “Courts are just like me and you. Everybody’s got opinions.”
Asked about the Supreme Court’s finding that he set out to exclude African Americans from the jury, Evans said, “If they said that, that is not true.”
At oral arguments, Justice Samuel A. Alito Jr. asked Mississippi Special Assistant Attorney General Jason Davis why his office had not taken over the prosecution after so many reversals and hung juries. Davis said that under state law, the attorney general’s office may intervene only when invited by the district attorney.
“So that was not an option in this case,” Davis said. “We were not so requested.”
A pursuit without parallel
Evans, a longtime prosecutor, has attempted to convict Flowers in a prosecutorial pursuit that may be without parallel. Flowers was charged with executing four people inside Tardy Furniture Store in the small town of Winona, Miss., in 1996.
Two trials, the only ones with more than one African American on the panel, resulted in hung juries. Three convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct and improper maneuvering by Evans to keep African Americans off the jury.
But the state supreme court said Evans had offered race-neutral reasons in the most recent trial, in 2010, when the prosecutor struck five of six black potential jurors. Flowers was convicted of murdering Bertha Tardy, 59, and store employees Carmen Rigby, 45, Robert Golden, 42, and 16-year-old Derrick “Bo Bo” Stewart, and sentenced to death.
The Supreme Court was not considering the evidence against Flowers, but instead examining Evans’s prosecutorial tactics.
When picking a jury, some potential panel members are eliminated by the judge and lawyers for cause — that they have a conflict of interest, for instance, or because they say in a capital case that they could not impose the death penalty.
Prosecutors and defense attorneys also receive what are known as peremptory challenges. They can strike potential jurors they simply don’t want on the jury, and generally those choices cannot be second-guessed.
But in Batson, the Supreme Court said the challenges could not be used to strike a potential juror because of his or her race. (Gender was later added as a forbidden purpose.)
In a more recent decision, the court said judges should consider the “totality of the circumstances” when deciding whether a prosecutor was using the challenges as a pretext for barring jurors because of their race.
Flowers’s lawyers said that means looking at Evans’s work in previous trials, not just the most recent one.
The court majority agreed.
Kavanaugh, who as a Yale law student wrote about enforcement of Batson, said “four critical facts” required reversal of Flowers’s latest conviction.
One was Evans’s history of striking potential jurors who were black. Second was the state using peremptory strikes against five of six African Americans in the most recent trial. Third was the state’s “dramatically disparate questioning” of black and white potential jurors. And the fourth was striking at least one black prospective juror, Carolyn Wright, who was similarly situated to white jurors who were accepted.
“In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many,” Kavanaugh wrote, adding, “We cannot just look away.”
Alito, one of the court’s toughest on criminal defendants, wrote separately to say that in an ordinary case, he would not have found Evans’s reasoning for eliminating potential jurors suspect.
“But this is not an ordinary case, and the jury selection process cannot be analyzed as if it were.”
Thomas criticized his colleagues for accepting the case, speculating that they were motivated by either a “scorn” of courts in Southern states, or the media attention the Flowers case received. The podcast featured a recantation of a jailhouse informant who had testified that Flowers confessed to him.
That was not considered by the Supreme Court but is part of a separate appeal in state court. “The media often seeks ‘to titillate rather than to educate and inform,’ ” Thomas wrote, quoting a phrase from a 1981 Supreme Court opinion.
He devoted a part of his dissent — which Gorsuch did not join — to criticism of Batson.
“Much of the court’s opinion is a paean to Batson v. Kentucky, which requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury,” wrote Thomas, for more than 25 years the court’s only African American. “That rule was suspect when it was announced, and I am even less confident of it today.”
Thomas contended that requiring race-neutral reasons for excluding jurors ignores the reality that “race matters in the courtroom.” It forbids, he said “black defendants from striking potentially hostile white jurors.”
Kavanaugh said 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.” He added, “both history and math tell us that a system of race-based peremptories does not treat black defendants and black prospective jurors equally with prosecutors and white prospective jurors.”
Thomas was not convinced. In a tart conclusion, he wrote: “Although the court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families.”
The case is Flowers v. Mississippi.