The State of Mississippi has tried Curtis Flowers for the murder of four people a total of six times. The first three resulted in convictions, each of which was overturned because of prosecutorial misconduct. Flowers is black, and Doug Evans -- the state prosecutor in every case -- seemingly did everything possible to keep black people off the juries involved. The fourth and fifth trials, which included more black jurors, resulted in hung juries.
And now the sixth, wherein he was convicted by a jury that included just one black person, has been overturned by the Supreme Court. Again, the Court ruled that Evans's jury selection was motivated by discriminatory intent, and it vacated Flowers's latest conviction.
A Pattern of Peremptory Challenges
Criminal jury selection can be a complex process. Prosecutors and defense counsel may "strike" (or remove from the jury pool) prospective jurors for stated reasons like knowledge of the parties or a conflict of interest. Each side is also granted several peremptory challenges that allow them to strike jurors without needing to provide a reason. In 1986, the Supreme Court ruled that prosecutors could not exclude jurors based on their race, and it allowed defendants to challenge peremptory challenges and force prosecutors to "come forward with a neutral explanation for challenging black jurors."
In Flowers's case, the Supreme Court looked at the totality of Evans's conduct during jury selection. The numbers, as described in the opinion, are staggering:
First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck ... Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. [Prosecutors asked 145 questions of 5 black prospective jurors and 12 questions asked of 11 white seated jurors.] Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.
"A court confronting that kind of pattern cannot ignore it," Justice Brett Kavanaugh noted in the 7-2 opinion. "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."
A Defendant Deferred
Flowers had no prior criminal record before these charges, but he once worked at the store where the murders occurred. He has now been on death row for 22 years, and it's up to the State of Mississippi to decide whether they will try him a seventh time.