Justice Thomas Speaks Up in Racial Discrimination Jury Selection Argument

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By George Khoury, Esq. on April 01, 2019 3:07 PM

In a rather curious turn of events, during the oral argument in the Flowers v. Mississippi case, Justice Thomas broke his three-year silence on the bench and actually asked questions.

The case asked SCOTUS to review the jury selection of a criminal trial where the defendant was convicted of murder, which, interestingly (and sadly) had been previously found to have been racially discriminatory. Even more surprisingly, Flowers has been tried six times.

Discrimination in Jury Selection

The central issue in the case is whether the prosecutor was motivated by racial animus when he used his preemptory challenges to strike black jurors from Flowers' jury.

Previously, the same prosecutor had been found to have discriminated against black individuals in jury selection. The numbers don't help his case either, as he used preemptory challenges on 41 of the prospective 43 black jurors in all six of Flowers' murder trials. Justice Kagan pointed out that the prosecutor also spent more time questioning potential black jurors than white jurors, commenting that the numbers were "staggering."

So What Did Justice Thomas Say?

Justice Thomas's questions were rather pointed, though lacking in poignancy, as he focused on how the defense used their preemptory challenges, rather than the prosecutor (which is what's at issue). At the oral argument, it was discovered that the defense's preemptory challenges were used to strike white jurors.

Notably, Justice Thomas didn't want to take the case up to begin with, and joined Justice Alito's dissent in 2016 when the case was initially sent back down to the state's high court.

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