Justice Thomas Dissents Over Race-Based Juror Selection in Death Penalty Case

Jury Box in a new court room
By George Khoury, Esq. on June 25, 2019 11:00 AM

The recent Flowers v. Mississippi case is an odd one. The appellant in the case, Curtis Flowers, was charged with a quadruple murder and has been tried six times and convicted four times, with each of those convictions being overturned -- the latest one thanks to the recent SCOTUS opinion.

In short, in this most recent conviction overturning, the High Court found that the state's prosecutor improperly relied on race when using his preemptory challenges to remove black individuals from Flowers's jury. And while the majority opinion lays out a careful analysis as to why this result was necessary, Justice Thomas's dissent (joined only by Justice Gorsuch) blasts the majority's opinion for several affronts to justice.

Flowers's Bed

The details of the underlying murder case don't stack up too well for Flowers. The prosecution has witnesses putting him near the scene of the crime, near the place where he got the gun, allegedly, and even has witnesses claiming he was wearing the same shoes that left a bloody footprint at the scene of the murders (not to mention they found gunshot residue on his hands after his arrest).

Notably though, as the majority opinion details, when he was put on trial, the state's prosecutor seemed to routinely exercise his preemptory strikes on black jurors. In every trial where there was one black juror or less, Flowers was convicted. In the two cases where there was more than one black juror, the jury hung and a mistrial was declared. After each successful appeal and mistrial, the state retried Flowers. In the sixth trial, the (same) prosecutor exercised preemptory challenges to remove black jurors, and those removals were upheld after a Batson hearing, and on appeal to the state's highest court.

However, the majority opinion from the High Court explained that the prosecutor's stated race-neutral reasons for the challenges were merely pretextual, and that the trial court erred in not seeing that. The majority looked at the "math" and found some striking disparities in the way the prosecutor questioned and struck jurors based on race.

A Jury by Any Other Race …

Justice Thomas sees things a bit differently, as we all know, given that he actually spoke up during the oral argument in this case.

In his view, the majority's first major flub involves taking the Flowers case to begin with. However, he also takes issue with the majority's claiming the prosecutor's reasons for striking the black jurors was pretext. Thomas goes into great detail about how each of the jurors the prosecutor removed had it coming either due to their conduct, or to their connection to the defendant. Thomas even goes so far as to compare the individual jurors to show why the prosecutor would want to excuse the black jurors that they did, in comparison to the white jurors that were kept.

To close, Thomas explains that the only saving grace of the majority's opinion is the fact that the state can just try and convict Flowers again.

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