Supreme Court Justices Seem Incredulous At Repeated Racial Bias In Jury Selection

Mar 20, 2019
Originally published on March 20, 2019 7:03 pm

The U.S. Supreme Court signaled strongly on Wednesday that it is likely to rule for a death row inmate in Mississippi who was prosecuted six times for the same crime by a prosecutor with a history of racial bias in jury selection.

The arguments, more passionate and fact-filled than usual, also had a surprise ending when Justice Clarence Thomas posed a question — the first time in three years.

Though his colleagues focused mainly on the prosecutor's exclusion of African-American jurors, Thomas asked whether the defense had struck any white jurors. Yes, three in the sixth trial, said defense lawyer Sheri Johnson. But when it came to black jurors, there were none left to strike.

Curtis Flowers' murder case has gone to trial six times; his conviction was thrown out three times by the Mississippi Supreme Court for prosecutorial misconduct. The U.S. Supreme Court heard arguments in the case Wednesday.
Provided by Mississippi Department of Corrections via AP

For decades, the Supreme Court has wrestled with the question of racial discrimination in jury selection, setting down its most rigorous rules in 1986. But policing the application of those rules in the lower courts has proved problematic.

Wednesday's case involved the conduct of Doug Evans, a district attorney in Winona, Miss., and his pursuit of a conviction against Curtis Flowers, a black man who prior to this case had no criminal record. Months after a quadruple murder in Winona, Flowers was arraigned, tried, convicted and sentenced to death. He has been on death row for 22 years.

During that time, the state Supreme Court three times threw out his murder conviction for prosecutorial misconduct.

The misconduct was not some technicality. It ranged from misleading the jury about evidence that did not exist to striking prospective jurors based on race.

In the fourth and fifth trials, Evans ran out of strikes; at least two black jurors were seated; and the juries deadlocked. But in the sixth trial, with one black juror, the jury convicted, and the Mississippi Supreme Court upheld the conviction, ruling that this time, there had not been any racial discrimination in jury selection.

In arguments on Wednesday, most of the U.S. Supreme Court members did not seem inclined to uphold that conclusion.

Chief Justice John Roberts pressed defense lawyer Sheri Johnson to identify what rule the court should adopt for cases "not as extreme as this"?

The current rule that requires looking at the prosecutor's history is good enough, she said, but, here, the Mississippi Supreme Court didn't do that.

Mississippi Assistant Attorney General Jason Davis admitted that the history of the case was "troubling," but he insisted that aside from that, the jury selection in the sixth trial was done correctly, given that Winona is a small town, population less than 5,000, where everybody knows everybody.

Justice Samuel Alito interrupted to ask, couldn't the attorney general of Mississippi have said, "Enough already, we're going to send one of our own people to try this case, preferably in a different county"?

Yes, replied attorney Davis, but the local prosecutor would have to request that, and Evans didn't do that.

Justice Brett Kavanaugh interjected, "You said, if we take the history out of the case," but "we can't do that." Here, 41 of 42 potential African-American jurors were struck, he observed.

Davis insisted that each of the potential jurors struck in the sixth trial was struck for a good reason. That brought an astonished reaction from Justice Elena Kagan, who noted that one of the struck jurors would seem to be the "perfect prosecution juror," because she strongly favored the death penalty and her brother was a prison guard.

Kavanaugh noted that one of the reasons the court has embraced increasingly tough rules to eliminate racial bias in jury selection is the need for "confidence of the community in the fairness of the criminal justice system."

And, he asked, "against that backdrop of a lot of decades of all-white juries convicting black defendants ... can you say confidently, as you sit here today ... that you have confidence in how all this transpired in this case?"

Alito posed a similar question, asking whether, in light of the history of this case, any court could untangle what happened in the first five trials from how the jury was selected in the sixth trial.

Replied Davis: "Hindsight is 20/20."

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The U.S. Supreme Court sent strong signals today that it is likely to rule in favor of a black man who sits on death row in Mississippi. He was prosecuted six times for the same crime by a district attorney with a history of racial bias in jury selection. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The arguments had a surprise ending when Justice Clarence Thomas, the court's only African-American justice, posed a question for the first time in three years. Though his colleagues focused mainly on the prosecutor's exclusion of African-American jurors over the course of the six trials, Thomas asked whether the defense had struck any white jurors. Yes, three in the sixth trial, said lawyer Sheri Johnson, but when it came to black jurors, there were none left to strike.

For decades, the Supreme Court has wrestled with the question of racial discrimination in jury selection, setting down its most rigorous rules in 1986. But policing the application of those rules in the lower courts has proved difficult.

Today's case involved the conduct of Doug Evans, a district attorney in Winona, Miss., and his pursuit of a conviction against Curtis Flowers, an African-American man who, prior to this case, had no criminal record. Months after a quadruple murder in Winona, he was arrested, tried and sentenced to death. He's been on death row for 22 years.

During that time, the state Supreme Court three times threw out his murder convictions for prosecutorial misconduct that ranged from misleading the jury about evidence that did not exist to striking prospective jurors based on race. In the first three trials, prosecutor Evans struck all 36 prospective African-American jurors. In the fourth and fifth trials, where Evans ran out of his limited number of strikes, more than one African-American juror was seated, and the jury deadlocked. But in the sixth trial, with Evans accepting one black juror, the jury convicted, and the Mississippi Supreme Court upheld the conviction.

On the steps of the U.S. Supreme Court today, defense lawyer Sheri Johnson said the state court decision was wrong.

(SOUNDBITE OF ARCHIVED RECORDING)

SHERI JOHNSON: The only plausible interpretation is that Doug Evans began jury selection in Flowers VI with an unconstitutional end in mind - to seat as few African-American jurors as he could.

TOTENBERG: Inside the Supreme Court chamber, Chief Justice John Roberts pressed Johnson about what rule the court should adopt for cases, quote, "not as extreme as this." The current rule that requires looking at the prosecutor's history is good enough, she said. But here, the Mississippi Supreme Court didn't do that.

Mississippi Assistant Attorney General Jason Davis admitted there was a troubling history of the case, but he said the jury selection in the sixth trial was done correctly. Justice Samuel Alito interrupted, couldn't the attorney general of Mississippi have said, enough already; we're going to send one of our own people to try this case, preferably in a different county? Replied Davis, Evans would've had to request that, and he didn't.

Justice Brett Kavanaugh interjected, you said if we take the history out of the case, but we can't do that. Here, 41 of 42 potential African-American jurors were struck in the trials that reached a verdict. Davis insisted that each of the potential jurors struck in the sixth trial was struck for a good reason. That brought an astonished reaction from Justice Elena Kagan, who noted that one of the struck black jurors strongly favored the death penalty and had a brother who was a prison guard, ergo she was probably a perfect pro-prosecution juror.

Justice Kavanaugh asked, against the backdrop of a lot of decades of all-white juries convicting black defendants, can you say confidently, as you sit here today, that you have confidence in how all this transpired in this case? Justice Alito posed a similar question. Replied Davis, hindsight is 20/20.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.