Thread by @helenprejean

Yesterday, the U.S. Supreme Court decided Flowers v. Mississippi – an important case about racism in jury selection. Thread:

The vote in the case was 7-2. Chief Justice Roberts along with Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Kavanaugh were in the majority. They voted to reverse Curtis Flowers’ conviction and death sentence. Justices Thomas and Gorsuch were the two dissenters.

Each side in a criminal case can use what are called peremptory strikes to remove jurors for just about any reason or no reason at all. In 1986, the Supreme Court ruled in Batson v. Kentucky that prosecutors cannot use their strikes to exclude jurors on the basis of their race.

Justice Kavanaugh’s majority opinion laid out some important background information about the case. In 1996, four people were killed at a furniture store in Winona, Mississippi. Three of the victims were white and one was black.

In 1997, Curtis Flowers was charged with the killings. Curtis is black. Since then, Curtis has been tried six different times. Each trial ended in a mistrial or reversal on appeal. The same prosecutor was lead counsel for the state at each trial. The prosecutor is white.

It’s important to note that Winona is about 53% black and about 46% white. At the first trial, there were 36 prospective jurors – 5 black and 31 white. The prosecutor used his peremptory strikes to remove all 5 black prospective jurors.

Curtis was tried, convicted, and sentenced to death in front of an all-white jury the first time around. On appeal, the conviction was reversed because the prosecutors committed “numerous instances of prosecutorial misconduct” at trial.

At the second trial, there were 30 prospective jurors – 5 black and 25 white. The prosecutor again struck all 5 black prospective jurors, but this time the trial court ruled that the prosecutor was discriminating and sat one black juror on the jury.

Curtis Flowers was convicted and sentenced to death again at the second trial. The Mississippi Supreme Court again reversed the conviction and death sentence due to more prosecutorial misconduct.

At the third trial, there were 45 prospective jurors – 17 black and 28 white. One of the black prospective jurors was removed for cause, leaving 16. The prosecutor used a total of 15 strikes, all of them against black prospective jurors.

The Mississippi Supreme Court again reversed the conviction and death sentence, this time ruling that the prosecutor discriminated on the basis of race by using all of his strikes to remove black prospective jurors.

At the fourth trial, there were 36 prospective jurors – 16 black and 20 white. The prosecutor used a total of 11 peremptory strikes. Guess how many strikes were used against black prospective jurors? All 11. The state ran out of strikes and 5 black jurors were seated.

The jury deadlocked at the fourth trial and it was declared a mistrial. There isn’t any data about the racial makeup of the jury pool at the fifth trial, but that trial also ended in a mistrial after the jury couldn’t agree.

That brings us to the sixth trial. There were 26 prospective jurors – 6 black and 20 white. The prosecutor used 6 strikes and 5 of them were used to exclude black prospective jurors. The jury wound up being made up of 11 white jurors and 1 black juror. Curtis was convicted again.

With that background in mind, let’s get into the meat of the decision. The opinion begins by noting that “other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.” Jury service is important!

Both sides are allowed to use their peremptory strikes to remove prospective jurors for any reason during the jury selection process in a criminal case. That blanket discretion can create problems when it clashes with the Equal Protection Clause.

The Equal Protection Clause is part of the 14th Amendment to the U.S. Constitution. It was adopted right after the Civil War. One of the goals behind the Amendment was to protect people from racial oppression.

In 1875, Congress passed a law that banned race-based qualifications for jury service. In 1880, the Supreme Court ruled that states cannot pass laws that allow only white people to serve as jurors. The Court said that these laws were a violation of the 14th Amendment.

There were still many problems with racism in jury selection. As various discriminatory tools were outlawed, prosecutors began using their peremptory strikes to exclude black people from juries.

In 1965, the Supreme Court decided Swain v. Alabama. In that case, the Court held that prosecutors could exclude jurors based on their race. It only became an unconstitutional practice when there was a pattern of racially biased strikes in “case after case.”

Swain was overruled by the Batson case in 1986. Under Batson, prosecutors must give a race-neutral reason for their strikes. The requirement to show a pattern over multiple cases was abandoned. Justice White, who wrote the Swain opinion, joined the majority in Batson.

Unfortunately, Batson has proved to be a pretty toothless legal rule. Prosecutors frequently offer transparently pretextual reasons for excluding minority jurors and trial courts let that slide, especially in the death belt of former slave states like Mississippi.

Considering the facts in Curtis Flowers’ case, the Supreme Court viewed several factors as particularly important. First, there was the history of racially biased jury selection in the previous five trials.

Second, there was the fact that 5 of the 6 black prospective jurors were removed at the sixth trial. Third, the prosecutor spent a lot more time questioning black prospective jurors than white prospective jurors.

And fourth, the prosecutor offered reasons for removing black prospective jurors that also applied to white prospective jurors who were not removed. The Supreme Court considered each factor in turn.

Talking about the history of racially biased jury selection in the previous five trials, the Court said that “the numbers speak loudly.” This is important because it reinforces the ability of trial courts to consider past practices when deciding Batson challenges.

The Court then addressed the jury selection process at the sixth trial. There were 6 black prospective jurors and the prosecutor used his strikes to remove 5 of them. The seated jury was made up of 11 white people and 1 black person.

The Supreme Court made an important note here. The opinion mentioned that prosecutors might seat a single black juror in an effort to hide their discrimination. The Court said that this is another factor that should be weighed against the prosecutor.

Next, the Court addressed the prosecutor’s “disparate questioning” of the prospective jurors during jury selection. The prosecutor asked the 5 black prospective jurors who were removed a total of 145 questions. He asked the 11 seated white jurors a total of 12 questions.

That comes out to an average of 29 questions for each removed black prospective juror and an average of 1 question for each seated white juror. The Court slapped down the prosecutor’s justification for the disparate questioning and found that it was evidence of discrimination.

Finally, the Court looked at the way the prosecutor treated black prospective jurors versus white prospective jurors in similar situations. When a prosecutor strikes a black juror and keeps a white juror with similar characteristics, that can be evidence of discrimination.

Looking at “all of the relevant facts and circumstances taken together,” the Supreme Court ruled that the trial court was wrong when it allowed the prosecutor to remove 5 of the 6 black prospective jurors at the sixth trial. Curtis Flowers’ conviction and sentence were reversed.

Justice Alito wrote a concurring opinion. He said that this case is “highly unusual,” even “one of a kind.” In some ways, that might be true. It’s not too common to see someone tried six times for the same crime by the same prosecutor each time.

But racial discrimination in jury selection is not highly unusual. It’s a serious problem all across the United States and especially in death penalty cases. Curtis Flowers’ case is an extreme example of the kind of discrimination that happens in courtrooms all the time.

Justice Thomas wrote a dissent and Justice Gorsuch signed on to most of that opinion. Justice Thomas argued that the Supreme Court shouldn’t have considered the case because it cost Mississippi a lot of resources and delayed the planned execution of Curtis Flowers.

Justice Thomas didn’t mention the fact that the prosecutor has already wasted a ton of Mississippi taxpayer resources by taking this case to trial six times and committing serious misconduct in at least four of those trials.

Writing for himself alone, Justice Thomas expressed skepticism about the Batson rule itself. In closing, Justice Thomas noted that he was happy that Mississippi can still prosecute Curtis Flowers a seventh time.

So why does all this matter? The Flowers decision reinforces the Batson rule that prosecutors cannot discriminate against minority jurors. It tells us some of the factors that are important in these cases.

Curtis Flowers’ case pulled the curtain back on racism that persists in jury selection in Mississippi and across the country. This form of discrimination costs people their freedom and, in capital cases, their lives.