The United States Supreme Court granted relief yesterday in the case of Curtis Flowers, who was sentenced to death in Mississippi after prosecutors barred nearly every African American prospective juror from serving on his jury.
Mr. Flowers has been tried six times for the same offense in Winona, Mississippi, in 1996. In the six trials combined, the State struck 41 of the 42 Black prospective jurors it could have struck.
“The numbers speak loudly,” the Court wrote in yesterday’s 7-2 decision reversing the state court. “The State’s relentless, determined effort to rid the jury of Black individuals strongly suggests that the State wanted to try Flowers before a jury with as few Black jurors as possible, and ideally before an all-white jury.”
At the sixth trial, the prosecutor removed five of six Black prospective jurors. Mr. Flowers was convicted and sentenced to death by a jury of 11 white people out of an original venire that was 42 percent African American.
He challenged the prosecutor’s strikes on appeal, and a divided Mississippi Supreme Court denied relief after failing to consider Mr. Evans’s extensive record of racially biased jury selection in this case.
“We cannot ignore that history,” the Court admonished the state court. “We cannot take that history out of the case.” In fact, the Court’s precedent holds that courts “must examine the whole picture” in evaluating a Batson claim.
Part of that picture in Mr. Flowers’s case was the State’s dramatically disparate questioning of Black and white prospective jurors. The prosecutor asked 29 questions on average to each struck Black juror compared to one for each seated white juror. “A court confronting that kind of pattern cannot ignore it,” the Court wrote, because the “lopsidedness of the prosecutor’s questioning and inquiry can itself be evidence” of discriminatory intent.
These facts, together with the prosecutor’s failure to ask follow-up questions of white prospective jurors who knew dozens of people involved in the case, “requires skepticism of the State’s strike of Carolyn Wright,” a Black woman whom the State claimed it struck because she knew several defense witnesses.
“We must examine the Wright strike in light of the history of the State’s use of peremptory strikes in the prior trials, the State’s decision to strike five out of six Black prospective jurors at Flowers’ sixth trial, and the State’s vastly disparate questioning of Black and white prospective jurors during jury selection at the sixth trial,” the Court concluded.
“We cannot just look away. Nor can we focus on the Wright strike in isolation. In light of all the facts and circumstances, we conclude that the trial court clearly erred in ruling that the State’s peremptory strike of Wright was not motivated in substantial part by discriminatory intent.”
A study by American Public Media’s In the Dark podcast series found in 2018 that, in the 26 years since Mr. Evans was elected district attorney in 1992, prosecutors struck prospective Black jurors at nearly four and a half times the rate of white prospective jurors. The series’s second season casts doubt on much of the State’s evidence against Mr. Flowers, who has always maintained his innocence.
As Mr. Flowers’s case demonstrates, nearly 135 years after Congress passed the Civil Rights Act of 1875 to eliminate racial discrimination in jury selection, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.
EJI’s report, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, is a comprehensive study of racial bias in jury selection which shows that supreme court cases have failed to eliminate racially biased jury selection due to cultural inertia, lawyers’ distaste for accusing each other of racism, judges who do not effectively evaluate claims of racial bias, and prosecutors who circumvent the rules in order to achieve a tactical advantage in the courtroom.