A Cross Section of Whose Community?: Flowers v. Mississippi and Racial Discrimination in Peremptory Challenges

On the morning of July 16, 1996, a retired employee of Tardy Furniture in Winona, Mississippi entered the store only to be met with a grisly sight: the owner and three workers lay dead, all having been shot.[1] Police suspicion quickly fell on a black man by the name of Curtis Flowers, who had been fired from the store 13 days prior to the shootings and had owed Bertha Tardy, the owner, $30. His arrest sparked a dramatic legal saga that has spanned over twenty years, six different trials, serious accusations of racism against the prosecution, and now a trial before the United States Supreme Court. 

The six murder trials since the 1996 murders – each prosecuted by District Attorney Doug Evans – have been marred by serious and potentially racially-motivated procedural concerns. Three times, Evans managed to secure a guilty verdict only for the Mississippi Supreme Court to throw out convictions due to prosecutorial misconduct, including racial discrimination in jury selection and misrepresenting evidence in order to confuse and mislead the jury.[2] Two other cases ended in hung juries.[3] The case before the Supreme Court concerns the sixth trial, conducted in 2010, where the jury decided to convict Flowers and sentence him to death. 

The cases centers on the prosecution’s use of “peremptory challenges,” – the practice by which a prescribed number of potential jurors can be dismissed without any evidence about their partiality – and whether they have been racially-motivated decisions in order to exclude black jurors.[4] The defense alleges that Doug Evans had knowingly excluded jurors solely on the basis of race. Flowers’ lawyer, defense attorney Sheri Johnson of Cornell University’s Death Penalty Project, has pointed to Evan’s history of using the vast majority of his strikes against African-American jurors. Indeed, sixty-one of the 72 jurors in the six-trials were white, and the trials which ultimately decided to convict contained no more than a single black juror – in a county which is 45-percent black.[5] As further evidence, the defense alleges that the prosecution engaged in “disparate questioning” of black potential jurors – asking up to three times as many questions to them as their white counterparts in search of reasons to exclude.[6] Moreover, the defense hopes to use the previous decisions by the Mississippi Supreme Court to vacate the convictions – largely on the grounds of racial bias – to paint a picture of Evans as being committed to underhanded and racist tactics to secure a conviction. For example, when Mississippi’s highest court reversed Mr. Flowers’s third conviction, the judges chastised Mr. Evans for what they deemed “as strong a prima facie case of racial discrimination as we have ever seen” in the context of jury selection jurisprudence.[7]

Although not guaranteed as a constitutional right, peremptory challenges are generally regarded as a cornerstone of criminal trials and granted by statute or case law. However, the inherently discretionary nature of peremptory challenges means they are particularly susceptible to biases – especially where race is concerned.[8] As the infamous O.J. Simpson trial of 1995 made clear to the world, the racial composition of the jury in racially sensitive cases is of paramount interest to both the prosecution and defense. For example, the Jury Sunshine Project, analyzing data on juror removals in North Carolina, found that prosecutors removed about 20 percent of African-Americans available in a jury pool, compared to just 10 percent of whites. Defense attorneys, seemingly in response, removed about 22 percent of white jurors, compared to just 10 percent of black jurors.[9] In fact, Justice Clarence Thomas asked his first question during oral arguments in three years during the Flowers case precisely about whether the defense had used their peremptory challenges to target white jurors.[10]

Thus, the outcome of the Flowers case – and others like it – hinges on the way the courts choose to apply the precedent set in the case Batson v. Kentucky (1986). In Batson, the Supreme Court ruled that a prosecutor’s use of peremptory challenge in a criminal case may not be used to exclude jurors solely on the basis of race. In the case, James Kirkland Batson, an African American man, was convicted of burglary in a Louisville, Kentucky circuit court by an all-white jury. In the voir dire – or jury selection – phase of the trial, the prosecutor peremptorily challenged all four black persons among the potential jurors, resulting in an all-white jury. The defense alleged that the prosecution’s peremptory challenges were an intentional move to create a biased jury to guarantee a guilty conviction, denying both the defendant’s Sixth Amendment right to have a jury drawn from a cross section of the community and the defendant’s Fourteenth Amendment to equal protection under the laws.[11] The Court, in a 7-2 decision, concluded that the prosecutor’s peremptory challenges had, indeed, violated Batson’s Sixth and Fourteenth Amendment rights. The majority held that racial discrimination in jury selection deprives the accused of their rights and “undermines public confidence in the fairness of our system of justice.” Thus, the decision created the Batson challenge, wherein the party making a peremptory challenge can be forced to provide a “neutral reason” for excluding a juror other than race.[12]  The Batsonchallenge remains the dominant precedent used for evaluating whether a peremptory challenge was racially discriminatory and therefore grounds for vacating a conviction. The issue, however, that has remained since the Batson decision is that it is unclear exactly how judges are supposed to evaluate the legitimacy of peremptories. Subsequent cases have further complicated that issue; for example, Purkett v. Elem (1995) held that any race-neutral justification would suffice, not even necessarily one which his “persuasive or even plausible.”[13]

Although the American legal system is popularly venerated as a bastion of justice insulated from human fallibility, it remains susceptible to the biases and ill-intentions of the humans who comprise the system. The on-going case Flowers v. Mississippi before the Supreme Court raises the ghosts of the war between the sacrosanct belief in due process and haunting specter of structural racism that have remained in conflict since the legal system’s inception. The decision of the case will speak volumes about the legitimacy of the legal system in the eyes of marginalized communities. As Justice Brett Kavanaugh voiced during oral arguments – echoing Justice Powell’s majority decision in Batson v. Kentucky (1986) – the court could once again uphold the principle that equality in the realm of jury selection is “not just for the fairness to the defendant and to the juror, but that the community has confidence in the fairness of the system.”[14]

[1] "Flowers v. Mississippi." Oyez. Accessed March 30, 2019. https://www.oyez.org/cases/2018/17-9572.

[2] Epps, Garrett. "A Racial Pattern So Obvious, Even the Supreme Court Might See It." The Atlantic. March 18, 2019. Accessed March 30, 2019. https://www.theatlantic.com/ideas/archive/2019/03/flowers-v-mississippi-jurors-removed-because-race/585094/.

[3] Zhu, Alissa. "Who Is Doug Evans, the Mississippi District Attorney Who Tried Curtis Flowers Six Times?" The Clarion Ledger. March 21, 2019. Accessed March 30, 2019. https://www.clarionledger.com/story/news/2019/03/21/doug-evans-mississippi-winona-district-attorney-curtis-flowers/3227830002/.

[4] Flowers v. State of Mississippi (2010)

[5] Baran, Madeleine, and Parker Yesko. "Justice Brett Kavanaugh May Be Key to Freeing Curtis Flowers." Justice Brett Kavanaugh May Be Key to Freeing Curtis Flowers | 'We Can't Take the History out of the Case' | APM Reports. Accessed March 30, 2019. https://www.apmreports.org/story/2019/03/20/curtis-flowers-oral-arguments-supreme-court.

[6] Craft, Will. "For Curtis Flowers, a Question of Race." In the Dark | APM Reports. Accessed March 30, 2019. https://www.apmreports.org/story/2019/03/18/curtis-flowers-black-prospective-jurors-questions.

[7] https://www.nytimes.com/2019/03/21/opinion/curtis-flowers-supreme-court.html

[8] Sommers, Samuel R., and Norton, Michael I. "Race and Jury Selection: Psychological Perspectives on the Peremptory Challenge Debate." American Psychologist 63, no. 6 (2008): 527.

[9] North Carolina Jury Sunshine Project Findings Now Available for Journalists Covering 2018 Elections | News & Events | Wake Forest School of Law. Accessed March 30, 2019. http://news.law.wfu.edu/2018/07/north-carolina-jury-sunshine-project-findings-now-available-for-journalists-covering-2018-elections/.

[10] Liptak, Adam. "Clarence Thomas Breaks a Three-Year Silence at Supreme Court." The New York Times. March 20, 2019. Accessed March 30, 2019. https://www.nytimes.com/2019/03/20/us/politics/clarence-thomas-speaks-supreme-court.html.

[11] "Facts and Case Summary - Batson v. Kentucky." United States Courts. Accessed March 30, 2019. https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-batson-v-kentucky.

[12] "Batson v. Kentucky." Oyez. Accessed March 30, 2019. https://www.oyez.org/cases/1985/84-6263.

[13] Sommers, Samuel R., and Norton, Michael I. "Race and Jury Selection: Psychological Perspectives on the Peremptory Challenge Debate." American Psychologist 63, no. 6 (2008): 529-30.

[14] Board, The Editorial. "Racism in Jury Selection Is Real. Can the Supreme Court Put an End to It?" The New York Times. March 22, 2019. Accessed March 30, 2019. https://www.nytimes.com/2019/03/21/opinion/curtis-flowers-supreme-court.html.