Flowers’ Sixth and The Failure of Batson

The saga of Mississippi death row inmate Curtis Flowers, whose case was just argued before the Supreme Court following his sixth trial for the murder of four people at a furniture store in 1996, struck even Justice Sam Alito as too much to endure, calling it “troubling,” and Justice Brett Kavanaugh was as clear as possible in asking Mississippi Assistant Attorney General Jason Davis:

“Can you say, as you sit here today [that] you have confidence in how this all transpired in this case?”

Flowers has spent 22 years in custody up to now, after his first through third trial convictions were reversed, his fourth and fifth trials hung, and his sixth resulted in the current conviction. The issue is Batson, the use of peremptory strikes by District Attorney Doug Evans to remove as many black people from the jury as he could.

To not recognize that Flowers’ convictions hinged on his being denied his peers, black jurors, is nearly impossible. When he fortuitously got more than one, the jury hung. When the pool and number of peremptories worked out in Evans’ favor, he was convicted. And from the distance of never having picked jury, like Justice Clarence Thomas, who broke his latest three year silence to ask a question that demonstrated he doesn’t know how voir dire works, the problems seem obvious and the solutions simple.

There’s little chance that the Supreme Court will do away with or put greater limits on the use of peremptory challenges — a radical solution not presented in Mr. Flowers’s case but one has been advanced by the likes of Justice Thurgood Marshall and legal scholars who have studied the abuse of the practice.

But, as Justice Brett Kavanaugh acknowledged on Wednesday, 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.” That would be a worthy outcome — and may, at long last, give Mr. Flowers the fair trial he deserves.

Such lofty words, particularly at a time when the confidence of the community seems, to the unwashed, to be paramount. Among the many problems in this case is one that few will mention, because it’s nearly offensive to the sensibilities of “justice-seekers.” The ruling in Batson was fine, but half-baked. The rationale, on the other hand, was nonsensical and counterproductive. Mind you, the dreaded and completely unprincipled reverse-Batson is far worse, but the natural offspring of such a bad rationale.

That Batson prohibits the use of peremptory challenges to discriminate on the basis of race, it’s not because of the defendant’s right to a jury of his peers, but because the veniremen, the potential jurors, have a right not to suffer discrimination at the hands of the prosecutor. That it was applied to the defense as well was merely a demonstration of the adage, “remember the rubric, forget the rationale.” The defense isn’t the state. The defendant’s right to a defense is enumerated and superior to this attenuated equal protection right of citizens to be jurors. But so what?

While Flowers suffered from Evans’ racist strikes, and the underlying facts made it abundantly obvious that, pretextual excuses aside, they were plainly racist, it wasn’t because Flowers had a right he could enforce against this racism, but that the potential jurors were the victims. This forecloses most effective solutions from the defense since the defendant might have been convicted, but wasn’t denied his right to serve on a jury.

One solution proffered is the elimination of peremptories. It’s a terrible idea. The fantasy, thatthey might eliminate them only for prosecutors but not the defense, is absurd. Reverse-Batson, anyone? More to the point, the only reason such a bad solution is considered is because Batson foreclosed any decent means of dealing with the problem because its rationale was such crap.

The exercise of racist peremptory strikes happens in the well during voir dire. It takes three to make it happen, a prosecutor who believes that it will serve his interests in obtaining a conviction, which, assuming regularity, he believes is necessary because he believes the defendant committed the crime. It takes a defense counsel to fail to make the Batson challenge, or to do a half-assed job of it. And it takes a judge to accept the prosecutor’s pretexual reason for the strike and reject the challenge that it’s racially motivated. It’s great that Flowers appears to have a receptive Supreme Court, but all those years in jail aren’t going to magically disappear with a win.

It’s not hard to come up with a decent pretextual answer to a Batson challenge.  Any half-competent prosecutor can muster something. And in any particular instance, it might smell legit, that a juror had some experience in his life that would make him biased against the police, thereby justifying the exercise of the strike. But what about the totality of the strikes, to wipe out en masse a race from a jury? Well, that’s not how Batson works, since it’s not the defendant’s right but the jurors’. What about an interlocutory challenge to the venire based on striking all, or almost all, people of a single race? Nope. Neither the procedure nor the right exists.

But then there’s an entirely separate problem in Flowers, which anyone considering what happened to him invariably senses, even if they can’t put a legal finger on it. Six trials? Even if he wins at SCOTUS, what then? More trials? Ten trials? One hundred trials? How many tries should a prosecutor get to achieve a sustainable conviction?

As long as the focus in the well is misdirected because Batson has failed to provide a viable means of dealing with eliminating blacks from the jury, and precludes potential tools because it’s based on a ridiculous feel-good rationale, it will continue to serve as a palliative, only honored in the breach a few courts downstream.

But if no prosecutor got more than three bites of the apple to achieve a sustained conviction, Flowers would be home with his family today. We have the three pony rule. We have Holmes’ blight of three generations of imbeciles. Due process should preclude more than three trials, as no one should have to fight over the racist striking of blacks from a jury at his sixth trial.

8 thoughts on “Flowers’ Sixth and The Failure of Batson

  1. wilbur

    [Ed. Note: just use the link without any coding ([youtube…]) and it will work. I have to edit your code out otherwise. TIA]

  2. Skink

    “Due process should preclude more than three trials, as no one should have to fight over the racist striking of blacks from a jury at his sixth trial.”

    For all reversals, or just those based on the composition of the venire?

    1. SHG Post author

      Three tries to get a sustainable verdict, no matter what, is enough opportunity for any government.

  3. Richard Kopf


    While I agree with you about application of the “three pony” rule for the Flowers case, I wager that the Court, at least behind the scenes, will adopt the 20 Mule Team Borax rule. The latter rule stands for the proposition that the law should stubbornly and very slowly trudge ahead with a wagon of words that obscure both reality and the obvious solution.

    Flowers is really not about Batson. It is about due process and a prosecutor who flaunts it. Given the history of the case, the rational and practical solution now is simply to say enough. Mr. Flowers fly like a bird, you are free. Due process has sharp teeth.

    All the best.


    1. SHG Post author

      Poor Flowers can’t fly, sadly, as his wings have been clipped by the 22 years of his life forfeited to the 20 Mule Team Borax Rule. There’s no rule that can give them back.

  4. szr

    The more I think about your proposed “three trial” limit rule, the more I like it. Your rule would likely do more to deter Batson violations than any Batson expansion. A smart prosector would be very careful to avoid any hint of misconduct if he or she knows that there is a “three trial” limit. Even a not-so-smart prosecutor would probably be more careful during a third trial.

    I can imagine your rule would be subjected to intense case law refinement over time over what, e.g., counts as a trial. But refinement from experience is what our courts do best.

  5. B. McLeod

    Obviously, somebody needs to get Batson to say “Shazam” so that it will be transformed into a marvel of a new, super-precedent that will adequately address race-based exclusion of jurors.

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