Flowers: Seventh Try The Charm?

When Justice Sam Alito goes with the majority’s reversal of a death penalty conviction, you know it has got to be bad. And as Justice Brett Kavanaugh’s opinion made plain, it was bad.

Four critical facts, taken together, require reversal. First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court.

Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.

Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors.

Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.

The murders for which Curtis Flowers stood convicted and sentenced to death happened in 1996. The final line in the 7-2 opinion, the last word to a defendant who had already endured six trials, had been in custody for decades, was the best the Court could do under the law:

We reverse the judgment of the Supreme Court of Mississippi, and we remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Back he goes to Mississippi. to face a seventh trial should that be what the state decides to do. The facts of the case are not without serious problems, making it certainly possible that Curtis Flowers will be acquitted of four murders, but as anybody who has ever tried a case will tell you, that’s by no means assured. Even if his jury is comprised of twelve angry black people, they may convict. You never know what a jury will do, and never know if they’re angrier at the state or you.

There was little question that the prosecutor who tried Flowers’ six prior trials did everything he could to make sure no black person sat in judgment. It was as flagrant as any pretextual excuse for keeping people who shared Flowers’ skin color out of the courtroom as possible. The prosecutor at each of Flowers’ trials, Doug Evans, was going to make sure his jurors were white, apparently having inadequate faith in his case or his skills as a lawyer to obtain a conviction without gaming the jury.

Justice Kavanaugh said that the “dramatically disparate questioning” of black jurors to find a pretext to strike them “strongly suggests that the State was motivated in substantial part by a discriminatory intent.”

That damning conclusion vindicates both Batson and enduring principles of equal justice under law. The circumstances surrounding Mr. Flowers’s trial and subsequent retrials caused even Justice Samuel Alito, who has long been skeptical of capital defendants, to join the majority opinion and show some sympathy for Mr. Flowers. In a two-page concurrence, Justice Alito suggested that a new trial may not even be possible in the county where Mr. Evans brought the charges time and again.

There’s little serious doubt this is true. It was that flagrant. But this decision hinged on a Batson challenge. As clear as Doug Evan’s discriminatory strikes could be, the right at stake in Batson wasn’t that of the defendant, but that of the stricken juror. Theoretically, the defendant could be in complete agreement with the exercise of the peremptory strike of a juror based on racial animus, and it wouldn’t change the Batson issue.

In dissent, Justice Clarence Thomas snarked back at this use of Batson.

Nonetheless, Flowers’ question presented at least had the virtue of being a question of law that could affect Batson’s application. Unchastened by its Foster remand, however, the Court granted certiorari and changed the question presented to ask merely whether the Mississippi
Supreme Court had misapplied Batson in this particular case. In other words, the Court tossed aside any pretense of resolving a legal question so it could reconsider the factual findings of the state courts. In so doing, the Court disregards the rule that “[w]e do not grant a certiorari to review evidence and discuss specific facts,” United States v. Johnston, 268 U. S. 220, 227 (1925), particularly where there are “‘concurrent findings of fact by two courts below,’” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 841 (1996).

To the surprise of some, the Supreme Court doesn’t generally take cases to reverse the wrong result, but to address the wrong law. In taking Flowers, it was to right a wrong. For those of us who cling to the somewhat unlawyerly view that the Supremes have enough time on their hands to right wrongful convictions if they just worked a little harder, this is its duty. But Justice Thomas, who sits in the Thurgood Marshall chair, joined by Justice Neil Gorsuch, didn’t see a problem with the pretexts anyway.

The majority’s opinion is so manifestly incorrect that I must proceed to the merits. Flowers presented no evidence whatsoever of purposeful race discrimination by the State in selecting the jury during the trial below. Each of the five challenged strikes was amply justified on race neutral grounds timely offered by the State at the Batson hearing. None of the struck black jurors was remotely comparable to the seated white jurors. And nothing else about the State’s conduct at jury selection—whether trivial mistakes of fact or supposed disparate questioning— provides any evidence of purposeful discrimination based on race.

After all, one of the 42 stricken jurors who got to sit at one of Curtis Flowers’ six trials was black, and that was enough to overcome the pretextual excuses for Thomas.

Was a wrong righted? Certainly it reversed the conviction based on a denial to Curtis Flowers of a jury of his peers, meaning jurors who shared his race and, hopefully, were not inclined to let the fact that his skin was black affect their decision of whether the evidence of guilt was sufficient to sustain the burden of proof beyond a reasonable doubt. Redressing racial discrimination in jury selection can’t be a bad thing.

But then, will Flowers go back to face a seventh trial? Even if there are black people on his jury, will Flowers be acquitted? If he is acquitted, where does he go to get back the years of his life since 1996, when this travail began? And what’s any of this got to do with Batson anyway?

7 thoughts on “Flowers: Seventh Try The Charm?

  1. Richard Kopf


    Oddly, this Supreme Court case was almost exclusively about who was right on the facts. What struck me about Justice Thomas’ dissent was how well he dived deep, and I mean deep, into the facts and weaved a convincing argument that Justice Kavanaugh and the majority were badly wrong on the facts. I urge those who want to learn how to write a convincing rebuttal when confronted with bad facts to read the dissent. In short, I was sure Kavanaugh was right until I read Justice Thomas’ dissent.

    All the best.


    PS The case also reminded me about how difficult it can be to pick a jury in a small community.

    1. M Tadros

      Non-lawyer opinion: but I read it also and I thought the exact same thing.

      Reading Kavanaugh, I was all like “Aw, man, how did they ever think they could get away with this? It’s so obvious!”

      Then I got to the dissent, and I couldn’t tell whether it was because it was the last thing I was reading, or whether it was due to phrases such as “The majority’s opinion is so manifestly incorrect that…” and “The only clear errors in this case are committed by today’s majority…” and “If the Court’s opinion today has a redeeming quality it is this: The State is perfectly free to convict Curtis Flowers again,” but for one reason or another, Kavanaugh’s position was no longer quite as obvious as before.

      1. M Tadros

        I feel awkward commenting more than once a post since I feel like I have nothing substantial to add, but I clicked the link (“hinged on…”) in your post and found this quote written by SHG: “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?”

        This is so very true. It was the first thing I thought. I think it must be the first thing almost everyone thinks. I figured there must be some obscure legal reason the State feels like a seventh trial is an option, but to the common person… if I hear about someone being tried twice, I already think that the guy is probably innocent. Six times? What the hell?

        A normal person thinks: “There really ought to be a limit.”

        And what has the prosecution been doing all this time, other than fumbling this case over and over and over and over and over and over, six times over for more than two decades? Have they investigated any other possible suspects? Can they even do that at this point? Can they ever go back now, after six trials, and admit they had the wrong guy the whole time?

  2. B. McLeod

    “Back he goes to Mississippi.” That would be a great first line for a song (or maybe just for the refrain).

Comments are closed.