February 19, 2019
Last year, I blogged about the interesting matter of Curtis Flowers, the African-American who has been tried six times for a quadruple homicide that occurred 23 years ago in the Missisiippi city of Winona. Flowers was tried and convicted in 1997 but, on appeal, the Mississippi Supreme Court threw out of the conviction, citing prosecutorial misconduct.
Flowers was tried a second time and was again convicted. He again appealed, and the Mississippi Supreme Court again threw out the conviction, again citing prosecutorial misconduct.
He was again convicted after a third trial and, again, the Mississippi Supreme Court threw out the conviction, citing the State’s deliberate attempt to keep African-Americans off the jury, and calling it as bad a case of such racial discrimination “as we have ever seen” (this is Mississippi, mind you).
Flowers was tried a fourth time. The jury — the first in which there was more than one black juror — could not reach a verdict, and the judge declared a mistrial.
Flowers was tried a fifth time. The jury, which also had multiple black jurors, likewise was unable to reach a verdict, and another mistrial was declared.
Flowers was tried a sixth time. This time, the jury found him guilty. And this time, the Mississippi Supreme Court affirmed the conviction. Flowers is on Mississippi’s death row. And next month, the U.S. Supreme Court will decide whether the prosecution’s use of peremptory challenges to exclude black jurors was unconstitutional.
According to this article in the New York Times, a survey of the 225 trials handled by the prosecutor for Montgomery County (where Winona is located) over 25 years, involving 6,763 potential jurors, revealed that prosecutors had used peremptory challenges against 50 percent of black potential jurors and against only 11 percent of white ones.
The problem that Flowers faces is that there is a very low bar for allowing peremptory challenges; as the Supreme Court has written, while a juror may not be struck solely on the basis of race, the reasons for striking a juror need not be “persuasive, or even plausible.”
On the other hand, according to the Times, in 1989, a Yale law student by the name of Brett Kavanaugh wrote an article in the Yale Law Journal “calling for vigorous scrutiny of the reasons offered for peremptory challenges where race may have played a role.” The article’s epigraph came from Justice Thurgood Marshall’s concurring opinion in the decision which limited the right to peremptory challenges when race is involved: “Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons.” Kavanaugh went on to caution against “misguided allegiance to the peremptory challenge.”