Supreme Court examination of jury discrimination prompts rare question from Clarence Thomas

Clay Curtis
March 21, 2019

The justices made clear they would not ignore District Attorney Doug Evans' history as they weighed his decision to excuse five black prospective jurors from inmate Curtis Flowers' most recent trial.

The hour-long argument brought a surprise: a question by Justice Clarence Thomas, and one that went in an opposite direction. "That's why he strikes black jurors", said Ray Charles Carter, who defended Flowers in his last four trials.

Comparing another white juror with an African-American who was not selected, Justice Stephen Breyer said little appeared to distinguish the two women, apart from race.

Alito, Chief Justice John G. Roberts Jr. and others seemed to be searching for a rule that would guide courts about how far in the past they should go to judge whether a prosecutor's stated reasons for striking a juror are just.

The high court heard an appeal by Flowers of his 2010 conviction in his sixth trial on charges of murdering four people at the Tardy Furniture store where he previously worked in the small central MS city of Winona.

Flowers, now 48, has been in jail for 22 years, since his arrest after four people were found shot to death in a furniture store in Winona, Mississippi, in July 1996.

He nonetheless said prosecutors' past conduct was "very troubling" and "certainly relevant".

The sentiment was shared by Justice Elena Kagan who felt that the questions asked of black jurors by the prosecutory were "staggering" compared to white jurors.

The record shows Evans had good, race-neutral reasons to keep the five African-Americans off the jury, Davis said.

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They can strike potential jurors they simply don't want on the jury, and generally those choices cannot be second-guessed. In three other trials, convictions were overturned because of misconduct on the part of District Attorney Doug Evans that violated the Supreme Court's ruling in Batson v. Kentucky, which says that jurors may not be dismissed due to their race.

The conservative judge spoke towards the end of Wednesday's hearing to ask Curtis Flowers's defense team if they had pushed forward any "peremptory challenges" for their client's six cases.

And, he asked, "against that backdrop of a lot of decades of all-white juries convicting black defendants. can you say confidently, as you sit here today. that you have confidence in how all this transpired in this case?" One black juror took part in each of the three other trials. "The question is the motivation of Doug Evans", she said. Justice Brett Kavanaugh asked. "But I would add that her motivation is not the question here".

"Except for her race, you would think that this is a juror that a prosecutor would love when she walks in the door".

The Flowers case marked the latest dispute to reach the justices over allegations of racial bias in an American criminal justice system in which blacks and other minorities are disproportionately represented in prison populations.

On race issues, Thomas has been a decisive vote to restrict affirmative action programs created to help minorities overcome past discrimination.

Sotomayor interjected that because of Evans's actions, white jurors were the only ones left to strike.

"She only exercised peremptories against white jurors", Johnson replied.

The Supreme Court in Washington is expected to render its decision by June this year, but Baran said that even if it rules in Flowers' favour, it will only highlight the problem rather than remedy it.

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