A Racial Pattern So Obvious, Even the Supreme Court Might See It

Flowers v. Mississippi reveals a rickety American legal system.

A courtroom
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The American legal system pretends to marble-and-mahogany majesty, but is in fact often a rickety, underfunded contraption, run by overworked mortals who are sometimes incompetent and sometimes actually ill-intentioned. But even amid law’s cratered landscape, sometimes a specific case presents facts simply beyond belief; sometimes the “system” stands revealed as nothing more than one human being tormenting another because he can.

For me, such a case is Flowers v. Mississippi, a death-penalty appeal to be argued before the Supreme Court on Wednesday. The specific issue the Court will hear is whether, during a murder trial in 2010, a Mississippi prosecutor named Doug Evans deliberately used “peremptory challenges” to remove potential jurors because of race. If the U.S. Supreme Court agrees, then Flowers’s conviction for multiple murders in 1996 will be set aside.

Of course, if that happens, Evans can simply try Flowers again on the same charges. And why wouldn’t he? Evans has already prosecuted Flowers for the same crime six times over the past 20 years.

Evans’s record against Flowers is 1–5. First, he obtained a conviction that was set aside by the state appeals courts because of misconduct designed to confuse and mislead the jury—he introduced evidence of crimes that were not before the court; implied that he had evidence that a defense witness had lied when there was no such evidence; and told the jury about “taped statements” by Flowers that didn’t exist. In the next two trials, he obtained convictions by engaging in the precise misconduct alleged in this case: intentionally using race to skew the jury against Flowers, who is African American.

The next two trials ended in mistrials because the jurors could not agree. The second time that happened, the trial judge had the lone holdout—an African American juror—arrested in the courtroom, and threatened to jail Flowers’s African American lawyer. Charges against the juror were dropped, but a message was sent. The sixth time, in 2010, a jury agreed that Flowers was guilty of four murders and sentenced him to death.

Formally, that sixth conviction is the only one before the Supreme Court. Again, the issue is whether Evans deliberately used race to exclude eligible members of the jury pool. Answering that question requires understanding the rules of jury selection.

A prosecutor or defense lawyer may conclude after questioning that a specific juror is likely to vote for the other side. If there’s a good reason to think the juror can’t be fair—if, for example, a juror is closely related to a party or witness, or if a juror expresses the belief that the police usually lie (or usually tell the truth)—a lawyer can have the juror excluded “for cause.” But that leaves a lot of jurors who may give off a worrisome vibe to one side or the other. To address this concern, each side is given a fixed number of “peremptory challenges,” or strikes; when counsel uses one, a potential juror is automatically excused. If the process goes on long enough, eventually both sides run out of challenges.

Although the peremptory-challenge system is a venerable part of American criminal procedure, it can conflict with a more important principle: that deliberate use of race to exclude jurors violates the constitutional guarantee of “the equal protection of the laws.”

The 1986 Supreme Court case Batson v. Kentucky tried to forestall race-related misconduct; Batson and related cases established procedures for rooting out improper exclusions. In brief: If challenges by a prosecutor (or, less often, a defense lawyer) seem to follow a racial pattern, opposing counsel may allege a “prima facie” case of discrimination; if the judge agrees that there is a questionable pattern, he or she convenes a “Batson hearing,” in which the lawyer using the challenges is allowed to give a “non-racial” reason for each challenge. The objecting party has the burden of proving that the excuses are bogus; if it does, the trial judge may order the excluded juror(s) seated; the judge may also dismiss the entire jury panel and begin jury selection with a new pool. If the “non-racial” reasons convince the trial judge, however, the Batson motion will be rejected, and the case will proceed to trial. If, after a conviction, an appeals court finds a Batson violation, the remedy is a new trial.

In Flowers’s most recent trial, his lawyer pointed out to the judge that Evans devoted much more time to questioning black potential jurors than whites—as if perhaps searching for some reason to exclude them. In the Batson hearing, Evans cited some reasons that didn’t seem justified by the facts, or might have applied to white jurors if he had asked. The defense asked the trial judge to consider the two previous trials in which Evans was found by higher courts to be misusing peremptory strikes. But the trial judge accepted Evans’s rulings as “race-neutral,” and overruled the Batson motion because the defense couldn’t show him white jurors who had been accepted despite presenting the identical reason for removal. The jury that resulted had 11 white members and one African American; it convicted Flowers and sentenced him to death. The state appeals courts this time found no fault with the verdict.

The facts of the case—both of the murders charged and of the multiple tortuous trials—are complex. On the morning of July 16, 1997, someone entered the Tardy Furniture Store in Winona, Mississippi, and killed the four people there. Official suspicion soon focused on Flowers, a local resident then 27 years old. He had worked for the store owners for a few days and then walked off the job; police speculated that he had some grudge against his former employers.

The best possible introduction to the investigation and trials that followed is available in the 11 episodes of Season 2 of In the Dark, the Peabody Award–winning podcast from American Public Media. APM senior reporter Madeleine Baran and her team moved to Winona, the scene of the crime, and lived there for nearly a year. They interviewed local citizens—witnesses, family members of victims and suspects, former jurors, and law-enforcement personnel. They also ventured into dusty archives and bug-ridden warehouses where old trial, investigation, and jailhouse records were kept. It is as thorough a piece of reporting as I have ever seen.

The portrait that emerges is devastating—of law-enforcement officials and a prosecutor who fastened on one suspect right away, despite the lack of direct evidence; ignored evidence pointing at others; and relied on highly suspect testimony by jailhouse snitches who have since recanted. They concealed evidence pointing to a different credible suspect. A gun that could have been the murder weapon was found, turned in to the police, and sent by them to Evans’s office for testing. It has not been seen again.

After the sixth conviction was affirmed, Flowers in 2016 petitioned the Supreme Court for review. The Court, in a terse order, vacated the Mississippi Supreme Court’s opinion and sent the case back to it. The reason was a new decision called Foster v. Chatman, in which a Georgia death-row inmate obtained records in which prosecutors highlighted the race of black jurors and wrote comments such as “definite NO!” or “No Black church” after their names. The Supreme Court voided that conviction, 7–1, in an opinion suggesting that lower courts should take disguised racism in jury selection more seriously than they had been.

In Flowers’s case, the Supreme Court’s order instructed the Mississippi Supreme Court to reconsider its opinion in light of Foster v. Chatman. But those judges, 5–4, reaffirmed their earlier decision. The majority pointed out that Flowers didn’t have the same explicit sort of evidence—notes saying “no blacks,” etc. “We cannot say that the exceptional circumstances discussed in Foster are present in today’s case so as to prevent the Court from deferring to the trial court’s factual determinations,” they wrote.

When the case is argued on Wednesday, Flowers will be represented by Sheri Lynn Johnson, an acclaimed death-penalty expert who holds an endowed chair at Cornell Law School. She will argue that the trial court should have given more weight to Evans’s track record of racism and misconduct in assessing the latest Batson challenge. Mississippi will be represented by Jason L. Davis, head of criminal litigation for the state attorney general. The state’s brief argues that the black jurors were “struck based on valid race-neutral reasons which were not the product of pretext.” Evans’s seamy history in jury selection, the state argues, is not enough to overcome “deference” to the trial court’s evaluation of his “race-neutral” explanations. Anyway, it asks, where is the Foster v. Chatman–style “smoking gun”? “[T]here are no questionnaires, no juror notes and no district attorney files or any other tangible indicia of discriminatory intent.”

It’s hard to imagine that the Court granted review of this case a second time only to affirm, but this Court last month voted 5–4 not to stay an execution in which a Muslim inmate was denied the presence of an imam, so a majority has recently shown a certain thirst for blood.

Curtis Flowers won’t be at the Court on Wednesday. He will, of course, be in prison, where he has been for the past two decades. His mother died last year, and authorities denied him permission to attend her funeral.

Doug Evans may very well be there. He certainly can spare the time: He is running for a fifth term as district attorney—unopposed.

Evans’s decision to try Curtis Flowers six times, whether the justices refer to it or not, will surely be present in the chamber; so, too, will one of law’s greatest mysteries: Why does one person go to prison while another walks free?