Mississippi state prosecutor Doug Evans worked for more than thirteen years to send Curtis Flowers to jail. After the 1996 murders of four people in Winona, Mississippi, Flowers was tried by Evans a whopping six times until Evans finally got a conviction that stuck in 2010. Flowers, a black man, was an employee at the furniture store where the murders took place. He had no criminal record, and there was no physical evidence tying him to the crime. No witnesses placed him at the scene. So it’s a wonder where Evans’ evidence came from. One thing that is known, however, is that as part of his trial strategy, Evans made sure that black prospective jurors were excluded as much as possible. And now the Supreme Court will consider whether or not Evans’ use of several peremptory challenges to exclude the potential jurors represents a violation of the Constitution.
As Adam Liptak writes in the New York Times, peremptory challenges do not require a reason. They are discretionary and aren’t to be second-guessed. However, Batson v. Kentucky, a case decided by the Supreme Court in 1986, ruled that racial discrimination during jury selection is an exception to this. Lawyers who are accused of it must provide an explanation for their peremptory challenges that is nondiscriminatory.
Upon first glance, it seems that Evans will face an uphill battle in proving that he was not actively and intentionally excluding blacks from the potential juror pool. In the first two trials against Flowers, he struck all ten potential black jurors (there were five for each trial). The first trial resulted in a white jury that produced a conviction and death sentence for Flowers. But the state’s Supreme Court overturned that conviction on the grounds of “numerous instances of prosecutorial misconduct” that were apparently unrelated to jury selection.
In the second trial, the judge ruled that Evans had violated Batson in his reasons for striking one of the jurors. That juror was seated, and that jury (the other 11 jurors were white) also convicted Flowers, sentencing him to death a second time. That conviction was also overturned because of prosecutorial conduct unrelated to jury selection.
This pattern continued through the third and fourth trials. Evans did all he could to strike black jurors and ran out of his peremptory challenges in both cases. The third conviction was also thrown out—this time with the state Supreme Court basing its dismissal on racial discrimination during jury selection. According to the court, Evans’ conduct was the strongest case “we have seen in the context of a Batson challenge.”
The fourth trial deadlocked along racial lines, with five black jurors and seven white jurors, and was declared a mistrial. By that time, Evans had struck 36 black potential jurors in total. The fifth trial also deadlocked and was ruled a mistrial.
So Evans tried again. But this time, he had a new strategy. He accepted one black juror and struck all the rest (five in all). And, apparently, he was much harder on the potential black jurors as well.
Mr. Evans questioned them closely, asking an average of 29 questions each. He asked the 11 white jurors who were eventually seated an average of one question each. It is hard to escape the conclusion that Mr. Evans was looking for race-neutral explanations for striking black jurors.
This time, the jury convicted Flowers and sentenced him to death—a decision that was finally upheld by the state Supreme Court. This is likely the end of the road for Flowers, who has been in jail without release for the last 22 years. And it also highlights a dangerous pattern involving Evans. A recent podcast that examines the Flowers case in detail found that Evans’ office “used peremptory challenges against 50 percent of black potential jurors and against 11 percent of white ones.”
None of this is accidental—not the pattern of excluding black jurors nor the fact that it is occurring routinely in Mississippi. Let’s remember that Mississippi had the highest number of lynchings in America between 1882 and1968, with the majority of victims being black men. Evans has participated in three trials that resulted in overturned convictions due to misconduct and a violation of Batson. Yet he continued to prosecute Flowers without accountability until he got his desired result. Next month, the Supreme Court will hear a case arising from Evans’ tactic of striking black potential jurors so he could get an all-white jury that was almost certain to convict Flowers. The justices will decide if it was legal or not. Sadly, it may turn out to be legal. But it certainly seems unethical.