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What’s Past is Prologue: The Importance of History in Flowers v. Mississippi

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10 Jul 2019
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July 10, 2019

Flowers v. Mississippi, 588 U.S. ___ (2019) (Kavanaugh, J.).
Response by Robin M. Maher
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

What’s Past is Prologue: The Importance of History in Flowers v. Mississippi

Few methods employed for the purpose of excluding African Americans from jury service have been as enduring as the racially discriminatory use of peremptory challenges. Although the Civil Rights Act of 1875 outlawed race-based discrimination in jury service,1 and Supreme Court decisions have repeatedly found the practice unconstitutional,2 studies show that discriminatory jury practices are widespread and generally unchecked in many Southern jurisdictions.3 This is largely because proving discrimination requires compelling evidence of a prosecutor’s racially discriminatory motive—evidence that is as difficult for defendants to discover as it is easy for prosecutors to conceal. Flowers v. Mississippi,4 decided on June 21, 2019, asked whether a white Mississippi prosecutor had illegally used his peremptory strikes against qualified African Americans in a case with an African American defendant, and whether his history of discriminatory conduct could be considered evidence of his motive and credibility. The answer to both questions, by a vote of seven to two, was yes.

Curtis Giovanni Flowers, an African American man accused of murdering four furniture store employees in rural Mississippi, repeatedly faced all white or nearly all white juries5 while on trial for his life. Flowers was prosecuted for capital murder six times6 by the same prosecutor because twice his trial ended in a mistrial, and three times the prosecutor, Doug Evans, engaged in serious misconduct.7 In two of those trials, Evans was found to have violated Batson v. Kentucky, the case that sets forth the test for proving illegal discrimination in jury selection.8 In total, Evans struck 41 out of 42 African Americans from the jury.9

The case reached the Supreme Court after Flowers’ sixth trial, where Evans used his peremptory strikes to exclude five of the six qualified African Americans from the jury. After his “race neutral” reasons for the strikes were accepted by the Mississippi Supreme Court on direct appeal,10 Flowers sought review at the Supreme Court, invoking Evans’ “history of adjudicated purposeful discrimination” as reason to doubt his credibility.11 The Supreme Court granted certiorari and remanded the case to the Mississippi Supreme Court for further consideration in light of its recent decision in Foster v. Chatman, a case in which it had found a Batson violation.12 But a sharply divided Mississippi Supreme Court again affirmed Flowers’ conviction and death sentence. The majority emphasized deference to the trial court and rejected the suggestion that Evans’ “prior adjudications of the violation of Batson” undermined his race neutral reasons in the sixth trial.13 Flowers again sought review at the Supreme Court, and this time the Court agreed to hear arguments in the case. It granted certiorari to consider “[w]hether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky”14 and—in a decision that surprised few after oral arguments were heard—held that the lower court got it wrong.

Justice Kavanaugh, who had previously written about Batson as a law student, wrote the majority decision. In granting relief to Flowers, he emphasized that the Court’s decision broke no new legal ground. “We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case,” he wrote, agreeing with Flowers’ appellate counsel that existing precedent compelled a reversal of his conviction and death sentence.15

History, the Court confirmed with this decision, matters. “The State’s actions in the first four trials necessarily inform our assessment of the State’s intent going into Flowers’ sixth trial. We cannot ignore that history. We cannot take that history out of the case.”16

The Court had previously held that courts must evaluate Batson claims in light of “all of the circumstances that bear upon the issue of racial animosity.”17 Here, the Court identified four critical facts:

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.18

The Court noted that:

[w]e need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent.19

Striking Wright, the Court said, might have been permissible, if viewed in a different context, but not in light of the “whole picture”:

As we see it, the overall context here requires skepticism of the State’s strike of Carolyn Wright. We must examine the Wright strike in light of the history of the State’s use of peremptory strikes in the prior trials, the State’s decision to strike five out of six black prospective jurors at Flowers’ sixth trial, and the State’s vastly disparate questioning of black and white prospective jurors during jury selection at the sixth trial.20

The Court compared the reasons given by the State for striking Wright to the circumstances of the jurors who were not struck and concluded that the State’s “pattern of factually inaccurate statements” was evidence of discriminatory intent.21 Since the Constitution “forbids striking even a single prospective juror for a discriminatory purpose,” Flowers is now entitled to a new trial.22

Justice Alito filed a concurring opinion, noting that were it not for the “unique combinations of circumstances” of the case, he would have affirmed the decision of the Mississippi Supreme Court, which had “conscientiously applied the legal standards applicable in less unusual cases.”23 But given the totality of the circumstances in the case, he said, he agreed with the majority that Flowers’ “conviction cannot stand.”24

Justice Thomas’ strongly worded dissent was joined in part by Justice Gorsuch. Justice Thomas dismissed the historical record relied upon by the majority as “entertaining melodrama” which had “no basis in the record.”25 “Today’s decision distorts the record of this case, eviscerates our standard of review, and vacates four murder convictions because the State struck a juror who would have been stricken by any competent attorney,” he wrote.26 After a painstaking analysis of the juror evidence, he rejected the majority’s holding that there was any Batson violation in the sixth trial (finding “no evidence whatsoever of purposeful race discrimination”).27 He went on to opine that Batson was wrongly decided, a view that Justice Gorsuch did not share. Justice Thomas asserted that defendants like Flowers have no standing to assert the equal protection claim of a third party (the excluded juror) and suffer no legally cognizable injury. A vacated conviction, therefore, is an unwarranted “windfall.”28 The recognition of equal protection principles’ application to individual peremptory strikes, he said, and Batson’s focus on an individual juror’s rights, is inconsistent with the rationale underlying peremptory strikes.29 His complaints about Batson include the inaccurate declaration that successful claims require that “a duly convicted criminal go free.”30 In fact, Curtis Flowers will only “go free” if the state of Mississippi recognizes the weakness of the evidence against him31 and the injustice he has already suffered and declines to prosecute him for a seventh time.

Evans’ twenty-three-year history prosecuting Flowers demonstrated a remarkable and calculated devotion to the grotesque spectacle of all white juries and a flagrant disregard for the law. But his arrogance should not be surprising. Batson claims are notoriously difficult to win because prosecutors easily hide their intent to discriminate by satisfying the trial court that their decision is race neutral. Justice Marshall predicted that Batson would be inadequate for the task.32 But even when courts find a Batson violation, few prosecutors face personal or professional consequences.33 Evans, despite his clear ethical violations, was never publicly reprimanded or sanctioned by the Mississippi State Bar.

This case is about the conduct of a single prosecutor—an elected official who abused his discretion by prosecuting Curtis Flowers an astonishing six times in an effort to secure his death sentence, who engaged in a “relentless, determined effort to rid the jury of black individuals” “as if Batson had never been decided,”34 who used unethical tactics to mislead the court in his efforts to secure all white or nearly all white juries, and who repeatedly denied Curtis Flowers the right to a fair trial and 41 African Americans the right to serve on a jury. Yet the Supreme Court never named Doug Evans in its opinion—not even once. Why not? Naming bad actors like Evans is one of the best ways to curb and deter the continued abuses of prosecutors who flout the law and their ethical responsibilities.35

Evans is an elected official, a prosecutor who made deliberate choices to repeatedly violate the law he was sworn to uphold. It is inconceivable that he will now be given another opportunity to prosecute Flowers in an unprecedented seventh trial. Yet this is exactly what the Mississippi Attorney General’s Office says will happen and what Doug Evans, running unopposed for re-election in November, will decide.36

The decision in Flowers is an acknowledgement of our racist history—and a reminder that our present is not that different. Batson and its progeny have not ended racial discrimination in jury selection. The discrimination in this case can be found in hundreds (if not thousands) of criminal cases, too few of which will receive the attention or remedy that this case did.37

It’s also sobering to realize just how many in the Mississippi criminal justice system were complicit in the death sentences Curtis Flowers received. Over six trials and more than two decades, how many lawyers and judges in the Mississippi legal system looked the other way, despite their ethical duty to report Evans’ misconduct?38 The arrogance of individual prosecutors like Evans is deeply troubling, but tolerance and deference are what create entrenched cultures of impunity. The decision in Flowers is very welcome, but Supreme Court decisions will not end racial jury discrimination. Meaningful and lasting change will require committed judges to enforce the law, zealous defense attorneys to protect their clients’ rights, and conscientious, ethical prosecutors to care as much about fairness and justice as they do about winning.

Robin M. Maher trains and supports federal habeas lawyers working in Texas, provides training to defense lawyers and judges in Pakistan, and is a professorial lecturer in law at the George Washington Law School. For thirteen years she was the Director of the American Bar Association Death Penalty Representation Project where she led the effort that resulted in the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. She is a frequent author and speaker in the US and internationally on the importance of ensuring high quality legal representation for all those facing a possible death sentence.

  1. See Civil Rights Act of 1875, 18 U.S.C. § 243 (2018).
  2. See Foster v. Chatman, 136 S.Ct. 1737 (2016); Snyder v. Louisiana, 552 U.S. 472 (2008); Miller-El v. Dretke, 545 U.S. 231 (2005); Batson v. Kentucky, 476 U.S. 79 (1986); Strauder v. West Virginia, 100 U.S. 303 (1879).

    Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges ‘for any reason at all, as long as that reason is related to his view concerning the outcome’ of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.

    Batson, 476 U.S. at 89 (citations omitted).

  3. See Brief of Amicus Curiae NAACP Legal Def. & Educ. Fund, Inc. in Support of Petitioner at 13–16, Flowers v. Mississippi, No. 17-9572 (U.S. June 21, 2019); Gilad Edelman, Why is it So Easy for Prosecutors to Strike Black Jurors?, The New Yorker (June 5, 2015), https://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-prosecutors-to-strike-African American-jurors; Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 14 (Aug. 2010), https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf.
  4. No. 17-9572 (U.S. June 21, 2019).
  5. Historically, all white juries have been used both to exonerate white defendants accused of racially motivated crimes against people of color and to convict innocent people of color of crimes they did not commit. See Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 868 (2017); Brief of Former Justice Dep’t. Officials as Amicus Curiae in Support of Petitioner at 7, Flowers, No. 17-9572 (U.S. June 21, 2019).
  6. The first three trials each ended in convictions and death sentences later reversed by the Mississippi Supreme Court. See Flowers v. State, 773 So. 2d 309 (Miss. 2000) (Flowers I); Flowers v. State, 842 So. 2d 531 (Miss. 2003) (Flowers II); Flowers v. State, 947 So. 2d 910 (Miss. 2007) (Flowers III). The fourth and fifth trials resulted in mistrials when the jury was “unable to reach a unanimous verdict during the culpability phase.” Flowers v. State, 240 So. 3d 1082, 1093 (Miss. 2017), rev’d and remanded, No. 17-9572 (U.S. June 21, 2019).
  7. Evans was twice found to have violated Batson–once by the trial court, which found his race neutral explanation to be a pretext for discrimination, and once by the Mississippi Supreme Court, which characterized the evidence as “as strong a prima facie case of racial discrimination as [it] ha[d] ever seen.” Flowers III, 947 So.2d at 935; see Petitioner’s Brief at 9, Flowers, No. 17-9572 (U.S. June 21, 2019). The Mississippi Supreme Court also found that Evans acted in “bad faith,” stated an “outright fabrication,” misrepresented evidence, falsely impeached witnesses, and engaged in other troubling behavior. Petitioner’s Brief, supra, at 5, 9–10.
  8. Batson established a three-step procedure for detecting racial motivation in peremptory strikes: first the defendant must establish a prima facie case of racial discrimination; second, the prosecutor may offer race neutral reasons for the strike(s); and third, the court must determine whether the defendant has met his burden of proving purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 96–98 (1986).
  9. Flowers, slip op. at 2, 31. The majority concluded that Evans used his peremptory strikes in the first four trials and in the sixth trial to exclude African Americans; there is a lack of race data for the jurors Evans struck in the fifth trial, so the Court drew no conclusions for that proceeding. Id. at 4–7; see Petitioner’s Brief, supra note 7, at 13.
  10. Flowers v. State, 158 So. 3d 1009 (Miss. 2014).
  11. Petitioner’s Brief, supra note 7, at 22.
  12. Flowers v. Mississippi, 136 S.Ct. 2157 (2016); Foster v. Chatman, 136 S.Ct. 1737 (2016).
  13. Flowers v. State, 240 So.3d 1082, 1124 (Miss. 2017).
  14. Docket for No. 17-9572 Capital Case, U.S. Supreme Court, https://www.supremecourt.gov/search.aspxfilename=/docket/docketfiles/html/public/17-9572.html; see U.S. Supreme Court, Granted & Noted List: October Term 2018 Cases for Argument 8 (June 26, 2019),
    https://www.supremecourt.gov/orders/18grantednotedlist.pdf.
  15. Flowers, slip op. at 3; Petitioner’s Brief, supra note 7, at 53–60.
  16. Flowers, slip op. at 22.
  17. Snyder v. Louisiana, 552 U.S. 472, 478 (2008).
  18. Flowers, slip op. at 2–3 (citations omitted).
  19. Id. at 31 (emphasis added).
  20. Id. at 30.
  21. Id. at 26–29.
  22. See Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016).
  23. Flowers, slip op. at 2 (Alito, J., concurring).
  24. Id.
  25. Id. at 27 (Thomas, J., dissenting).
  26. Id. at 3.
  27. Id. at 6.
  28. Id. at 33.
  29. Id. at 40–41.
  30. Id. at 33.
  31. The facts are remarkable and troubling, as are the results of a recent investigation; they are detailed in a popular podcast. See In the Dark, Season 2, APM Reports (May 1, 2018), https://www.apmreports.org/in-the-dark/season-two-audio.
  32. Batson v. Kentucky, 476 U.S. 79, 105 (1986) (Marshall, J., concurring). Justice Marshall concluded that the only way to eliminate discrimination was to eliminate the use of peremptory challenges from the criminal justice system entirely. Id. at 107; see also Flowers, slip op. at 41.
  33. See, e.g., Thomas P. Sullivan & Maurice Possley, The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform, 105 J. Crim. L. & Criminology 881 (2015).
  34. Flowers, slip op. at 21–22.
  35. See supra note 33; see also Lara Bazelon, For Shame: The Public Humiliation of Prosecutors by Judges to Correct Wrongful Convictions, 29 Geo. J. Legal Ethics 305 (2016); Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, 42 U.C. Davis L. Rev. 1059 (2009).
  36. See The Associated Press, Prosecutor Could Decide on Seventh Trial in Mississippi Case, KNX10.70 News Radio (June 22, 2019), https://knx1070.radio.com/articles/ap-news/prosecutor-could-decide-seventh-trial-mississippi-case.
  37. For example, the Supreme Court had held three petitions for certiorari with high profile Batson claims while Flowers was being considered; all three were denied certiorari after the decision was announced. See Chamberlin v. Hall, No. 18-6286 (U.S. June 28, 2019); Rogers v. Ford, No. 18-7594 (U.S. June 28, 2019); Smith v. California, No. 18-7094 (U.S. June 28, 2019).
  38. See Model Rules of Prof’l Conduct R. 8.3 (2018).

Recommended Citation
Robin M. Maher, Response, What’s Past is Prologue: The Importance of History in Flowers v. Mississippi, Geo. Wash. L. Rev. On the Docket (July 10, 2019),  https://www.gwlr.org/whats-past-is-prologue-the-importance-of-history-in-flowers-v-mississippi/.

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