Sidebar: When Does Kicking Black People Off Juries Cross a Constitutional Line?


When Does Kicking Black People Off Juries Cross a Constitutional Line?

At the 2010 murder trial of Curtis Flowers, Clemmie Flemming showed the prosecutor Doug Evans where she spotted Mr. Flowers on the morning of four murders in Winona, Miss., in 1996. Mr. Flowers has been tried six times for the crime.CreditCreditTaylor Kuykendall/The Greenwood Commonwealth, via Associated Press

WASHINGTON — Doug Evans, a white state prosecutor in Mississippi, has worked hard to keep black people off the juries that have heard his case against Curtis Flowers, who has been tried six times — yes, six times — for the 1996 murders of four people inside a furniture store in Winona, Miss.

Next month, the Supreme Court will consider whether Mr. Evans’s use of dozens of peremptory challenges — ones that do not require giving a reason — to exclude black prospective jurors violated the Constitution.

Mr. Evans’s track record is extraordinary, and the court’s ruling may be narrow. But the justices could also use the case to put some teeth into Batson v. Kentucky, a 1986 decision that made an exception to the centuries-old rule that peremptory challenges are completely discretionary and cannot be second-guessed.

In the Batson case, the court ruled that racial discrimination in jury selection was different, and it required lawyers accused of it to provide a nondiscriminatory explanation.

But Batson is easily evaded, as even barely competent lawyers are usually capable of offering reasons for striking jurors unrelated to race. Those reasons, the Supreme Court has said, do not have to be “persuasive, or even plausible.”

Here are some reasons courts have found sufficient: the prospective juror had bad posture, was sullen or talkative, was religious or not, lived in a poor part of town or wore a beard.

It takes some work, then, for a prosecutor to lose a Batson challenge. Mr. Evans may be up to the task.

At Mr. Flowers’s first trial, in 1997, Mr. Evans struck all five black prospective jurors. The resulting all-white jury convicted Mr. Flowers and sentenced him to death, but the Mississippi Supreme Court overturned the conviction, citing “numerous instances of prosecutorial misconduct” unrelated to jury selection.

At the second trial, in 1999, Mr. Evans again tried to strike all five black prospective jurors. But the trial judge found that the reasons Mr. Evans had offered for striking one of them were demonstrably false, violating Batson.

That lone black juror was seated along with eleven white jurors, and the jury convicted Mr. Flowers and sentenced him to death. The Mississippi Supreme Court reversed the conviction, again citing prosecutorial misconduct unrelated to jury selection.

At the third trial, in 2004, Mr. Evans used all of his peremptory challenges to strike black prospective jurors. A single black juror made it through after Mr. Evans ran out of challenges. The jury convicted Mr. Flowers and sentenced him to death.

This time, the Mississippi Supreme Court reversed the conviction based on race discrimination during jury selection, saying Mr. Evans’s conduct represented as strong a case “as we have seen in the context of a Batson challenge.”

At the fourth trial, in 2007, Mr. Evans again used all of his peremptory challenges to strike black jurors. But that was not enough to skew the jury, which ended up including seven white and five black jurors. They deadlocked along racial lines, and the judge declared a mistrial.

Mr. Flowers’s lawyers reviewed the bidding in their Supreme Court brief: “The first four times Evans prosecuted Flowers, he struck every black panelist he could, 36 in all.”

Official court records do not show the racial makeup of the jury pool for the fifth trial, in 2008, but the jury itself included nine white and three black people. It, too, deadlocked, and the judge declared another mistrial.

The sixth trial, the one at the center of next month’s Supreme Court argument, took place in 2010. Mr. Evans accepted the first black prospective juror and struck the next five.

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.

The jury, made up of one black and 11 white jurors, convicted Mr. Flowers and sentenced him to death. This time, the Mississippi Supreme Court affirmed the conviction and sentence, accepting Mr. Evans’s explanations for his latest strikes.

Mr. Evans and the office he led appear to have made a practice of excluding a disproportionate number of black people from juries. The excellent podcast “In the Dark,” which has examined many aspects of the Flowers case in gripping detail, undertook a survey of 225 trials handled by his office over 25 years, involving 6,763 potential jurors.

Mr. Evans’s office, the podcast found, used peremptory challenges against 50 percent of black potential jurors and against 11 percent of white ones.

In their Supreme Court brief in the case, Flowers v. Mississippi, No. 17-9572, lawyers for the state focused narrowly on jury selection at Mr. Flowers’s latest trial, asking the court to ignore what had come before. The reasons Mr. Evans gave for striking the most recent jurors, they said, cleared the Supreme Court’s low bar. “A legitimate reason,” they wrote, quoting a Supreme Court decision, was “not a reason that makes sense, but a reason that does not deny equal protection.”

In 1989, when he was a law student at Yale, Justice Brett M. 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 Batson decision: “Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons.”

Justice Kavanaugh himself wrote that Batson’s promise should not be an empty one. “Courts must not allow the spirit of Batson to be diminished,” he wrote, “by misguided allegiance to the peremptory challenge.”

Follow Adam Liptak on Twitter @adamliptak.


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