7th Time's The Charm?: SCOTUS Takes on Prosecutorial Racism

SCOTUS Could Grant A Death Row Inmate a 7th Trial Due to Racial Discrimination

After sitting on death row for 22 years, death row inmate Curtis Flowers may have a 7th chance at freedom. In 2019, finding a truly bipartisan issue is like searching for a needle in a hay-stack. But the Supreme Court showed its bipartisan colors today during oral arguments in Flowers v. Mississippi, where the Justices strongly signaled their support for death row inmate Curtis Flowers. The topic of debate: racial discrimination in jury selection.

Mississippi prosecutor Doug Evans has pursued a quadruple murder conviction for Curtis Flowers six times. Flowers –a black man with no criminal history– insists that his convictions have been a result of racial discrimination. The outcome of his previous trials are as follows:

• Trial 1: Convicted and sentenced to death; MS Supreme Ct. reversed & granted a new trial for intentional misrepresentation of the evidence. Zero Black jurors seated.

• Trial 2: Convicted and sentenced to death; MS Supreme Ct. reversed & granted a new trial for the prosecutor's use of false evidence. Zero Black jurors seated

• Trial 3: Convicted and sentenced to death; MS Supreme Ct. reversed & granted a new trial for racial discrimination during jury selection. Zero Black jurors seated

• Trial 4: Trial ended in a hung jury. At least Two Black jurors seated.

• Trial 5: Trial ended in a hung jury. At least Two Black jurors seated.

• Trail 6: Convicted and sentenced to death. Only one black juror seated. Mississippi Supreme Court affirmed.

 Two years later, SCOTUS granted certiorari on the basis of racial discrimination in jury selection.

"Sixty-one of the 72 jurors in those six trials were white, and none of the four juries that convicted Flowers had more than one African-American." - APM Reports

Supreme Court Justice Kavanaugh was quick to assert that 41 of 42 potential African-American jurors were struck. Following his lead, both Justice Kagan and Justice Alito expressed grave concerns over the prosecutor's seemingly discriminatory history. Specifically, in light of the State Court's ruling in the fourth trial that the prosecutor had violated Batson v. Kentucky by using all 15 of his peremptory strikes to remove African-Americans from the jury. So the question for the Supreme Court today is whether the Mississippi Supreme Court erred in how it applied Batson in the 6th trial. 

What is the "Batson Rule" and Why Hasn't it Worked?

In 1986, the Supreme Court established in Batson v. Kentucky that using a peremptory challenge to remove a potential juror on the basis of race violated the Equal Protection Clause of the Fourteenth Amendment. While the objective is noble, it's execution has been largely ineffective. A court addresses a Batson challenge is three steps: (1) the objecting party must make a prima facie case of racial discrimination in using peremptories, (2) the opposing party then must provide a race-neutral reason for challenged strikes, and (3) the objecting party then has the burden of demonstrating intentional discrimination. Batson's ineffectiveness stems from the low bar that has been set for sufficient "race-neutral reasons." Essentially, so long as the opposing party can point to any reason –good, bad, or ugly– the Batson challenge will fail, absent some damning evidence of intentional discrimination as seen in the 2016 Supreme Court case Foster v. Chapman. Despite Batson's ruling 33 years ago, this problem of discriminatory jury selection still lingers in courts across the country. And now, the Supreme Court will have to address it in the case against Flowers.