In 2010, Curtis Flowers stood trial for the 1996 murders of four people in a Mississippi furniture store. The local district attorney, Doug Evans, who is white, struck five of the six potential black jurors in the jury pool, resulting in a jury with just one black member. Flowers was convicted and sentenced to death. Today the Supreme Court threw out Flowers’ conviction, with seven justices agreeing that the jury selection in his case violated the Constitution.

The court’s opinion, written by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan, depicted Flowers’ case as one that broke “no new legal ground.” Instead, the court characterized the ruling as a fairly straightforward application of the Supreme Court’s 1986 ruling in Batson v. Kentucky, holding that prosecutors cannot discriminate based on race when using their peremptory strikes, which allow them to remove jurors without providing a reason, to what they described as the “extraordinary facts” of Flowers’ case.

Kavanaugh’s opinion cited four facts that, when considered together, warrant reversal of Flowers’ conviction. First, Kavanaugh looked back at Flowers’ first four trials and observed that the “numbers speak loudly”: In the first four trials, Evans “tried to strike all 36” black prospective jurors. “The State’s relentless, determined effort,” Kavanaugh concluded, “to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” Such a history, Kavanaugh stressed, cannot be ignored when considering Evans’ intent going into Flowers’ sixth trial.

At Flowers’ sixth trial, Kavanaugh continued, Evans struck five of the six prospective black jurors. Kavanaugh acknowledged that Evans allowed one black juror to sit on Flowers’ jury, but he noted that in a 2005 case the Supreme Court suggested that a Texas prosecutor might have accepted a black juror to camouflage a general opposition to seating black jurors. “The overall record of this case,” Kavanaugh wrote, “suggests that the same tactic may have been employed here,” creating more evidence that Evans intended to discriminate against black jurors.

Before striking the five prospective black jurors, the prosecution asked them an average of 29 questions, compared with just one question for each of the white jurors who was seated on the jury. “One can slice and dice the statistics and come up with all sorts of ways to compare” the prosecution’s questioning of black and white jurors, Kavanaugh acknowledged. “But any meaningful comparison yields the same basic assessment: The State spent far more time questioning the black prospective jurors than the accepted white jurors.” Kavanaugh conceded that prosecutors can ask prospective jurors questions to “investigate the relationships of jurors to the victims, potential witnesses, and the like.” But the Supreme Court’s cases have explained that prosecutors might ask a lot of questions to find answers that will give them excuses that do not rely on race to strike black jurors; if they don’t ask white jurors the same questions, prosecutors can “avoid being accused of treating black and white jurors differently.” So although asking black jurors more questions than white jurors does not, standing alone, violate the Constitution, it can “supply a clue that the prosecutor may have been seeking to paper the record and disguise a discriminatory intent.”

Along these lines, Kavanaugh wrote, the decision to strike Carolyn Wright, a prospective black juror, was largely motivated by an intent to discriminate. The prosecution said it struck Wright because “she knew several defense witnesses and worked at Wal-Mart where Flowers’ father also worked.” But, Kavanaugh pointed out, prosecutors did not ask the same kinds of detailed follow-up questions of three prospective white jurors with connections to individuals involved in the case. At least in this case, in light of the “whole picture,” the failure to do so “requires skepticism”: “We cannot just look away,” Kavanaugh emphasized.

Alito filed a concurring opinion in which he emphasized that Flowers’ case was “highly unusual.” “Indeed,” he suggested, “it is likely one of a kind.” The murders giving rise to the case took place in a small town where both at least one of the victims and the defendant were well known, and Flowers was repeatedly tried by the same prosecutor in proceedings marked by racial discrimination and misconduct. By the time Flowers’ sixth trial rolled around, Alito observed, it would be difficult for the trial judge to determine why the prosecutor was striking a potential juror.

In a different case, Alito contended, particularly one in a larger town, a prosecutor’s decision to strike a juror would likely pass muster. “But this is not an ordinary case,” Alito continued, “and the jury selection process cannot be analyzed as if it were.” As he had at the oral argument, Alito indicated that, in light of the history of Flowers’ case, it probably would have been better for another prosecutor to have tried Flowers for the sixth time. “Were it not for the unique combinations of circumstances present here,” Alito wrote, “I would have no trouble affirming the decision of the Supreme Court of Mississippi.” “But viewing the totality of the circumstances present here, I agree with the Court that” Flowers’ death sentence “cannot stand.”

Justice Clarence Thomas dissented, in an opinion that was joined in part by Justice Neil Gorsuch. Thomas argued that the Supreme Court should never have agreed to review Flowers’ case in the first place. He alleged that the case didn’t meet the justices’ traditional criteria for granting review, and he seemed to suggest that the justices might have taken up the case because it hailed from the south – which, quoting an opinion from Justice Antonin Scalia, he described as a “familiar object[] of the Court’s scorn” – or because of the media attention that the case had garnered. But in any event, Thomas continued, prosecutors had good reasons – that had nothing to do with race – for striking the five black jurors at Flowers’ final trial. And to the extent that the court relied on the prosecution’s conduct at Flowers’ earlier trials, Thomas added, that story “might make for an entertaining melodrama, but it has no basis in the record.”

In the part of his dissent that Gorsuch did not join, Thomas criticized the court’s decision in Batson as “suspect when it was announced” and something about which he is “even less confident now.” Thomas reasoned that Batson gives a “windfall to a convicted criminal” who has not actually been injured – because he was not the juror who was the victim of discrimination – and therefore should not be able to challenge the juror’s exclusion. More broadly, Thomas complained, the system of peremptory challenges rests on the idea that a lawyer should be able to remove a potential juror from the jury pool, without providing an explanation, based on her gut feeling that the potential juror would not be sympathetic to her client’s case. By focusing on an individual juror’s rights, and requiring lawyers to provide a reason for their decision to strike a juror, Batson “is wholly contrary to the rationale underlying peremptory challenges,” Thomas concluded.

Thomas finished with blistering words for his colleagues in the majority, writing that if the court’s “opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again. Otherwise the opinion distorts our legal standards, ignores the record, and reflects utter disrespect for the careful analysis of the Mississippi courts. Any competent prosecutor would have exercised the same strikes as the State did in this trial.” And, Thomas added, “although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families.”

In a statement issued shortly after the court’s opinion was released, Sheri Lynn Johnson – the Cornell law professor who argued on Flowers’ behalf at the Supreme Court – applauded the ruling and urged Evans not to try Flowers again. She described the fact that Flowers has already been tried six times and spent over 20 years on death row as a “travesty” and contended that a “seventh trial would be unprecedented, and completely unwarranted given both the flimsiness of the evidence against him and the long trail of misconduct that has kept him incarcerated all these years.”

Mississippi Attorney General Jim Hood also issued a statement that left open the possibility that Evans could try Flowers again. Hood indicated that when the case returns to Mississippi, “it will be the duty of the district attorney” – Evans – “to re-evaluate the case. If the decision is to retry the case,” Hood said, he is “confident the Court’s guidance will be followed.”

This post was originally published at Howe on the Court.

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