The outcome of Flowers v. Mississippi may hinge on how justices interpret a few key precedents designed to bring more fairness and equality to jury selection.
When the nine justices of the U.S. Supreme Court decide the fate of Curtis Flowers, they will weigh more than a century of judicial precedents, complex arguments and intricate legal theories. But underneath all that, the case will boil down to two core American ideals: fairness and equality.
At issue is whether Flowers, a black man in Mississippi, had his constitutional rights violated by a white prosecutor. Flowers' side argues that the prosecutor, Doug Evans, intentionally struck black jurors because of their race at Flowers' 2010 trial, his sixth for the 1996 murders of four people in Winona, Mississippi.
Their argument is part of a lineage that can be traced back to the end of the Civil War.
The fight for inclusion on juries — of all races, ethnicities and genders — started with the Fourteenth Amendment, ratified in 1868 as part of Reconstruction to ensure that freed blacks had the same rights as whites. In part, the amendment said, "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." That so-called Equal Protection Clause has been the backbone of every ruling about discrimination in jury selection.
The Supreme Court first took on the topic in 1880, when it cited the Fourteenth Amendment to rule in favor of Taylor Strauder, a former slave who'd been convicted of murder in West Virginia. At the time, West Virginia law stated that only white men could be called for jury service. The Supreme Court found that the state's law discriminated against black would-be jurors and violated the constitutional rights of black defendants."The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected ... to determine — that is, of his neighbors, fellows [and] associates," wrote Justice William Strong in the court's opinion.
The Strauder ruling said that jurors must be summonsed from a racially mixed cross-section of the community. But it stopped short of ordering that African-Americans had to actually be seated on a jury. A defendant has a right to a racially diverse jury pool, Strauder said, but not a diverse jury.
Strauder imposed no constraints on the jury selection process, by which a representative jury pool can get whittled down into a mostly white or all-white jury through the elimination of people — often racial and ethnic minorities — unappealing to one side or the other. The tenets of this ruling are still very much with us.
To this day, defendants don't have a right to a jury that looks like their community. That's why, in 2010 — more than a century after Strauder guaranteed that Curtis Flowers' 156-person pool of qualified jurors would be 42 percent African-American (roughly matching the demographics of the county) — Flowers still ended up with a jury that was 92 percent white.
In the time between Strauder and today, there have been repeated attempts to tear down the barriers to diverse juries. Defendants have asked the Supreme Court to limit how prosecutors can use their peremptory — or discretionary — strikes, to make prosecutors answer for suspected discrimination and to ban overt discrimination. Some of those defendants failed before the high court, but many prevailed, and the Supreme Court rulings that emerged could get Curtis Flowers off death row. Here are the critical cases that came before Flowers v. Mississippi.
Eighty-five years passed after Strauder before the Supreme Court again set precedent on the issue of race in jury selection.
Robert Swain was a 19-year-old black man convicted of raping a white girl in Talladega County, Alabama. On appeal, Swain argued that his Fourteenth Amendment rights had been violated at trial when the prosecutor struck all six black people during jury selection.
Swain lost. The justices, adhering to the Strauder precedent, found that because Swain's jury pool had been drawn from a cross-section of his community and had contained both blacks and whites, his rights hadn't been violated. The ruling held that prosecutors should be granted enormous leeway in how they use their peremptory strikes. If a prosecutor struck all the African-Americans from an otherwise fairly drawn jury pool, as he did in Swain's case, the presumption must be that he did so in order to get a fair jury.
But Swain had pointed out something else in his appeal, outside of the context of his own case, that did give the court pause. The prosecutor in Swain's case had been in office for 12 years and, for all that time, not a single African-American had been selected for a jury. Talladega County at the time was roughly 26 percent black. Since this hadn't been the main thrust of Swain's argument, the high court didn't think he'd given enough proof of deliberate bias. But, the justices wrote, it was conceivable that with an enormous amount of evidence of discrimination, a prosecutor could be asked to justify his strikes.
The Swain ruling offered a sliver of hope to a defendant who thought his Fourteenth Amendment rights had been violated by a prosecutor who purposefully used his peremptory strikes to discriminate based on race. But it set an extraordinarily high burden of proof: For a defendant to prevail, he'd have to show evidence that a prosecutor had a pattern, over time and in many different cases, of discriminating against black jurors. It would be 20 years before the Supreme Court took the Swain precedent and turned it into something that could be useful for most defendants.
James Batson had been tried for burglary in a Louisville court. His attorney had objected after the prosecutor struck all four black prospective jurors and an all-white jury was seated. The judge overruled the objection, saying that both sides can "strike anybody they want to."
Batson appealed to the Supreme Court. Because of the precedent set in Swain, it wasn't clear he had a path to victory on a Fourteenth Amendment claim. In order to meet the Swain standard that his equal protection rights had been violated, Batson would have to show that the prosecutor in his case had discriminated on the basis of race in other cases over the years. Batson didn't have that type of proof, but he could show that in his trial alone, the prosecutor had engaged in a pattern of discrimination.
Remarkably, Batson prevailed, with the court finding 7 to 2 in his favor. The ruling in Batson set forth a seminal framework for dealing with race discrimination in jury selection. It remains the law of the land today; it's the reason Curtis Flowers' case has made it this far.
Justice Lewis Powell, a Nixon appointee, wrote the majority opinion in the case. "Peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate,'" he said, quoting an earlier ruling on race. Batson found that Swain had created "a crippling burden of proof" and lowered that burden by ruling that "a defendant may establish a ... case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial."
Moving forward, prosecutors could no longer use their strikes with unlimited discretion. If a defendant could show that a prosecutor seemed to be striking jurors of his race, because of their race, then a prosecutor could be forced to explain himself.
The ruling provided basic guidelines for how a challenge under Batson should unfold in court:
- First, a defendant must show that a prosecutor looks to be striking jurors because of their race.
- Second, the prosecutor has to supply a reason, unrelated to race, for why he or she struck each of the prospective jurors.
- Third, a judge looks at the prosecutor's reasons and decides if they are legitimate reasons or simply pretexts — i.e., covers — for discrimination.
Though Batson was intended to be more straightforward than Swain, it hasn't been easy to implement. It's tricky, it turns out, for a judge to determine whether a prosecutor's stated reason is true or whether the prosecutor intended to discriminate. Justice Thurgood Marshall anticipated this difficulty when he voted with the majority on Batson. "The decision today will not end the racial discrimination that peremptories inject into the jury selection process," he wrote. "That goal can be accomplished only by eliminating peremptory challenges entirely."
Marshall's comments were a major departure from the Swain majority of 20 years earlier. Their opinion had contained a long and nostalgic defense of the peremptory strike, which the United States inherited from English common law as a way of quickly removing jurors who appeared to be on the "extremes of partiality." The Brits had thought of it as benefitting the accused, "a provision full of that tenderness and humanity to prisoners." But two years after Batson, the British Parliament did just what Marshall had proposed: abolished peremptory strikes altogether because they made it too easy to stack a jury.
Following Batson, the Supreme Court handed down several other rulings that expanded the definition of who Batson protected. In 1991, the court found in favor of Larry Joe Powers, a white man who had been convicted of murder by a jury from which the prosecutor had struck seven black people. The court ruled that Powers' race was irrelevant and that he could appeal as a stand-in for the excluded black jurors, whose Fourteenth Amendment rights had also been violated. Also in 1991, Hernandez v. New York signaled that it was just as unconstitutional to discriminate on the basis of ethnicity as it was race. Then in 1994, J.E.B. v. Alabama added gender to the mix.
But it was still rare for a defendant to succeed on a Batson challenge if a prosecutor denied prejudice. A ruling 20 years later would attempt to change that.
Thomas Miller-El had been sentenced to death for killing one man and injuring another during an armed robbery at a Texas Holiday Inn. He was tried in a Dallas courthouse in early 1986, just months before the landmark ruling in Batson. At the time, the high burden of proof set forth in Swain was still the precedent for proving race discrimination.
Nevertheless, Miller-El's trial attorneys had a strong case: They'd gotten a copy of a jury selection manual written by Dallas prosecutor Jon Sparling in the 1960s, which was still in circulation at the Dallas County District Attorney's Office. The Sparling manual urged prosecutors to avoid selecting jurors from all sorts of demographic groups:
At Miller-El's trial, the state had struck 91 percent of qualified black jurors, but only 12 percent of everyone else. Prosecutors had questioned black prospective jurors more aggressively than non-black jurors and in ways that seemed to bait them into disqualifying themselves. They'd used a tool, unique to Texas, called the jury shuffle, which allows lawyers to randomly shake up the order of people in the jury pool. Three times prosecutors requested a shuffle when there were mostly African-Americans near the top of the list for questioning.
After the Batson ruling came down, the court that had just tried and convicted Miller-El held a retroactive Batson hearing. Prosecutors were ordered to come back before the judge and provide race-neutral reasons for the African-Americans they'd struck during jury selection. Many of the explanations they gave were equally true of white jurors who'd been allowed to sit on the jury, but the judge ruled that they were legal because, on their face, they had nothing to do with race. Nearly 20 years and eight appeals rulings later, the disparate treatment of black and white jurors who were remarkably similar would be the crux of SCOTUS' justification for overturning Miller-El's conviction.
In its 2005 ruling in Miller-El, the court dug deeply into the prosecution's strikes of two particular prospective jurors: Billy Jean Fields and Joe Warren. Prosecutors had said they'd eliminated Warren because, improbably, they couldn't be sure he was in favor of capital punishment after he suggested that "the death penalty was an easy way out, that [guilty people] should be made to suffer more." SCOTUS found that there were white jurors who'd been as ambivalent about the death penalty as Warren, but had been allowed to serve. And the court found that prosecutors had axed Fields for a comment that he'd never quite said.
"A Batson challenge does not call for a mere exercise in thinking up any rational basis," wrote Justice David Souter in the court's majority opinion. The bottom line, he wrote, was that the prosecutor's stated reasons either couldn't be genuine, as in case of Fields, or were unlikely to be, as in the case of Warren. "It blinks reality to deny that the State struck Fields and Warren ... because they were black. The strikes correlate with no fact as well as they correlate with race," Souter wrote.
The Miller-El ruling urged judges to perform a more rigorous analysis of prosecutors' stated reasons for strikes. A reason provided by a prosecutor shouldn't just be race-neutral. It should be true.
But that wasn't all. The justices ruled that prosecutors' credibility should be judged on all evidence of their likelihood to purposefully discriminate, not just on what they said or did at trial. A written guideline like the Sparling manual could and should undercut a prosecutor's credibility, the court found.
"When this evidence ... is viewed cumulatively, its direction is too powerful to conclude anything but discrimination," Justice Souter wrote. "If anything more is needed for an undeniable explanation of what was going on, history supplies it."
Not everyone on the court agreed with Souter's broad view. Three justices — Rehnquist, Scalia and Thomas — weren't convinced that things like the Sparling manual proved that Miller-El's rights had been violated. "None of this generalized evidence came close to demonstrating that the State's explanations were pretextual in Miller-El's particular trial," wrote Justice Clarence Thomas in a dissenting opinion. Thomas, of course, still sits on the court today.
The court has since used the Miller-El standard twice to overturn capital murder verdicts. In 2008's Snyder v. Louisiana, the Supreme Court picked apart a single peremptory strike. The court looked at the prosecutor's stated reason for removing a black prospective juror and found it implausible. On that basis alone, the court threw out Snyder's murder conviction, with conservative Justice Samuel Alito writing the majority opinion.
And in 2016, in a case that was decided while Curtis Flowers' case was already on appeal, the Supreme Court reversed the conviction of Timothy Foster. Foster had been sentenced to death in 1987 by an all-white jury. The prosecution had struck all four African-Americans during jury selection and the defense hadn't been able to make a successful Batson claim.
Two decades later, Foster's new lawyer, Stephen Bright, filed a public records request with the local district attorney's office to ask for the 1987 notes from jury selection. What Bright received in response looked to him like evidence of a concerted and richly documented effort to discriminate against black jurors. SCOTUS agreed.
In the majority opinion in Foster, Chief Justice John Roberts plumbed through the troubling aspects of the prosecution's notes: The names of all the black prospective jurors had been highlighted in green; they were labeled as B#1, B#2, etc.; a "no" notation appeared next to all of their names; a section about the Church of Christ said "NO. No Black Church"; on the questionnaires filled out by the black prospective jurors, the place where they'd listed their race had been circled; finally, a note written by an investigator said, "If it comes down to having to pick one of the black jurors, [this one] might be okay."
As in Miller-El and Snyder, the Supreme Court's finding of purposeful discrimination turned heavily on the strikes of particular jurors. One had been struck for being too young — 34 — and divorced, but the court found that "four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve."
The other, Eddie Hood, had been struck, according to prosecutors, because his son had been convicted of "basically the same thing that this defendant is charged with." This wasn't even remotely true. The defendant, Foster, stood accused of the brutal sexual assault and murder of an elderly woman. Hood's son had, five years earlier, stolen the hub caps off a car parked outside of a mall.
Conservative and liberal justices alike joined in ruling in favor of Foster. Clarence Thomas was the lone dissenter. "The Constitution," wrote Chief Justice Roberts, "forbids striking even a single prospective juror for a discriminatory purpose."
Curtis Flowers' lawyers have relied heavily on the logic of Miller-El and Foster in their appeal. They've asked the high court to look carefully at each of the five African-Americans struck by District Attorney Doug Evans in Flowers' sixth trial. They've argued that Evans questioned them more aggressively and struck them for reasons that were equally true of whites who were allowed to serve. They've urged the court to examine Evans' race-neutral explanations with a heightened level of scrutiny, given his history.
That history includes two court rulings that Evans violated Batson in Flowers' second and third trials. Flowers' attorneys also point out that, with just one exception, Evans struck every black juror he possibly could in the four trials that ended in a conviction and death sentence. In those trials, the juries were composed of either 11 or 12 whites.
Evans' history also includes his office's record, during his 26-year tenure at its helm, of striking black prospective jurors at 4.4 times the rate it struck white prospective jurors. The analysis that led to that finding was performed by APM Reports for Season 2 of In the Dark, and was cited by both the Magnolia Bar Association and the NAACP Legal Defense Fund in friend-of-the-court briefs filed in support of Flowers' appeal. It's not clear how much weight, if any, the justices will give to the analysis.
In their petitioner's brief to the court, Flowers' lawyers argue that the proof of Evans' intent to discriminate in Flowers' case is even stronger than it was in Thomas Miller-El's 1986 trial — Sparling manual, office policy and all:
"Here's a guy who, twice now, has engaged in what appears to be pretty overt discrimination and has denied it in a court of law, as an officer of the court, and twice so far has been found to be not truthful," Jim Marcus, a University of Texas at Austin law professor who represented Miller-El in his appeal, said of Evans. "That's the smoking gun."
Stephen Bright, the Yale Law School professor who successfully argued both Snyder and Foster before the Supreme Court, has been following Flowers' appeal closely. He also thinks Flowers' chances with the Supreme Court are good.
"You just don't have many cases where there have been six trials, and all through those six trials the prosecution has tried and persisted in trying to exclude African-Americans from service," Bright said. "If you compare Flowers' case to some of the others, it's about as overwhelming a case as is possible."