The fate of Curtis Flowers may well hinge on how the U.S. Supreme Court views the removal of a handful of African-Americans from jury selection at his 2010 trial.
The key issue is whether the prosecutor in the case, Doug Evans, violated Flowers' rights by dismissing black jurors because of their race, which is unconstitutional.
In that 2010 trial — the sixth time Flowers was tried for the murders of four people at the Tardy Furniture store in Winona, Mississippi, in 1996 — 156 people were called for jury selection. A hundred jurors were removed for cause, meaning they were dismissed because they'd indicated that, for various reasons, they couldn't judge the case fairly.
Of the 56 who remained, only 15 were black. What came next was the second stage of jury selection, in which lawyers go down the jury list in order, taking turns striking or accepting people until the jury is filled.
As the lawyers went down the list, Evans faced six African-Americans who he could have placed on the jury. Instead, he used his peremptory strikes to remove five of them. That resulted in a jury of 11 whites and one African-American who later convicted Flowers and sentenced him to death.
The removal of those five African-Americans now lies at the heart of Flowers' argument to the Supreme Court that his conviction should be overturned. His lawyers argue that Evans dismissed those five jurors because of their race. That can be very difficult to prove. How do you show someone's intent? And, as lawyers for the state of Mississippi point out in their briefs, Evans offered multiple reasons for dismissing each juror that were unrelated to race.
This is where Evans' history of removing jurors may be critical to Flowers' case. In all six trials, Evans used most of his jury strikes against African-Americans, and the juries that were nearly all white gave Evans the result he wanted: In the four trials that ended in convictions of Flowers, the juries had at least 11 whites; in the two trials in which the juries had more than one African-American, the trial ended in a hung jury. And then there are the two previous Flowers trials in which courts ruled that Evans used race in jury selection.
What follows is an examination of the five black jurors Evans struck and the arguments the prosecution and defense presented about them during jury selection.
The high court will evaluate these strikes in light of its decisions in the Batson and Miller-El cases. In other recent cases, the Supreme Court has ruled that if even one juror was struck unconstitutionally, then the conviction must be overturned. That means if the justices find that any one of these people were kept off the jury because of their race, then Flowers' conviction will be reversed.
At trial, Doug Evans used his first strike to remove Carolyn Wright, a 44-year-old woman who once worked at Wal-Mart with Curtis' father, Archie Flowers.
When asked to explain his strike against Wright, Evans listed three reasons:
Evans also said Wright had her wages garnished after being sued by Tardy Furniture over an unpaid bill. This, he argued, prevented her from being an impartial juror.
The defense at trial pointed out that a white juror, Pamela Chesteen, whom the state had already accepted for the jury, was similar to Wright. Chesteen worked at a bank that Archie Flowers frequented and had said that she knew Archie from work. The defense argued that because both Wright and Chesteen knew Archie from work but only Wright was struck for it, Evans must have struck Wright because of her race, in violation of Batson.
In their petition to the U.S. Supreme Court, Flowers' lawyers argue that because Evans made misstatements about Wright's wages and accepted similar white jurors, the court should conclude that Evans was attempting to mask discrimination, if analyzed in light of Evans' history.
Lawyers for the state of Mississippi argue in their petition that Pamala Chesteen is fundamentally different than Carolyn Wright. Chesteen worked at Archie Flowers' bank, but the state of Mississippi argues that this is not the same as a co-worker relationship.
In their petition to the Supreme Court, lawyers for the state don't address whether Evans had proof of Wright's wage garnishment. They instead argued that the reasons given at trial were enough to strike Wright:
Evans used his second strike against Cunningham, a 34-year-old woman who worked as a machine operator at ADP, a local factory where Flowers' sister also worked. When the judge asked for his reasons, Evans said:
At the 2010 trial, the defense responded:
Evans argued that Cunningham was lying about her relationship with Flowers' sister and brought in a co-worker to testify that the two worked near one another. The defense asked for evidence of this claim, but none was ever submitted.
In their appeal to the Supreme Court, Flowers' lawyers contend that the state has offered no evidence that Cunningham worked close to Flowers' sister at ADP and that white jurors were not subject to the same level of scrutiny:
Lawyers for the state, in their brief to the Supreme Court, argued that Cunningham's responses were enough to remove her and that no racial animus entered into Doug Evans' deliberation:
When challenged on his strike of Burnside, a 53-year-old woman, Evans offered the following:
The state also argued that Burnside expressed concern about imposing the death penalty, which would mean she couldn't serve on a jury in a capital case.
Flowers' lawyers argued that this, too, was a cover for discrimination. They said that no white jurors were asked if they were sued by victims' families and that while Burnside knew the Flowers family, she also knew the Tardys:
On appeal, the Mississippi Supreme Court again acknowledged that there was no evidence that Burnside had any wages garnished as part of litigation with Tardy Furniture. The court recognized that Evans had made multiple statements about jurors without providing evidence to back them up. "The statement that Burnside's wages had been garnished and that Burnside had denied it was not supported by the record," the state court wrote.
But that didn't change the fact that she was sued by Tardy Furniture in the first place. The court stated that the litigation was reason enough to eliminate her — "prior litigation is a race-neutral basis for a peremptory strike," the Mississippi court ruled.
Flowers' lawyers counter, in their appeal to the U.S. Supreme Court, that Evans questioned black and white prospective jurors in different ways. In Miller-El the same type of disparate questioning by prosecutors helped to prove purposeful race discrimination. At Flowers' trial, though Burnside initially told Evans that she would be uncomfortable serving as a juror, she later revised her position. The defense had asked Burnside, "despite the fact that you don't like to judge, if you got picked you would, in fact, judge and be fair to both sides; is that correct?" Burnside had said yes. For Flowers' lawyers, this showed that Evans stopped asking questions once he seemed to have what he needed to eliminate a black juror.
In their brief to the Supreme Court, lawyers for the state contend that the alleged misrepresentation about Burnside's wages doesn't matter because there were other race-neutral reasons for striking her. They argue that even if the reasons given at trial aren't persuasive, they are allowed as long as they are not unconstitutional, writing, "a valid, legitimate reason 'is not a reason that makes sense, but [rather is] a reason that does not deny equal protection.'"
Flancie Young Jones
Evans used his fourth strike to remove Flancie Jones, a 49-year-old former machine operator. He explained his decision this way:
At the heart of the state's strike against Jones was her response to a question about whether she supported the death penalty. When asked about it during jury selection, she said she was in favor of the death penalty, but on her jury questionnaire, she had written that she was strongly against it. When the state asked her to explain, she said, "I guess I'd say anything to get off."
The defense lawyers argued that Jones wasn't the only juror who had lied and that the state was again holding black jurors to a different standard. Burrell Huggins, a white juror the state accepted, had said during jury selection that he'd never heard anything about the Flowers case. But the defense lawyers had found out that he'd been brought in for jury duty on a previous Flowers trial and had talked about his connection with the Tardy family.
The defense had confronted Huggins about this at the time, asking, "So you were mistaken when you said the first time you heard anything about this case was when you walked in here this past Friday?"
Huggins had responded, "I mean what I meant was since then I have heard a little off and on."
Alison Steiner, a lawyer for the defense, told the court during jury selection:
Trial Judge Joey Loper ruled that because Jones said that she would say anything to get out of jury duty, but Huggins did not, there was enough of a difference between the two to justify keeping Huggins and dismissing Jones.
The defense then argued that the state also misrepresented Jones' connection to the Flowers family. Jones was only related to the Flowers family by marriage, the defense argued, which Judge Loper had previously said was "of minimal significance."
The similarities between Burrell Huggins and Flancie Jones aren't mentioned in the arguments submitted to the Supreme Court. Flowers' appellate lawyers instead chose to focus on the disconnect between Evans' statements about how Jones is related to Flowers:
Lawyers for the state of Mississippi argue that no matter what the relationship is, it is race-neutral and a reason to remove Jones from the jury:
Diane Owens Copper
Evans used his fifth and final strike on Diane Copper, who at the time of the trial was a 54-year-old woman who worked at Wal-Mart with Archie Flowers. When asked to explain his strike, Evans said:
Evans pointed out that Copper wavered about whether her connection to the Flowers family might make her uncomfortable with serving.
At trial, Flowers' lawyers responded that:
Here again, the Mississippi Supreme Court sided with Doug Evans. In their decision, the justices emphasized Copper's discomfort with the idea of serving as proof that the strike was race neutral.
Flowers, in his appeal to the Supreme Court, argues that the Mississippi Supreme Court's majority failed to consider facts beyond Evans' stated reasons for striking Copper and should have subjected those reasons to more scrutiny because, in their view, Evans put people on the jury who were in a similar circumstance as Copper:
Lawyers for the state of Mississippi argued in their brief to the Supreme Court that Doug Evans asked Diane Copper more questions because she made statements that needed more extensive follow-up:
The nine justices on the nation's highest court will now have to decide if Evans' reasons for dismissing these jurors were legitimate or if they were simply a cover for removing African-Americans from the jury. Curtis Flowers' life may depend on their decision.