There's a phrase that appears frequently in the briefs for Curtis Flowers' appeal to the U.S. Supreme Court: "disparate questioning."
And there's good reason. At issue in Flowers' appeal to the Supreme Court is whether District Attorney Doug Evans illegally removed the black prospective jurors from the jury in the 2010 trial, Flowers' sixth for the murders of four people at a furniture store in Winona, Mississippi, in 1996.
Evans' questioning of jurors is potentially relevant because, in the 2005 case Miller-El v. Dretke, the Supreme Court concluded that the way the prosecution questions jurors of different races could be evidence of racial discrimination.
In Miller-El, the court ruled that when questioning African-Americans, prosecutors had used different scripts when talking about the death penalty, asked misleading questions, and generally tried to get the prospective jurors to say something that the prosecution could use to remove them. "Once again, the implication of race in the prosecutors' choice of questioning cannot be explained away," the majority wrote in its opinion overturning Miller-El's conviction.
To find out if Evans showed a pattern of asking African-Americans more questions in jury selection, APM Reports read through the transcripts for the previous Flowers trials.
We counted all of the roughly 10,400 questions the judge, prosecution, or defense asked prospective jurors in five of Flowers' six trials. (Jury selection in trial four was never transcribed. We counted questions asked of prospective jurors whose race we found in court documents. We have the race of some jurors from the first two trials. We have nearly complete records for trials three, five, and six.)
Overall, we found that most jurors were asked very few questions. There were a small number of jurors who were asked a lot of questions, sometimes more than 100. These are the jurors who, when asked about topics like whether they knew a witness or favored the death penalty, gave answers that required follow-up questions to determine whether they could be fair.
However, we did find racial disparities in the average number of questions that Evans asked.
On average, Evans asked black prospective jurors three times more questions. He asked African-Americans an average of 15 questions in the five Flowers trials we examined, while he asked whites an average of only five.
In Curtis' sixth trial alone, Evans asked black prospective jurors 3.5 times as many questions on average.
In its briefs to the court, the state of Mississippi contends that Evans had to ask black prospective jurors more questions because they said things that required elaboration or warranted greater scrutiny. "The record clearly shows this was not disparate questioning but rather a means of following up," the state argues. But Flowers' attorneys make the case that there are two sides to that coin. White prospective jurors, they say, were almost never subjected to thorough questioning, even when their answers warranted it. For instance, white prospective juror Larry Blaylock, who'd said that he knew several of the witnesses in the case and that Doug Evans had prosecuted his relative, was questioned only briefly by Evans:
A: I had a second or third cousin that was convicted of murder. (Juror No. 22, Mr. Larry Wayne Blaylock)
Q: And where was that?
A: I believe it happened in Carroll County.
Q: Okay. I know who you're talking about. Is there anything about that — because my office did handle that, too — is there anything about that that would affect you in this case?
A: No, sir.
Q: All right. Thank you, Mr. Blaylock.
Evans asked three questions, none having to do with Blaylock's connection to witnesses or the victim's families and sought no further information. Blaylock himself told APM Reports, "I knew basically everyone in the case. I never thought I'd get picked."
Here are all the questions Evans asked white prospective juror Pamala Chesteen about her relationship to Flowers' relatives through her work:
A: Yes, sir. (Juror No. 17, Pamela Chesteen)
Q: You have stated that you knew Mr. and Ms. Flowers and I think Nelson Forrest. Is there anything about those relationships that would affect you in this particular case?
A: No. I've waited on them all at the bank as my customers. Most of the Flowers family.
Q: So it's just strictly — like Mr. [Alexander] Robinson, just a working relationship?
Q: All right. Thank you, ma'am.
Here is how Doug Evans questioned Tashia Cunningham, a black prospective juror with a working relationship with a member of the Flowers family. Flowers' lawyers argue that both the length and character of questioning is different from the way Evans treated white prospective jurors:
A: Yes. (Juror No. 44 Tashia Cunningham)
Q: And I as a matter of fact, I think y'all work side by side there, don't you?
A: No, sir.
Q: You work the same [assembly] line?
A: We work the same line, but she did ...
Q: But you see her every day at work?
A: Sometime, not all the time.
Q: How would you not see her?
A: She works at the front of the line, and I work at the end of the line.
Q: Okay. And y'all are friends, aren't you?
Q: You're not friends?
A: Just a working relationship.
Q: Okay. How long have you worked with her?
A: I've been there five years.
Q: How long has she been there?
A: I have no idea.
Q: Was she there when you got there?
A: She was there on — when I came, she was on third shift when I started.
Q: How long have y'all been working the same shift?
A: Probably about two or three years.
Q: Okay. And let's see. I believe you stated that you knew Mr. Nelson Forrest and Reverend Lewis?
Q: Is there anything about those relationships that would affect you?
Q: All right. As far as Sherita, if you were picked as a juror on this case, do you feel that if you found from the evidence that he was guilty and voted guilty that you would owe her any explanation?
Q: Okay. You don't feel that that would affect you at all?
Q: All right. Thank you, ma'am.
[Questioning continued at a different time]
Q: All right. I want to go back to something we talked about the other day. You work at ADP; is that right?
Q: And you work with the Defendant's sister, Sherita Baskin?
Q: Now, the other day, I think you said that you do not work close to her?
A: No, I do not.
Q: Would you think about that for a minute?
A: I do not.
Q: Are you sure that you do not work side by side with her?
A: No, I do not.
Q: And you're saying that under oath?
A: Yes, sir.
Q: You've also said that you know — in addition to Sherita, you know Nelson Forrest and Reverend Lewis; is that correct?
Q: And you're saying that knowing none of those would affect you in any way in this case?
A: No, sir.
Flowers' lawyers argue that Chesteen was asked three questions, and Evans accepted what she said, while Cunningham was questioned over and over again on the same topic.
The state of Mississippi argues that Cunningham was questioned differently because she was lying.
In a move that very rarely happens in jury selection, Evans brought in a witness to testify that Cunningham was being dishonest. The witness, a woman named Crystal Carpenter, was called to testify that Cunningham worked physically close to Charita Baskin, "nine or ten inches." At trial, the defense asked Carpenter for some proof beyond her testimony that Charita and Cunningham worked closely together, but the prosecution never submitted any.
The Supreme Court must now decide whether the differences in questioning are reflective of what the jurors told the court, or reflective of Evans' attempts to remove jurors because of their race.