Criminal Justice

Supreme Court Rules in Favor of Curtis Flowers, Man Tried 6 Times for Same Crime

The high court ruled that prosecutor Doug Evans violated Flowers' constitutional rights when Evans sought to keep African-Americans off of the jury.


Curtis Flowers, a black man tried six times for the same 1996 quadruple murder, will get a seventh trial, the Supreme Court ruled Friday.

Writing for the majority, Justice Brett Kavanaugh said that prosecutor Doug Evans—who oversaw all six trials—violated Flowers' constitutional rights when he sought to keep African-Americans off of the jury. Evans struck 41 out of 43 potential black jurors over the course of the legal proceedings, including five out of six in the final trial. Such conduct is in contention with precedent outlined in Baston v. Kentucky, he said, a Supreme Court decision that ruled that peremptory challenges—in which a prosecutor may strike a juror without reason—cannot be racially biased.

"The numbers speak loudly," Kavanaugh wrote. "Over the course of the first four trials, there were 36 black prospective jurors against whom the State could have exercised a peremptory strike. The State tried to strike all 36."

Flowers is currently on death row. Two of his trials ended in hung juries, and with the high court's latest decision, all four convictions have been overturned on appeal.

Justices Clarence Thomas and Neil Gorsuch dissented. "The majority builds its decision around the narrative that this case has a long history of race discrimination," Thomas wrote. "This narrative might make for an entertaining melodrama, but it has no basis in the record." It's hard to see how he arrived at that conclusion, though, when considering the years-long history of bias against African-American would-be jurors.

Evans has also garnered attention for allegations of further prosecutorial misconduct—such as introducing evidence unrelated to the crimes on trial—which contributed to Flowers' first two reversed convictions. But it doesn't stop there. I wrote back in April:

Evans has committed a slew of prosecutorial infractions, including the use of faulty testimony from Odell Harmon, a jailhouse snitch who falsely implicated Flowers after the state offered him a deal. He has since recanted. That drew mainstream outrage after the release of the second season of "In the Dark," a podcast profiling Flowers's jaw-dropping journey through the legal system.

More here.

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  1. a Supreme Court decision that ruled that peremptory challenges—in which a prosecutor may strike a juror without reason—cannot be racially biased.

    *cough* OJ Trial *cough*

    1. Hey give a brother a break…

  2. will get a seventh trial, the Supreme Court ruled Friday

    This seems altogether crappy. Guess who is the prosecutor who’s gonna try the 7th time? And why on Earth could the Supremes not simply rule that the State has had more than enough opportunities to violate constitutional rights and they are now enjoined from anything further re this defendant on that case.

    1. In part, because Flowers (or more accurately, his lawyers) didn’t make the argument that a seventh bite at the apple would violate the speedy-trial rule in the Sixth Amendment.

      It would have been nice if they’d laid down some boundaries like “get a different prosecutor this time”, though.

  3. Did Flowers murder four people, execution style? There is no disputing the fact that four people were murdered.

    Would a black juror overlook that fact (if it is a fact) for racist reasons? If so, is it acceptable to society in general condone those murders?

    Tough questions.

    1. Would a black juror overlook that fact (if it is a fact) for racist reasons?

      Well, I’m sure such a person exists.

      I don’t think it is so much about condoning murders. That’s not how our justice system is supposed to work. The process being fair and just is more important than punishing every criminal act. That’s pretty much the whole basis for the system that we have (and it’s a pretty good one in it’s essence, despite major flaws).

    2. A juror that would excuse murder for racist reasons can be struck for cause.

      That’s not at issue here.

      What’s at issue is striking jurors without cause for racist reasons.

      So unless you really want to hang your argument on “all blacks would excuse murder for racist reasons”, there’s no defending this.

      1. I am not hanging my hat on the assertion that “all blacks would excuse murder for racist reasons”, and I am not defending this.

        I am simply asking the question, “is Flowers guilty of four murders”?

        I guess we will find out in the next trial.

        1. Because the first six trials said not guilty?

        2. The answer is “we still don’t know”.

          What we do know is that of the two trials where the prosecutor was least successful at rigging the jury membership (the fourth and fifth trials), the jury was unable to reach a verdict. Here’s the full history:

          Trial 1 – all white jury convicts. Overturned for prosecutor misconduct before even reaching the question of bias.
          Trial 2 – 1 black juror struck “for inattention” but put back by the trial judge who determined that the prosecutor’s alleged reason was “false”. 11-1 jury convicts. Again overturned for prosecutor misconduct.
          Trial 3 – prosecutor strikes every black member of the jury pool but runs out with 1 black juror left. 11-1 jury convicts. Overturned for bias.
          Trial 4 – prosecutor again uses every peremptory against only black jurors but again runs out. Mixed jury (7-5) could not reach a verdict.
          Trial 5 – Mixed jury (9-3) again could not reach a verdict.
          Trial 6 – prosecutor uses strikes against 5 of 6 black jurors. 11-1 jury convicts.

          One way of looking that is “all those people think he was guilty so he must be guilty”.
          Another way of looking at it is “if the evidence was solid, the prosecutor wouldn’t be playing all these games”.

          1. You would think that they would disbar the guy after the second trial was overturned for prosecutorial misconduct.

          2. Yet another way of looking at it is to actually read Alito’s concurrence and Thomas’s dissent which describe how personally connected almost every single person in community is to one another and that many of the personal connections that fall across racial lines would be valid reasons to strike regardless of skin color.

    3. Those aren’t the relevant or tough questions at all. The only evidence against him was a check to him for $30 on the desk of the slain store owner. He had worked there a few weeks earlier. That’s it.

      Everything else about the case was, as this investigative article (and yeah they certainly have an agenda beyond the facts of their investigation itself) asserts, a prosecutor’s nightmare. Heinous murders in a small town, no real evidence, no motives, no trail going anywhere.

      According to that article, the reason black jurors in that county are likely to acquit is because they know Flowers as the lead singer in a local gospel quartet so they would need a bit more evidence than a check on a desk to change their perception to cold-blooded mass murderer. Whites in that county don’t know him at all cuz the county is still de facto segregated – so as long as ‘someone pays’ for that crime…The racism in question is more about extremely different perceptions of what is ‘reasonable doubt’ and ‘jury of one’s peers’ and ‘presumption of innocence’ – esp in a capital case – in Mississippi.

      1. There’s also been a series of podcasts about the whole thing called In the Dark. But par for the course, it’s gotten far more publicity outside the US than here.

    4. > Would a white jury overlook the facts in its haste to scapegoat a black?

      1. Hurricane Carter says, absofuckinlutely.

        “The judge made Rubin’s witnesses drunkards from the slums
        To the white folks who watched he was a revolutionary bum

        And to the black folks he was just a crazy nigger
        No one doubted that he pulled the trigger
        And though they could not produce the gun
        The DA said he was the one who did the deed
        And the all-white jury agreed.

    5. None of those are tough questions.

      What is a tough question is ‘should the state get another crack at this dude after showing its corruption multiple times or do we, in the name of justice, let a potential murderer walk?’

      Hell, that’s not even a tough question – let the man walk.

      1. I had a very similar reaction. At what point does this become a miscarriage of Justice in the eyes of the Courts? Even a rather wealthy man would have run out of resources long before he completed seven trials and 7 sets of Appeals.

        This guy has presumably been trundling along with public defenders and any pro bono help he can get through many millions of dollars worth of proceedings. All the while, he has no opportunity to support himself or his family or earn money for his defense.

        Meanwhile, the prosecutor’s office can happily spend an infinite amount of money in carrying out this prosecution. The only thing that can stop this is either an all-out acquittal or A conviction that is not overturned. that is surely not a reasonable standard, despite the fact that this is surely an outlier That is not oft-repeated.

    6. The more pertinent question is whether or not a majority of whites would be more apt to vote to convict for racist reasons. The question isn’t just whether or not the guy committed the crimes, it’s whether or not the state can prove it beyond a reasonable doubt. “Reasonable doubt” seems to hinge an awful lot on the jury being sympathetic to the defendant. (There’s a whole industry built around marketing defendants to the jury that isn’t really much different than the industry built around marketing potato chips and laundry soap to shoppers.)

    7. One of the victims was black.

  4. So if a defendant can claim he needs jurors of his race, can we now define a ‘jury of peers’ to mean only murderers should be on the 7th jury?

    1. Only accused murderers should be on the jury. We don’t know that he’s guilty yet. And maybe they need to be accused of exactly 4 murders to qualify…

    2. So if a defendant can claim he needs jurors of his race […]

      The article actually cited the precedent here. Baston v. Kentucky (1986).

      So (A) that’s an obviously incorrect reading of both this ruling and Baston v. Kentucky, and (B) this isn’t new, as it was precedent for over a decade before Flower’s case got started.

      1. Can we at least admit the oddity of saying a prosecutor can strike a juror without any reason except for that one? Maybe we shouldn’t say any. We should say most any reason.

        1. Yes.

          I have been struck from a jury. No reason was given, but I think it was because I am an engineer and the prosecutor wanted a more emotional type on the jury. No reason was necessary for the prosecutor’s decision. That is the process.

          By the way, I was quite happy to be removed.

      2. The article misspells the case name. It’s Batson v. Kentucky.

  5. IANAL, so fill me in; if you strike a juror with cause, can that cause be challenged later? If it’s anything like firing without cause, it’s something practical that saves you a lot of work. Perhaps he didn’t think the case would drag on so long that someone would start asking questions about why he struck all those people without cause.

    1. I don’t know if you can challenge a for-cause strike later but you can challenge it immediately. That exact scenario occurred in Trial 2. The prosecutor struck all five black prospective jurors. The trial judge ruled that one of the alleged reasons (that the juror had been inattentive and was nodding off during jury selection) was false and was a pretext for discrimination. The trial judge put that juror back on the jury and the trial continued.

  6. Such conduct is in contention with precedent outlined in Baston v. Kentucky, he said, a Supreme Court decision that ruled that peremptory challenges—in which a prosecutor may strike a juror without reason—cannot be racially biased.

    So then either ‘without reason’ means, literally, ‘lolrandom’ or it means ‘without having to provide a reason to others’ – except that that’s not true, is it? Since we’re piling on restrictions to the use of peremptory challenges.

    But it does illustrate a long-standing point – give someone a power and they will find ways to use it that you would never have thought they’d stoop to. No exceptions.

  7. Ever meet a white person that thought OJ was innocent? Ever meet a black person that thought he was guilty?

    Trying to get black people onto/off of juries is a real strategy that improves the odds of the lawyer’s desired outcome.

    Since our backgrounds bias our perspective on “reasonable doubt”, I suppose a jury of our peers should not eliminate those of a more similar background.

    At the same time, whites on trial for Jim Crow lynchings were often acquitted by all white juries through some messed-up jury nullification…

    1. I don’t know about blacks you know, but my entire circle of friends know that he was guilty. The problem was that Al Sharpton successfully changed the trial into a vote of no-confidence on the LAPD, whom we are fairly certain (note: as certain as we can be without an actual trial) did plant evidence.

      I would rather let a guilty man walk than support corrupt prosecution.

      1. Al Sharpton or Johnnie Cochran?
        My opinion of the case is that the prosecution feared a reprise of the 1992 race riots if Simpson was found guilty, so they did all they could to make a conviction unlikely.

      2. At the time of the trial that was not the case. A vast majority of the black community believed him to be innocent. Truly innocent. It was an emotional and passionate issue.

        I actually found it very instructive. Because I had always believed that southern white juries who acquitted white men accused of lynchings were doing so with a wink and a nod, knowing all along that the guys were guilty. Watching reactions to the OJ Simpson trial showed me just how strong cognitive bias can be. People actually believe what they I want to believe, Any confounding facts notwithstanding.

        It took a couple of years before that completely flipped and everyone was able to admit that he was guilty. I think Chris Rock played a pivotal role in allowing that admission when he took to the stage and fessed up for everyone.

        1. A vast majority of the black community believed him to be innocent

          Not the blacks I know. Every one I knew believed Mark Fuhrman to be a racist – with a prior issue re OJ. And since virtually all the evidence actually went through his hands first – and LAPD was notoriously problematic, the trial really WAS about the credibility of the LAPD. Without exception, they saw themselves in OJ’s place – but with someone far less talented than the ‘DreamTeam’ as defense lawyers.

          I agree about cognitive bias and time ‘changing’ people’s opinions. But I’d argue that black opinion during the trial itself wasn’t really about OJ at all. They had no opinion about his guilt/innocence. Strong opinions about LAPD – but of course those opinions fade over time cuz it’s not like LAPD killed Nicole. And after those fade what’s left is ‘Did OJ kill Nicole’. Which is where whites were during the trial cuz we had no opinions about LAPD (or deferred to them as objective seekers of evidence).

          1. Dershowitz had one of the best comments on that trial and its aftermath.

            it showed that the system can work very well, and that in fact the system will operate on the principle of better 10 guilty go free than one innocent be wrongly convicted.

            And you know what? The public [meaning whites] doesn’t like the system. The public much prefers the old system, the old system in which the prosecution really doesn’t have to prove the case beyond a reasonable doubt; the prosecution really doesn’t have to abide by the Constitution; the prosecution really doesn’t have to play fair with all the evidence. The public saw the system working, and they didn’t like it. …

  8. Of course, the courts could just select juries with alternates, and then randomly assign them to cases. No need for a gazillion lawyers to get rich with jury analytics, no need to waste days on interviews and challenges. No need for prospective jurors to have to cough up all kinds of personal information to a bunch of bureaucrats.

  9. If this Evans character pulls that usual bullshit of offering Flowers instant freedom for pleading guilty to reduced charges, I beg of you Mr. Flowers, don’t do it.

    I think he’s innocent. This case is in a rather small county where a murder trial is a huge hit on their budget. Call his bluff and walk away as being fully exonerated from death row.

    1. After all Mr. Flowers has been through, he might be worn down to the point where he will plead guilty and sentenced to time served. As for the DA, he likely will not be punished.

  10. “It’s hard to see how he arrived at that conclusion, though, when considering the years-long history of bias against African-American would-be jurors.” Wow. Not only do you question 2 Supreme Court Justices’ capacity for reason without examining any of the facts or arguments presented in their dissent, you also make an unsupported claim — that there was a years-long history of bias — that was directly refuted in the dissent without even acknowledging it. Justice Thomas pointed out that only one peremptory strike of a black juror out of the 50 over the course of 4 trials was found to be racially motivated by the trial judge. The Batson Court and all 9 justices agreed that the trial judge is in the best position to determine whether a strike is racially motivated, and the trial judge did not consider 98% of the peremptory strikes discriminatory.

    It is possible for reasonable people to read the history and specific details of this case and come to different conclusions about the prosecutor’s reason for striking the specific juror, and I fact 6 justices saw clear evidence of discrimination, 2 saw no evidence of discrimination, and one saw a potential problem with the fact pattern especially in a case of a capital offense. To simply disregard the conclusions of a third of the Supreme Court as self-evidently unreasonable is just lazy, arrogant, and unconvincing.

  11. It’s hard to see how he arrived at that conclusion, though, when considering the years-long history of bias against African-American would-be jurors.

    Easy: African-American populations have much higher rates of prior convictions, single parenthood, welfare dependency, and other factors. A prosecutor that chooses non-racial criteria to select jurors is pretty much certain to have a racial bias in jury selection. And that’s not even taking into account the likely racial biases of African American jurors.

    The error here is in the assumption that a fair, racially blind selection process would result in a racial mix representative of the population. That’s an absurd assumption.

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