On March 20, 2019, the Court heard oral arguments in Curtis Flowers’ case. Since 1997, Flowers has been tried six times for the same crime. In the first four trials, Mississippi District Attorney Doug Evans used all 36 of his peremptory challenges to remove African Americans from the jury. Flowers’ first conviction was reversed by the Mississippi Supreme Court for unrelated prosecutorial misconduct. At Flowers’ second trial, after Evans tried to strike all five African-American potential jurors, the trial judge found Evans had violated Batson v. Kentucky and disallowed one of the strikes. That conviction was again reversed for unrelated prosecutorial misconduct. The third conviction was reversed due to Evans’ discriminatory juror strikes, with the Mississippi Supreme Court calling it “as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.” Two more trials ended with hung juries. The sixth jury was composed of 11 white jurors and one African-American juror, after five African-American potential jurors were struck. The Supreme Court agreed to hear the case to decide whether the history of racially discriminatory jury strikes across Flowers’ trials should be a factor in assessing the credibility of Evans’ race-neutral explanations for his peremptory strikes in the sixth trial.
During the argument, the justices’ questions suggested they believe the answer to that question is yes. Chief Justice Roberts acknowledged, “This case is unusual because you have that extensive history.” Justice Kavanaugh stated, “We can’t take the history out of the case,” asking the attorney representing Mississippi, “It was 42 potential African Americans and 41 were stricken, right? That’s relevant, correct?” He probed further, “Can you say you have confidence in how this all transpired?” Justice Alito, likewise, called Evans’ history of strikes “very troubling” and “certainly relevant.”
Justice Thomas broke his typical oral argument silence to ask a different sort of question, querying Flowers’ attorney about the race of the jurors whom the defense struck. Flowers’ attorney, Cornell law professor Sheri Lynn Johnson, responded that they were white. As Justice Sotomayor pointed out, however, with one exception, there were no African-American potential jurors left for the defense to strike, as Evans had already stricken all of them.
Evans, who has been the judicial circuit’s elected District Attorney since 1991, will be running unopposed for a fifth term in November. He said in January that he would be open to trying Flowers for a seventh time. The Court’s consideration of the case is pending, with a decision expected later this spring.