On June 21, 2019, the Supreme Court issued its decision in Flowers v. Mississippi, reversing Mississippi death-row prisoner Curtis Flowers’ capital conviction and sentence. Prior to the high court’s decision, Mr. Flowers had been tried six times for the same crime. The first three convictions were reversed by the Mississippi Supreme Court due to repeated instances of prosecutorial misconduct and violations of Batson v. Kentucky, the case that outlawed racial discrimination in jury selection. The fourth and fifth trials resulted in hung juries. The sixth conviction was upheld by the Mississippi Supreme Court, even after Mr. Flowers argued that the State had again violated Batson, this time by using peremptory strikes to remove five of six black prospective jurors. Mr. Flowers sought review of his sixth conviction, and the Supreme Court granted certiorari. On March 20, 2019, the Court heard oral arguments.
Justice Kavanaugh, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, wrote for the majority, declaring that the Mississippi Supreme Court committed clear error in deciding that the State’s peremptory strikes of black prospective jurors were not substantially motivated by purposeful racial discrimination. Justice Kavanaugh noted that the totality of the circumstances in this case—the history of racial discrimination in peremptory strikes across the six trials, the five out of six potential black jurors struck at the sixth trial, the dramatically disparate questioning of potential white and black jurors at the sixth trial, and the strike of a black juror who was similarly situated to white jurors who served on the jury at the sixth trial—violated Batson, and therefore Mr. Flowers’ constitutional rights. Justice Kavanaugh observed that the statistical evidence and pattern of peremptory strikes against potential black jurors further suggested that the State was motivated by discriminatory intent. Although the Court typically does not take up cases only to correct errors made in the courts below, Justice Kavanaugh’s opinion suggested the Court’s decision in Flowers was dictated by simple application of existing law. His opinion closed by cautioning “…we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.” Justice Alito wrote a separate concurrence in Mr. Flowers’ case to emphasize that he agreed with the reversal based only on the “unique combinations of circumstances present here.”
Justice Thomas, joined in part by Justice Gorsuch, wrote a lengthy dissent declaring that the majority’s decision was “manifestly incorrect.” Justice Thomas insisted that the Court ignored the State’s race-neutral reasons for its use of peremptory strikes and suggested that the majority had disregarded traditional criteria in granting certiorari, and instead reviewed Mr. Flowers’ case simply due to the significant media attention it had garnered. In a later part of his dissent, Justice Thomas went on to question the precedent in Batson generally, calling its rule “suspect” and arguing that defendants should not have standing to bring Batson claims. This section of the dissent was not joined by Justice Gorsuch, indicating little support among the rest of the Court for this critical view of Batson. By contrast, Justice Kavanaugh’s agreement with Batson can be traced back at least to his law school days, when he published a note exploring the Supreme Court’s holding in Batson and arguing that the defense should have an opportunity in a hearing to rebut the prosecution’s explanation for exercising a peremptory challenge. The Flowers decision suggests that Justice Kavanaugh and the majority of his colleagues continue to view Batson as an essential check on racial bias in criminal proceedings.
Following the Supreme Court decision, Mr. Flowers’ attorney called the decision a “victory for everyone” and urged the State to refrain from trying Flowers for a seventh time, saying it would be “unprecedented, and completely unwarranted given both the flimsiness of the evidence against him and the long trail of misconduct that has kept him wrongfully incarcerated all these years.” His attorneys have argued that the only evidence still linking Mr. Flowers to the crime is the statement of a jailhouse informant who recanted his original testimony, and a popular podcast had been made about the case, calling much of the evidence against Mr. Flowers into question. Despite the Court’s decision and the continued erosion of the factual case against Mr. Flowers, the district attorney’s office has stated that it is preparing to try the case a seventh time.