December 01, 2019

Seventh Trial Remains Possible for Curtis Flowers After Winning Racial Bias Claim at Supreme Court

Curtis Flowers’ capital conviction and sentence was overturned on June 21, 2019, following a finding that his previous trial was marred by impermissible racial bias in jury selection. This decision arose out of the sixth attempt by the state to prosecute Mr. Flowers 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 mistrials. The sixth conviction, however, 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.

The U.S. Supreme Court, in a decision authored by Justice Kavanaugh, held that the Mississippi high court had erred in deciding that the State’s peremptory strikes of black prospective jurors were not substantially motivated by purposeful racial discrimination. In reaching this decision, the Court applied Batson to the “extraordinary facts of this case.” The Court looked at the history of racial discrimination in peremptory strikes across the six trials as well as the number of potential black jurors that were 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. Justice Thomas, joined in part by Justice Gorsuch, wrote a lengthy dissent stating that the majority’s decision was “manifestly incorrect” and opining that the Court ignored the State’s race-neutral reasons for its use of peremptory strikes. He also suggested that the Court had agreed to review Mr. Flowers’ case simply due to the significant media attention it had garnered. In a part of the dissent not joined by Justice Gorsuch, 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.

In September, following the Court’s ruling, the Mississippi Supreme Court sent the case back to the trial court for further proceedings. In public statements and trial court filings, Mr. Flowers’ attorneys have argued that the State should dismiss the charges rather than proceed with a seventh trial, citing the lack of physical evidence connecting Mr. Flowers to the crime and the thin basis of the case against Mr. Flowers generally. Mr. Flowers was first moved from the state’s death row to the county jail pending any retrial and then was granted his request to be released on bail in the interim.

Mr. Flowers’ prosecutor, Doug Evans, ran unopposed and was automatically re-elected in November to an eighth four-year term as District Attorney for Mississippi’s Fifth Circuit Court District, which encompasses several counties. Mr. Evans has been the district’s elected chief prosecutor since 1991. Following the U.S. Supreme Court decision, Mr. Evans told a local Mississippi newspaper that “[Mr. Flowers] will have to be retried,” but his office has not yet announced official plans to try Mr. Flowers a seventh time. In November, a federal class action lawsuit was filed against Mr. Evans. The named plaintiffs include four black would-be jurors in Mr. Evans’ district and the local NAACP branch, who are asking the judge to issue an injunction to prevent systematic racial discrimination in jury selection.

To read the Project’s previous story detailing the opinions in Flowers v. Mississippi, click here.