WASHINGTON—The lawyer for a black death row inmate in Mississippi told a sympathetic Supreme Court on March 20 that her client’s 2010 conviction at his sixth trial on the same charges was tainted because the white prosecutor unconstitutionally excluded blacks from the jury at that trial and at others that preceded it.
“When all of the evidence in this case is considered … the conclusion that race was a substantial part of [Montgomery County District Attorney Doug] Evans’ motivation is inescapable, and the Mississippi Supreme Court’s conclusion to the contrary is clearly erroneous,” said attorney Sheri Lynn Johnson, a professor at Cornell Law School and assistant director of the Cornell Death Penalty Project.
Curtis Giovanni Flowers, 48, was condemned to death for murdering four employees of a furniture store during a 1996 robbery in Winona, Mississippi. Three of Flowers’ victims were white; one was black. Two of his trials ended in hung juries. Convictions from three trials were reversed because Evans, an elected prosecutor and Democrat, violated Batson v. Kentucky, a 1986 Supreme Court decision. Batson forbids a state from using its peremptory challenges to exclude jurors because of their race. A peremptory challenge is one that a lawyer does not have to justify in court.
In 2016, the Supreme Court ordered the Mississippi Supreme Court to reconsider its findings in light of Foster v. Chatman, a 2016 ruling that found another prosecutor in Georgia showed racial animosity in excluding all four black prospective jurors in a murder trial with a black defendant. The convictions and sentence from the final Flowers trial were then upheld by the Mississippi Supreme Court, which rejected claims of racial bias by Evans, even though he dismissed five of the six black potential jurors. Flowers appealed to the Supreme Court, which decided Nov. 2, 2018, to hear his case.
Justices Samuel Alito, Sonia Sotomayor, and Elena Kagan all seemed disturbed by Evans’ conduct. Alito said the prosecutor’s previous behavior was “very troubling” and “certainly relevant.” Sotomayor pointedly observed that Evans had “passion” for prosecuting Flowers, and Kagan said the difference in how he questioned white and black would-be jurors was “staggering.”
Responding to Kagan, Mississippi Special Assistant Attorney General Jason Davis said the sixth-trial exclusions of jurors was “supported in the record.”
“Each of the jurors that were struck either worked with a relative, were related, or knew, intimately, family members, the defendant or his family members, up to and including one juror who lied on her questionnaire and then admitted to lying on the stand.”
Chief Justice John Roberts told Johnson he was “interested, because, obviously, the rule we adopt will apply in other cases, how far your argument that we need to look at the past history is … pertinent.”
After Johnson acknowledged that the defense lawyer at the sixth trial exercised peremptory challenges to excuse prospective jurors, Justice Clarence Thomas asked, “what was the race of the jurors struck there?” This was reportedly the first time in three years that Thomas, who is known for staying silent during oral arguments, asked counsel a question.
“She [the defense attorney] only exercised peremptories against white jurors,” Johnson replied. “But I would add that the motive—her motivation is not the question here. The question is the motivation of Doug Evans.”