WASHINGTON — For the first 55 minutes of a Supreme Court argument on Wednesday about racial discrimination in jury selection, the justices seemed united in their view that a white Mississippi prosecutor had violated the Constitution in his determined efforts to exclude black jurors from
the six trials of Curtis Flowers, who was convicted of murdering four people in a furniture store.
As Mr. Flowers’s lawyer concluded her argument, Justice Clarence Thomas asked
his first questions from the bench since 2016. He wanted to know whether the defense lawyer in the sixth trial had excluded any jurors. The lawyer said yes.
“And what was the race of the jurors struck there?” Justice Thomas asked.
White, said the lawyer, Sheri Lynn Johnson.
Justice Thomas holds the modern record for silence on the bench. Before his questions in 2016, he had gone a decade without asking one. His explanations have varied, but he has said lately that the other justices asked so many questions that they were rude to the lawyers before them.
The balance of the argument went well for Mr. Flowers, whose case has attracted widespread attention. Justices across the ideological spectrum said the track record of the prosecutor, Doug Evans, was deeply troubling. Justice Samuel A. Alito Jr. called it “unusual and really disturbing.”
In the first four trials, held between 1997 and 2007, Mr. Evans used all 36 of his peremptory challenges — ones that do not require giving a reason — to strike black jurors from serving. Three of those trials ended in convictions reversed on appeal, and one in a mistrial.
Official court records do not show the racial makeup of the jury pool for the fifth trial, in 2008, but the jury itself included nine white and three black people. It deadlocked, and the judge declared mistrial.
Over the years, Mississippi courts twice ruled that Mr. Evans had violated
Batson v. Kentucky, a 1986 decision that made an exception to the centuries-old rule that peremptory challenges are completely discretionary and cannot be second-guessed.
In the Batson case, the court ruled that racial discrimination in jury selection was different, and it required lawyers accused of it to provide a nondiscriminatory explanation.
Justice Brett M. Kavanaugh, who wrote
an article in The Yale Law Journal calling for vigorous enforcement of the Batson decision when he was a law student, said that Mr. Evans’s track record in the case mattered in the Supreme Court’s assessment of the sixth trial, which took place in 2010.
“We can’t take the history out of the case,” he said.
Even the state’s lawyer, Jason Davis, said that “the history in this case is troubling.”
Chief Justice John G. Roberts Jr. asked whether the court was entitled to take account of that history, and Mr. Davis said it could.
But he added that Mr. Evans had offered “valid race-neutral reasons for each strike” in the sixth trial.
At that trial, Mr. Evans accepted the first black prospective juror and struck the next five. Mr. Evans questioned black prospective jurors closely, asking an average of 29 questions of each of them. He asked the 11 white jurors who were eventually seated an average of one question each.
In that disparity, Justice Elena Kagan said, “the numbers themselves are staggering.”
Justices Alito and Sonia Sotomayor both suggested that Mr. Evans should have been taken off the case long ago.
“Could the attorney general have said, you know, enough already, we’re going to send one of our own people?” Justice Alito asked Mr. Davis, the state’s lawyer.
Under Mississippi law, Mr. Davis replied, state officials can step in only when requested by local ones like Mr. Evans, and there was no such request in the Flowers case. “So that was not an option in this case,” he said.
Much of the argument delved into Mr. Evans’s stated reasons for striking jurors in the sixth trial.
Justice Stephen G. Breyer described the characteristics of two potential jurors, one black and one white. Both were women in their mid-40s who had completed some college, strongly favored the death penalty and had some professional interactions with members of Mr. Flowers’s family. Justice Breyer suggested that race had been the decisive factor.
Justice Elena Kagan seemed to agree, noting that the black potential juror had an uncle who worked as a prison guard and a relative who had been victim of a violent crime. “Except for her race,” Justice Kagan said, “you would think that this is a juror that a prosecutor would love when she walks in the door.”
The justices had varied responses to whether the reasons offered by Mr. Evans appeared to be pretexts for racial discrimination. But there was something like a consensus that Mr. Evans’s past conduct tipped the balance in Mr. Flowers’s favor.
Mr. Flowers’s case was the subject of season-long examination by the podcast
“In the Dark,” which raised substantial questions about his guilt. In February, the podcast
won a George Polk award, a prestigious journalism prize, for its work about the case.
While the Supreme Court seemed likely to rule that the jury selection in Mr. Flowers’s latest trial was marred by unconstitutional racial discrimination, setting up the possibility of a seventh trial, its ruling is unlikely to establish any fresh legal principles.
Justice Kavanaugh said the key principle in the Batson decision was sufficient to address the matter. “You can’t just assume that someone’s going to be favorable to someone because they share the same race,” he said.
“Part of Batson was about confidence of the community and the fairness of the criminal justice system,” he said. “And that was against a backdrop of a lot of decades of all-white juries convicting black defendants.”
When Justice Thomas spoke near the end of the argument, it jolted the courtroom. His three questions suggested that both sides rely on racial stereotypes in picking jurors.
Justice Sotomayor responded that, with one exception, the defense lawyer could not have stricken any potential black jurors because Mr. Evans had already excluded them all.
Justice Thomas has offered shifting reasons for his silence during Supreme Court arguments. In
his 2007 memoir, “My Grandfather’s Son,” he wrote that he had never asked questions in college or law school and that he had been intimidated by some of his fellow students.
He has also said he was self-conscious about the way he spoke, partly because he had been teased about the accent he grew up with in Georgia. But in recent years, he has mostly said that he did not ask questions out of simple courtesy.
On the last two occasions on which he asked questions, in 2016 and on Wednesday, Justice Thomas asked questions only after the last lawyer finished early and was about to sit down.
Source: The New York Times, Adam Liptak, March 20, 2019
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