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SCOTUS maintains Batson; DA’s history of striking black jurors matters

Flowers v. Mississippi, USSC No. 17-9572, 2019 WL 2552489, June 21, 2019, reversing Flowers v. State, 240 So. 3d 1082 (Miss. 2017); Scotusblog page (includes links to briefs and commentary)

The Court reverses Curtis Flowers’ conviction and death sentence and orders a seventh new trial on the ground that the district attorney at his sixth trial (he also prosecuted the other five) exercised at least one peremptory strike with racially discriminatory intent. Three previous convictions were overturned by lower courts because of “numerous instances of prosecutorial misconduct” (that was the first one) “prosecutorial misconduct” (two) and “as strong a prima facie case of racial discrimination” as the Mississippi Supreme Court had “ever seen” (this was trial number three).

Neither the fourth nor the fifth trial was the charm; both ended in hung juries. Over the course of all these trials, the prosecutor struck every black juror he could; more than 40. Black people ended up on the panels only “after the State ran out of peremptory strikes” or, in one instance, after the trial court itself found the prosecutor’s stated reason for the strike to be a pretext for racial discrimination.

In the sixth trial, there were 6 black prospective jurors. The state used five of its six strikes to remove five of those black people from the pool.

The Court is careful to say that it “break[s] no new legal ground” in holding that Flowers’ latest conviction was obtained in violation of Batson v. Kentucky, 476 U. S. 79, 97 (1986). This may be reassuring, given the pattern of misconduct here. (In the Court’s words, “[t]he State appeared to proceed as if Batson had never been decided.”) The majority cites four facts that, in combination, “require reversal” (though noting that it’s not deciding if any of the facts alone would suffice):

First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. Tr. of Oral Arg. 32. Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective
jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck
by the State.

(Slip op. at 2-3 (emphasis in original)). That’s just a summary; the Court then launches into a remarkably fact-intensive discussion, marshaling the evidence like a lawyer in closing argument. In the end, the evidence of the prosecutor’s disingenuousness, even on a cold paper record, is enough to overcome the deference due the trial court, whose assessments of the motivation for a strike, which include evaluations of a “prosecutor’s credibility” and “demeanor” must be sustained unless clearly erroneous. (Slip op. at 17-18).

Justice Alito concurs. His point is that this is an unusual, perhaps one-of-a-kind case, both because of the small everybody-knows-everybody community from which the jury was drawn and because of the prosecutor’s track record in the five previous trials. He says, in essence, that the Mississippi court’s analysis was technically sound, but missed the forest for the trees; he’d typically vote to affirm but the factual case for discriminatory intent is just too clear to disregard.

That makes eight Supreme Court justices for whom the evidence of discrimination is overwhelming. It’s therefore worthy of notice that the ninth, Justice Thomas, says in dissent that “there was no evidence of race discrimination in the trial here.” He, too, gets deep in the factual weeds, and tells a story utterly at odds with that of the majority. Both opinions are fascinating reads; if you have the time (the whole decision runs to 78 pages) you should sit down with them. Besides disagreeing with the majority on what happened, Justice Thomas takes aim at the whole Batson framework, arguing that it vindicates no one’s rights (since the excluded juror suffers the harm but the defendant receives the remedy) and weakens the peremptory strike, which he views as a tool to secure fairness, including racial fairness, for defendants.

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