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SCOTUS Analysis: Flowers v. Mississippi

Kay L. Levine |
Kay L. Levine

This term the Supreme Court held that a trial court may properly consider a prosecutor’s past history of Batson violations when evaluating that prosecutor’s reason for striking a juror in a current case. The challenge arose from a murder case that originated in the small town of Winona, Mississippi, more than two decades ago.

In 1996, four people were fatally shot inside Tardy Furniture Store. The police quickly focused on Curtis Flowers, a young African-American man who recently had worked at the store and had been terminated for attendance issues. Doug Evans, the local prosecutor, filed charges against Flowers, and the case progressed to trial.

Fast forward 23 years. The case has been tried by Evans six separate times, to six separate juries, all of whom found Flowers guilty or failed to reach a unanimous verdict. But in each of the first four trials (there is no record of jury selection in the fifth trial), the prosecutor used his peremptory strikes to disproportionately exclude African-American jurors; despite significant numbers of African Americans in the jury pool, the respective juries that heard Flowers’ case contained no more than one African-American citizen (and in most of the trials African Americans were completely excluded due to prosecutorial peremptories). The prosecutor followed the same pattern in the sixth trial, and Flowers was once again convicted by a jury containing 11 whites and one African-American.

In this appeal, Flowers argued that the prosecutor’s historical record of Batson violations ought to be one of the factors considered when new Batson challenges are raised. In particular, he argued that the prosecutor’s long-standing history of violating his equal protection rights is proof that any reason offered for striking an African-American juror in the sixth trial was mere pretext for racial discrimination. (In fact, Evans’ office has a history of discrimination against African-American jurors that goes beyond Flowers’ case: prosecutors in that office have struck African-American prospective jurors at a rate more than four times higher than the strike rate of Caucasian jurors over the past 25 years.)

To place Flowers v. Mississippi in context, the Supreme Court decided in 1986 in Batson v. Kentucky that the equal protection clause applies to the use of peremptory challenges in jury selection by the prosecutor. When the defense attorney raises a challenge to the pattern of strikes made by the prosecutor, the burden then shifts to the prosecutor to provide a race-neutral explanation for his or her to decision to strike each of the jurors identified by the defense as problematic. Once the prosecutor has delivered this explanation, the defense has a chance to argue that the proffered reason is mere pretext. Ultimately the trial court must decide whether the race-neutral reason is sincere. The same rule applies to peremptory challenges made by the defense (Georgia v. McCollum 1992), and to peremptories made by either side based on gender (JEB v. Alabama 1994). It also applies in civil cases (Edmonson v. Leesville Concrete Company 1991). 

In holding that the prosecutor’s prior record of race-based peremptories in the first four trials was one significant factor pointing to race discrimination in the sixth trial, the court—in a majority opinion written by Justice Kavanaugh and joined by Justices Ginsberg, Alito, Kagan, Breyer, Sotomayor, and Chief Justice Roberts—asserted that it was merely applying established law to “the extraordinary facts of this case.” But the court did not just quickly dispense with the case on the facts. Justice Kavanaugh’s opinion offers a sweeping history of the intersection of equal protection law and jury selection practices, and it emphasizes that a criminal trial must be free from bias in order to comport with equal justice under the law. He also reminds the reader that a historical pattern of racial exclusion is not a new or novel concept in equal protection jurisprudence; an emphasis on patterns formed the basis of the court’s jury selection decision in Swain v. Alabama in 1965. Swain was eventually overturned by Batson for setting too high of a proof threshold for the defense, but its rightful place in the history of jury selection—equal protection law was cemented in the Flowers opinion.

 —Kay L. Levine, professor of law


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