Flowers v. Mississippi – Striking Prospective Jurors Because Of Race

Mississippi has tried Curtis Flowers six times for allegedly murdering four employees at a furniture store.  Flowers is black and three of the four alleged victims were white.

Mississippi has not been able to convict Flowers because the prosecutor(s) handling each trial are flaming racists who got caught doing something no trial attorney should do.  At the first two trials, they struck (e.g., removed with a peremptory challenge) all of the qualified black prospective jurors.  Both juries convicted Flowers and sentenced him to death, but the Mississippi Supreme Court reversed the convictions because of prosecutorial misconduct.  At the third trial, the State used all 15 of its challenges to strike black prospective jurors, and the jury again convicted Flowers and sentenced him to death.  The Mississippi Supreme Court reversed again, this time because of a violation of Batson v. Kentucky, which held that once a defendant establishes a prima facie case of discrimination concerning the manner in which challenges are being used, the State must give race-neutral explanations for its challenges, and the trial judge must determine whether those reasons are valid or just a pretext for discrimination.  The fourth and fifth trials ended in mistrials.  At the fourth trial, the State used 11 challenges against black prospective jurors.  No racial information concerning the prospective jurors at the fifth trial exists (or it was at least conveniently omitted from the State’s papers).  At the sixth trial, the State used six challenges.  Five were directed against black prospective jurors.  One black juror was seated.  Flowers raised a Batson claim, but the trial judge found that the State’s proffered explanations were race-neutral.  The jury convicted Flowers and sentenced him to death, and the Mississippi Supreme Court affirmed.  The United States Supreme Court vacated the judgment and remanded the case, but the Mississippi Supreme Court affirmed again.

The United States Supreme Court reversed, finding that the surrounding facts and circumstances demonstrate that the trial judge’s conclusion at the sixth trial that the State’s reasons for striking one of the black prospective jurors were race-neutral was clearly erroneous.  In doing so, the Court noted that four categories of evidence factored into its decision, where the State had a persistent pattern of striking black prospective jurors at each trial. 

First, the Court found that the history of the State’s used of its peremptory challenges in the first four trials strongly supported the conclusion that the manner in which the State used its challenges at the sixth trial was racially motivated.  Next, the manner in which the State used its challenges at the sixth trial followed the same pattern as the first four trials.  Additionally, the Court found that disparate questioning of prospective jurors can show discriminatory intent.  At the sixth trial, the State devoted substantially more time to questioning black prospective jurors that the white jurors who were seated in the box.  The State asked 145 questions of black prospective jurors, but only 12 questions of 11 white seated jurors.  The vastly disparate questioning of the two groups of jurors strongly suggested discriminatory intent.  Finally, as noted above, the trial judge’s findings concerning one of the black prospective jurors was determined to be clearly erroneous.  The State said that this prospective juror was struck because she knew several defense witnesses and worked at the same store where Flowers’ father worked.  However, three white jurors also knew many of the people involved in the case, and the State did not question them about their respective connections to witnesses.  White prospective jurors also had connections to Flowers’ family, but the State did not explore these relationships in any meaningful way.

Many prosecutors and defense attorneys allow race to factor into jury selection, and this is usually a mistake.  For example, a particular ethnic group may be deemed as too conservative and therefore too willing to convict, so the defense attorney may try to remove a prospective juror of that ethnicity from the panel.  Another erroneous assumption is that members of a particular racial or ethnic group may be unwilling to convict one of their own.  More often than not, such assumptions turn out to be false.  The fact is that it is frequently impossible to know how a prospective juror may ultimately vote, even after they are examined by the trial judge and attorneys.  For one thing, prospective jurors are questioned before hearing the evidence in the case, and the presentation can – and often does – change their usual views.  In fact, there is a considerable amount of guesswork in jury selection.  Indeed, in almost 30 years of practice, the best advice I have ever been given about jury selection is to try to fill the box with a group of people who look like they cannot agree on anything, and then play for a hung jury.

Finally, I certainly hope that the ethics authorities in Mississippi are carefully reviewing the conduct of the prosecutors who handled Flowers’ trials.  People like that should not be licensed to practice law.  Someone in authority should also be looking at the conduct of the trial judge, who is obviously no judicial luminary.

James S. Friedman, Esq., is a criminal trial attorney based in New Brunswick New Jersey.  Mr. Friedman tries criminal cases in all state and federal courts in New Jersey and New York City.  If you have a criminal case in one of these jurisdictions and are thinking seriously about going to trial, call Mr. Friedman to start mapping out your most effective trial strategy.


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