The Supreme Court, Peremptory Challenges, and the Case of Flowers v. Mississippi

June 19, 2019 Updated: June 20, 2019


The Supreme Court is set to rule on an important case in the coming weeks. The case involves Curtis Flowers, who was convicted and sentenced to death for allegedly murdering four people on July 16, 1996. Flowers has maintained his innocence throughout.

Flowers, a black male, was tried six times over two decades for the murder of four people in Mississippi. The first two trials resulted in guilty verdicts and a death sentence. However, the Mississippi Supreme Court reversed and remanded these decisions, based on evidentiary grounds (inadmissible evidence was admitted and had tainted the trials).

Flowers was also convicted and sentenced to death in the third trial, but the Mississippi Supreme Court reversed the decision on the grounds that the prosecutor discriminated against black prospective jurors during jury selection. The fourth and fifth trials resulted in mistrials (no unanimous verdict), while the sixth trial resulted in a conviction and death sentence, which the Mississippi Supreme Court affirmed.

Flowers appealed the decision to the Supreme Court. Initially, the court vacated the state Supreme Court’s judgment and remanded the case. When the Mississippi Supreme Court reinstated Flowers’s conviction and death sentence, the Supreme Court agreed to hear the case and to decide whether the Mississippi Supreme Court erred in how it applied the case of Batson v. Kentucky in Flowers’s case.

In the Batson case, the Supreme Court ruled that “the use of peremptory challenges to remove a potential juror from the jury pool based on race violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.”

If a defendant shows that race was the reason why potential jurors were excluded via peremptory challenges (that is, rejected without the need to give a reason), the burden shifts to the state to come forward with a race-neutral explanation for the exclusion.

Flowers’s argument revolves around the conduct of District Attorney Doug Evans and Flowers’s claim that the Mississippi Supreme Court failed to properly apply the Batson ruling to his case. Specifically, Flowers argues that his constitutional rights were violated during the sixth trial because Evans allegedly rejected five of the six black jurors during the jury selection process solely because of their race.

According to Flowers’s attorneys, Evans’s alleged nondiscriminatory reasons for striking the black jurors were just a cover for racial discrimination. In support of his position, Flowers’s counsel point to Evans’s history.

More particularly, according to APMreports:

“They point out that Evans has a history of racial bias in jury selection: Twice before, he’s been found by courts to have violated Batson in Flowers’ case. They recount Evans’s record throughout Flowers’ many trials: He struck every single black juror at Flowers’ first and second trials and removed only black jurors in the third and fourth.

“Evans had already shown himself, at least twice in this same case, to be willing both to violate the Constitution and to try to conceal his racial motivation. Given that very proximate history of discrimination and dissembling, any court reviewing the evidence of discrimination was obliged to be skeptical of Evans’s stated reasons.

“The lawyers make the case that, at Flowers’ sixth trial, ‘Evans did not renounce racial discrimination, but merely made more efforts to conceal it.’ They say that Evans investigated black prospective jurors more rigorously, that he asked the ones he struck an average of 29 questions each when he asked the white ones he seated only one each, that he misrepresented their statements and, finally, that he struck them even though they were no more problematic than white jurors he accepted. The U.S. Supreme Court has reversed convictions based on similar arguments in the past.”

In other words, Flowers contends that, per Batson, the Mississippi Supreme Court failed to consider Evans’s history and all relevant circumstances when deciding whether he engaged in racial discrimination during jury selection and whether his race-neutral reasons were adequate.

In response, the State of Mississippi makes several arguments, one of which is that Flowers already received a new trial for Evans’s previous Batson violations and that it would be duplicitous for the Supreme Court to grant another new trial for the same violations. Moreover, it would be improper for the court to assume that a Batson violation occurred in the sixth trial just because it occurred in previous trials.

From a practical matter, it’s not very difficult for a lawyer to provide a race-neutral, or nondiscriminatory, reason for striking a prospective juror.

As The New York Times reports: “Those reasons, the Supreme Court has said, do not have to be ‘persuasive, or even plausible.'”

Some reasons, according to The New York Times, that the courts have found sufficient include that a prospective juror had poor posture, was sullen or talkative, was or wasn’t religious, lived in a poor part of town, or had a beard. Therefore, it’s abundantly clear that this isn’t too difficult a “standard” to satisfy.

The Supreme Court’s decision is not only important to Flowers, whose life hangs in the balance, but also to prospective jurors, legal practitioners, and the community at large. The court recognized this in the Batson case, when it stated:

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. … Discrimination within the judicial system is most pernicious because it is a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.”

The Supreme Court will likely issue its opinion on this important issue in the not-too-distant future. When it does so, it will hopefully provide more clarity on how to properly apply Batson when discrimination in the jury selection process is suspected.

Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Western Journal, American Thinker, and other online publications.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.