WASHINGTON — Doug Evans, a white prosecutor in Mississippi, has spent decades trying to convict Curtis Flowers, a black man, of the 1996 murders of four people inside a furniture store. Over the course of six trials, Evans relied on a signature tactic: he worked diligently to keep black people off Flowers’s juries.The sixth time, Flowers was convicted and sentenced to death. But he appealed and eventually the case reached the Supreme Court in a case that attracted a great deal of attention, including being featured on a season-long podcast as well as in episodes of a documentary series.In a lopsided decision, the Supreme Court ruled Friday that Evans had violated the Constitution. Only two of the court’s most conservative members — Justices Clarence Thomas and Neil Gorsuch — dissented. And writing the majority decision was another of the court’s conservatives, its newest — Justice Brett Kavanaugh, in perhaps his most significant role on the court since he joined it last fall after an unusually bitter confirmation battle that included the fervent opposition of Democrats.As is customary, Chief Justice John Roberts gave no reason for assigning the majority opinion to Kavanaugh. But the high-profile assignment might have been prompted by Kavanaugh’s long-standing interest in the issue. When he was a law student at Yale, Kavanaugh wrote an article in The Yale Law Journal calling for vigorous enforcement of a 1986 Supreme Court decision barring race discrimination in jury selection.So it was Kavanaugh who felt the sting of his fellow conservatives, who called his opinion “manifestly incorrect.”“If the court’s opinion today has a redeeming quality,” Thomas wrote, “it is this: The state is perfectly free to convict Curtis Flowers again.”In ruling for Flowers, Kavanaugh said he was merely applying settled legal principles. “We break no new legal ground,” he wrote. In a concurring opinion, Justice Samuel Alito wrote that the case was “likely one of a kind.”Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process
Kavanaugh said Evans had run afoul of one of the Constitution’s most basic commands. “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process,” he wrote.The ruling was the latest example of a split between President Donald Trump’s two Supreme Court appointees. Gorsuch, who joined the court in 2017, signed Thomas’ caustic dissent, which said Flowers was plainly guilty and that Evans had offered ample race-neutral reasons for excluding potential jurors.One of Flowers’s lawyers, Sheri Lynn Johnson, urged state officials to release her client.“A seventh trial would be unprecedented and completely unwarranted given both the flimsiness of the evidence against him and the long trail of misconduct that has kept him wrongfully incarcerated all these years,” Johnson said in a statement. “We hope that the state of Mississippi will finally disavow Doug Evans’ misconduct, decline to pursue yet another trial and set Mr. Flowers free.”Evans did not respond to a request for comment.The court’s decision turned on the scope of a 1986 decision, Batson v. Kentucky, in which the court carved out an exception to the centuries-old rule that peremptory challenges during jury selection — ones that do not require giving a reason — are completely discretionary and cannot be second-guessed.But the court ruled that there was one exception, and it was race. Lawyers accused of discriminating on the basis of race in jury selection, the court said, must provide a different explanation.On Friday, Kavanaugh rejected Evans’ reasons and cleared the way for a seventh trial of Flowers should prosecutors wish to pursue one. Flowers is likely to remain in state custody in the meantime.Thomas, in a part of his dissent in which he spoke only for himself, wrote that he had profound doubts about whether the Batson decision had been correctly decided in the first place.Kavanaugh had no such doubts. He said Batson required that Flowers’ conviction be overturned for several reasons, starting with Evans’ history.
Death row inmate Curtis Flowers is seen in this Mississippi Department of Corrections photo from Mississippi State Penitentiary Unit 29 in Parchman, Mississippi, U.S., July 1, 2010.
Mississippi Department of Corrections/Handout via REUTERS/File Photo
In Flowers’s first four trials, held between 1997 and 2007, Evans used all 36 of his peremptory challenges to strike black potential jurors. Three of those trials ended in convictions reversed on appeal, and one in a mistrial.“The state’s actions in the first four trials necessarily inform our assessment of the state’s intent going into Flowers’ sixth trial,” Kavanaugh wrote. “We cannot ignore that history. We cannot take that history out of the case.”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 a mistrial.At the sixth trial, the one directly at issue in the Supreme Court case, Flowers v. Mississippi, No. 17-9572, Evans accepted the first black prospective juror and struck the next five.“The state’s decision to strike five of the six black prospective jurors,” Kavanaugh wrote, “is further evidence suggesting that the state was motivated in substantial part by discriminatory intent.”During jury selection, Evans questioned black prospective jurors particularly closely, asking them an average of 29 questions each. He asked the 11 white jurors who were eventually seated an average of one question each.Kavanaugh said that pattern was also problematic. “One can slice and dice the statistics and come up with all sorts of ways to compare the state’s questioning of excluded black jurors with the state’s questioning of the accepted white jurors,” he wrote. “But any meaningful comparison yields the same basic assessment: The state spent far more time questioning the black prospective jurors than the accepted white jurors.” In dissent, Thomas responded that both the prosecution and defence asked more questions of the potential jurors they sought to exclude. “Moreover,” he wrote, “the majority forgets that correlation is not causation.”The jury at the sixth trial, made up of one black and 11 white jurors, convicted Flowers and sentenced him to death. The Mississippi Supreme Court affirmed the conviction and sentence, accepting Evans’ explanations for his latest strikes.Evans said he excluded black potential jurors for a variety of reasons including that they knew witnesses or members of Flowers’ family, had been sued by the furniture store where the murders took place, had qualms about the death penalty or had turned up late for jury selection.Kavanaugh said that some of those reasons were false and that Evans did not ask detailed questions of white jurors with comparable connections to the case.“When considered with other evidence of discrimination,” Kavanaugh wrote, “a series of factually inaccurate explanations for striking black prospective jurors can be telling. So it is here.”Flowers’ 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.Thomas wrote that he was concerned the Supreme Court had agreed to hear the case because it had “received a fair amount of media attention.”“If so,” he wrote, “the court’s action only encourages the litigation and relitigation of criminal trials in the media, to the potential detriment of all parties — including defendants.”“The media often seeks ‘to titillate rather than to educate and inform,’” he wrote, quoting an earlier opinion. “Any appearance that this court gives closer scrutiny to cases with significant media attention will only exacerbate these problems and undermine the fairness of criminal trials.”