Issues
Did the Mississippi Supreme Court properly consider the prosecutor’s Batson violations in the petitioner’s previous trials when evaluating whether the same prosecutor committed Batson violations in the petitioner’s most recent trial.
In this case, the Supreme Court will decide whether the Supreme Court of Mississippi correctly held that the state prosecutor in Curtis Flowers’ criminal jury trial did not violate Batson v. Kentucky when he struck black prospective jurors. Flowers argues that the state court failed to properly consider the prosecutor’s history of Batson violations in his specific case, and that these violations—along with other indications of racial discrimination—demonstrate the prosecutor’s purposeful racial discrimination against black prospective jurors. Conversely, Mississippi argues that the state court properly weighed the prosecutor’s history of violations and correctly determined that the prosecutor’s reasons for striking black jurors were legitimate. The outcome of this case will help further define the scope of the Batson doctrine and determine how heavily a court should weigh an attorney’s history of Batson violations when assessing a Batson claim.
Questions as Framed for the Court by the Parties
Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky in this case.
Facts
Curtis Flowers (“Flowers”) has been tried six times in relation to four 1996 murders in Winona, Mississippi. Flowers’ first two trials (“Flowers I” and “Flowers II”) each resulted in a guilty verdict and death sentence, but the Mississippi Supreme Court reversed and remanded both decisions on the grounds that the trials had been tainted by inadmissible evidence. Flowers’ third trial (“Flowers III”) also resulted in a guilty verdict and death sentence, but the Mississippi Supreme Court again reversed and remanded on the grounds that the State’s prosecutor had discriminated against black prospective jurors during jury selection in violation of Batson v. Kentucky.
Batson v. Kentucky holds that, when a party objects to another party’s strike of a prospective juror on the basis of race during jury selection, a court must engage in a three-step inquiry. First, the objecting party must make an initial showing that the striking party struck the prospective juror on the basis of race. Next, the burden shifts to the striking party to provide a race-neutral reason for striking the prospective juror. Finally, the court must determine whether that reason was valid or merely pretextual.
Flowers’ fourth and fifth trials (“Flowers IV and Flowers V”) both resulted in mistrials because the juries were not able to come to unanimous verdicts.
In his sixth trial (“Flowers VI”), a jury again found Flowers guilty and sentenced him to death. The Mississippi Supreme Court affirmed this decision, leading Flowers to appeal to the United States Supreme Court, which granted certiorari. The Court vacated the Mississippi Supreme Court’s judgment and remanded the case for reconsideration in view of Foster v. Chatman, a case addressing Batson and jury discrimination that was decided after Flowers VI.
On remand, Flowers argued again that the State’s prosecutor, Doug Evans, had discriminated against black prospective jurors during the jury selection process in violation of Batson. Specifically, Flowers contended that first, Evans “disparate[ly] question[ed]” black prospective jurors and second, gave only “pretextual reasons” when striking five black prospective jurors from the jury pool.
Furthermore, in determining whether a prosecutor has made a Batson violation, Flowers claimed, Foster requires a “totality-of-the-circumstances approach.” Flowers accordingly argued that Evans’ past Batson violations in Flowers II and Flowers III must factor into the Batson analysis.
The Mississippi Supreme Court, however, refused to find any Batson violation. While acknowledging that Evans posed more questions to black prospective jurors than white prospective jurors, the court stated that this fact alone was not determinative of “purposeful discrimination.” The court also found that the State had adequate non-pretextual reasons for removing those five black prospective jurors from the jury pool.
Additionally, the court determined that Foster involved “exceptional circumstances” and thus had no bearing on Flowers’ case. In Foster, the court explained, the prosecution maintained a “despicable” file on prospective jurors that was “replete with documents referencing race.”The court therefore concluded that the prosecution in Foster exhibited a “policy” of removing black prospective jurors from the jury pool, and that this policy “completely undermined” the prosecution’s non-pretextual reasons for using their peremptory strikes. In so distinguishing Foster from the case at hand, the court concluded that the prosecutor’s past Batson violations were not enough to defeat his non-pretextual reasons for removing black prospective jurors from the jury pool.
Flowers raised twelve other issues for consideration, but the court ruled against Flowers on each. The court accordingly reinstated Flowers’ murder convictions and death sentence. The United States Supreme Court granted certiorari on November 2, 2018 on the sole issue of whether the Mississippi Supreme Court correctly applied Batson.
Analysis
HOW HEAVILY SHOULD THE COURT WEIGH PRIOR BATSON VIOLATIONS IN THIS CASE?
Flowers asserts that Batson and its progeny require a court to consider a prosecutor’s history of racial discrimination in evaluating the third step of a Batson claim, and argues that the Mississippi Supreme Court did not properly do so when evaluating the prosecution’s rationale for striking black jurors. Flowers notes that across five of his trials, the prosecutor struck forty-one of the forty-three black prospective jurors, and in two of these trials, either the trial court or the appellate court held that the prosecutor violated Batson through racially discriminatory jury selection. Flowers emphasizes that the reasons that the Mississippi Supreme Court provided for not seriously weighing this history of racial discrimination fail to properly follow Batson and its progeny.
First, Flowers argues that the court’s deference to the trial court is inappropriate here because the record indicates that the trial court did not consider the prosecutor’s history of racial discrimination. Second, the Mississippi Supreme Court distinguished this case from Supreme Court precedent based on factual disparities, which, Flowers asserts, is a “fundamental error” because such analysis does not focus on the goal of Batson to eliminate discrimination. Flowers contends that, in merely acknowledging but not seriously considering this history of racial discrimination, the Mississippi Supreme Court failed to follow the Supreme Court’s precedent, which requires courts to consider all relevant circumstances when determining if racial discrimination has occurred.
In response, the State of Mississippi (“Mississippi”) acknowledges that Batson and its progeny require a court to consider a prosecutor’s prior Batson violations, but argues that the Mississippi Supreme Court properly considered the prosecutor’s violations in this case. Mississippi asserts that Flowers’ central argument is that, due to a past Batson violation, the prosecutor should not have been permitted to strike prospective jurors in the trial at issue. Mississippi contends that this assertion does not adhere to Supreme Court precedent. Furthermore, Mississippi argues that Flowers already received relief from the prior Batson violation by receiving a new trial; therefore, to provide relief in the current trial based on this history of Batson violations would be to grant relief twice for the same violation.
Additionally, Mississippi contends that in evaluating the third part of a Batson claim—whether the prosecution’s proffered race-neutral reason for striking prospective jurors was legitimate or pretextual—a court must give deference to the factual determinations of the trial court, unless those determinations were clearly erroneous. Mississippi argues that these determinations—that the prosecutor did not purposefully racially discriminate against prospective jurors and did not violate Batson—were not clearly erroneous, and thus the court must give deference to the trial court’s determinations.
DID SUFFICIENT EVIDENCE OF PURPOSEFUL RACIAL DISCRIMINATION EXIST TO CONSTITUTE A BATSON VIOLATION?
Flowers contends that the circumstances of Flowers VI when considered as a whole demonstrate that the prosecutor purposefully racially discriminated against prospective jurors in violation of Batson. In support of this assertion, Flowers first points to the initial showing of racial discrimination that the defense made at trial. There, the defense noted that the prosecutor struck eighty-three percent of black prospective jurors but only five percent of white prospective jurors. Furthermore, Flowers asserts that the prosecutor’s history of racial discrimination not only shows a pattern of discrimination in this case, but impacts the prosecutor’s credibility by demonstrating his willingness to be dishonest about his purpose for striking jurors. Flowers contends that although this credibility assessment is not dispositive, it should be factored into the Court’s analysis of whether the prosecutor’s proffered race-neutral reasons are valid. Additionally, Flowers argues that the prosecutor disproportionately questioned black prospective jurors during jury selection compared to their white counterparts, noting that the prosecutor asked 145 questions of the black jurors that he struck but only 12 total questions of the white jurors that he kept on the jury. Moreover, Flowers points out that when white prospective jurors and black prospective jurors indicated the same kind of possible bias, the prosecutor consistently questioned black jurors but not white jurors. Flowers contends that the state court did not adequately consider this large disparity in questioning.
Flowers also contends that the reasons that the prosecutor offered for striking black jurors were pretextual because they included factual errors and were implausible in nature. For example, Flowers asserts that the prosecutor struck one black juror because she allegedly knew Flowers’ sister and had previous wage disputes with the business in which the crime occurred; according to Flowers, both of these assertions were false. Furthermore, Flowers argues that the prosecutor relied on improbable sources of bias for black jurors but did not inquire into sources of actual bias in white jurors. Flowers contends that because the Mississippi Supreme Court did not properly weigh these misstatements of fact and implausible reasons for striking jurors, the court did not fully analyze whether these reasons were legitimate and not merely pretextual. Although Flowers notes that the Mississippi Supreme Court correctly found that the prosecutor provided one reason for each struck juror that did not explicitly apply to a white juror, given the prosecutor’s prior Batson violations in this case, the court should have looked beyond these individual reasons to the circumstances of the case as a whole.
Mississippi, on the other hand, argues that the prosecutor did not purposefully racially discriminate against black prospective jurors, and that the record fails to show discrimination sufficient to constitute a Batson violation. Mississippi contends that, compared to recent cases in which the Supreme Court has held there to be a Batson violation, the prosecutor’s actions in this case do not rise to the level of a Batson violation. For example, Mississippi notes that there was no jury file that visibly indicated that jurors were being differentiated based on race as there was in Foster, nor was there a policy of discrimination to which the prosecutor appeared to be adhering, Moreover, Mississippi argues that the Mississippi Supreme Court’s analysis of the questioning of different prospective jurors was sound and that the record does not show that jurors were racially discriminated against based on disparate questioning. Instead, Mississippi asserts, there were legitimate reasons for the prosecutor to ask further questions of the black prospective jurors based on their responses to questions that indicated a possible inability to remain impartial. Mississippi argues that, in reviewing the prosecutor’s actions during jury selection, the Mississippi Supreme Court properly considered all of the circumstances that could affect whether the State racially discriminated against prospective jurors, including explicitly mentioning the prosecutor’s prior Batson violations in the case. The Mississippi Supreme Court, Mississippi continues, properly concluded that these violations did not override the trial court’s factual findings on which the decision that there was no Batson violation relied.
Additionally, Mississippi contends that the prosecutor’s race-neutral reasons for striking black prospective jurors were not pretextual, but legitimate under Batson. Mississippi highlights the multiple reasons that the prosecutor provided for striking these jurors, including that they were related to Flowers, admitted to lying to the court, and were against, or not sure about, the death penalty. None of these reasons, Mississippi emphasizes, applied to any of the seated white jurors. Thus, Mississippi argues, the Mississippi Supreme Court was not acting clearly erroneously when it determined that the prosecution did not purposefully racially discriminate against black prospective jurors during jury selection. Consequently, Mississippi argues that the Supreme Court should uphold the state court’s conclusion that the State did not violate Flowers’ Batson-related rights.
Discussion
WHAT PRACTICES FACILITATE IMPARTIAL JURIES?
In support of Flowers, a group of former Justice Department officials (“the Officials”) argue that nondiscriminatory jury selection is necessary to preserve the public’s faith in the criminal justice system. The Officials contend that racially discriminatory jury selection causes the public to distrust jury verdicts, which in turn undermines the notion that juries can serve as a safeguard against arbitrary uses of state power. The Officials state that this mistrust can manifest in public unrest when the public perceives that a jury verdict is unfair. By way of example, the Officials claim that public anger has followed in cases where all-white juries have acquitted white law enforcement officers of violent crimes or killings against black individuals. In contrast, the Officials state, no such public outcry followed in a different case where a racially diverse jury similarly acquitted a white police officer.
The Officials also contend that racially discriminatory jury selection undercuts the democratic ideal of representative juries. For one, argue the Officials, fairness requires that juries be representative of the defendant’s “peers or equals,” because such juries are more likely to act impartially and thereby provide a check against “biased government action.” Moreover, the Officials continue, purposefully excluding a particular segment of the citizenry from jury services suggests that that segment is not qualified to participate in the criminal justice system. The Officials claim that this exclusion leads to an “intolerable” divide where a group of citizens is subject to a system that it is prevented from participating in. Racially discriminatory jury selection, conclude the Officials, is tantamount to “state-sponsored group stereotypes.”
In response, Mississippi counters that peremptory challenges allow both parties to remove jurors whom they suspect will be biased against their position. Although a party may strike a prospective juror for cause, Mississippi argues that there are many other reasons apart from cause that justify striking a prospective juror. Mississippi therefore concludes that peremptory challenges are necessary to ensure that the jurors who are ultimately selected will be impartial. For example, Mississippi claims that, in this case, peremptory challenges enabled the prosecution to remove black prospective jurors who personally knew Flowers or members of his family.
Mississippi recognizes that disparate questioning of black prospective jurors can be indicative of discriminatory jury selection, , but claims that such questioning is sometimes necessary in order to determine whether or not an individual can decide a case fairly, Mississippi asserts that a prosecutor might have nondiscriminatory motivations for posing more questions to certain individuals, for example, to ask follow up questions. In the case at hand, Mississippi claims that the prosecution’s questioning of black prospective jurors revealed that some of those individuals were unwilling to impose a death sentence, , and that another individual was untruthful on her jury questionnaire, Further, Mississippi argues that because trial judges observe this voir dire process first-hand, whereas reviewing courts look only at trial transcripts, an appellate court reviewing a Batson challenge should defer to the trial court’s findings. When observing the voir dire process, Mississippi continues, the trial judge is able to observe intangibles such as the prosecutor’s demeanor, and such first-hand observation provides the most insight into whether the prosecutor is acting in a discriminatory manner.
WHAT IS THE SCOPE OF THE BATSON ANALYSIS?
Arguing in support of Flowers, the NAACP Legal Defense & Educational Fund, Inc. (“NAACP”) contends that courts evaluating Batson violations should consider “all relevant circumstances,” including context and circumstances outside the immediate case, in order to ensure the legitimate use of peremptory challenges. The NAACP claims that in this instance, relevant context includes the particular prosecutor’s past history of discriminatory behavior. In particular, the NAACP asserts that the prosecutor here has disproportionately used peremptory strikes against black prospective jurors throughout his career, , and actually violated Batson in Flowers’ earlier trials, This broad evaluation is necessary, argues the NAACP, because prosecutors can easily supply race-neutral reasons for striking a black prospective juror from the jury pool, thereby circumventing Batson. According to the NAACP, several empirical studies have confirmed that peremptory challenges are used disproportionately against black prospective jurors, suggesting that prosecutors exploit this opportunity to evade Batson.
Mississippi responds that if a prosecutor’s past Batson violations can be used to “automatically” deprive him or her of using peremptory challenges in a later trial, then it is less likely that the ultimate jury will be impartial. Furthermore, Mississippi argues that when a prosecutor’s past Batson violations have already been redressed, as they were in Flowers’ case, those prior violations cannot be the main foundation of subsequent Batson claims. Mississippi asserts that relying on those same prior violations for subsequent claims would effectively open the door for defendants to obtain the same relief multiple times. Accordingly, Mississippi concludes that a court cannot use prior Batson violations to “automatically assume” that similar violations occurred in a subsequent trial; rather, once particular violations have been redressed, a defendant must use events from only the subsequent trial when assessing a Batson claim related to that trial. While acknowledging that a prosecutor’s past Batson violations can factor into such analysis, Mississippi argues that past violations cannot be determinative.
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Acknowledgments
Additional Resources
- Adam Liptak, When Does Kicking Black People Off Juries Cross a Constitutional Line?, The New York Times (Feb. 18, 2019).
- Madeleine Baran and Parker Yesko, Supreme Court Agrees to Hear Curtis Flowers Appeal, American Public Media (Nov. 2, 2018).
- Jerry Mitchell, US Supreme Court Will Hear Death Row Inmate Curtis Flowers’ Review, Mississippi Clarion Ledger (Nov. 2, 2018).