Supreme Court throws out conviction of MS death row inmate

Cheryl Sanders
June 22, 2019

The Supreme Court on Friday threw out the murder conviction and death sentence for a black man in MS because of a prosecutor's efforts to keep African Americans off the jury.

Writing for the court's 7-2 majority, Justice Brett Kavanaugh said, "The numbers speak loudly".

Doug Evans, a district attorney in Winona, Miss., prosecuted Flowers - who prior to this case had no criminal record - six times. Flowers was convicted of killing store owner Bertha Tardy, 59; bookkeeper Carmen Rigby, 45; delivery worker Robert Golden, 42; and part-time employee Derrick Stewart, 16.

In Flowers' sixth trial, the jury was made up of 11 whites and one African American. Three convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct and improper maneuvering by Evans to keep blacks off the jury. The big issue: The justices found that Evans improperly removed black people from juries.

Flowers was convicted in 2010 at his sixth trial.

The Supreme Court was not considering the evidence against Flowers, but instead examining Evans's prosecutorial tactics.

While lawyers have broad discretion, the Supreme Court has banned peremptory challenges used exclusively on the basis of race, ethnicity or sex.

"The Constitution forbids striking even a single prospective juror for a discriminatory objective", Kavanaugh said.

Now it's up to the state of MS whether to try him for a seventh time.

"So in the real world of criminal trials against black defendants, both history and math tell us that a system of race-based peremptories does not treat black defendants and black prospective jurors equally with prosecutors and white prospective jurors equally with prosecutors and white prospective jurors", Kavanaugh wrote. They can strike potential jurors they simply don't want on the jury, and generally those choices cannot be second-guessed.

This Aug. 3, 2017 photo provided by Mississippi Department of Corrections shows Curtis Flowers, who's murder case has gone to trial six times.

But deciding whether a potential juror was struck is a fact-specific inquiry.

In 2016, the Supreme Court ruled in favor of a black Georgia death row inmate who also said black potential jurors were excluded by the prosecution in his case.

In U.S. trials, prosecutors and defense lawyers can dismiss - or "strike" - a certain number of prospective jurors during the jury selection process without stating a reason. As a result, two black jurors were seated, and the juries deadlocked. Those are called peremptory strikes, and they have been the focus of the complaints about discrimination.

Justice Thurgood Marshall, who had been the nation's pre-eminent civil rights attorney, was part of the Batson case majority, but he said the only way to end discrimination in jury selection was to eliminate peremptory strikes. "But this is not an ordinary case, and the jury selection process can not be analyzed as if it were".

Thomas, the only black Supreme Court justice and one of its most conservative members, asked his first questions during an oral argument in three years when the case was argued in March.

Gorsuch did not join sections of Thomas' opinion in which Thomas criticized the Batson decision. "That rule was suspect when it was announced, and I am even less confident of it today". He said that option was the case's lone "redeeming quality" and expressed more sympathy for the "four victims' families" than he did for an American citizen who the Supreme Court said didn't receive his constitutional right to a fair trial that is protected under the Sixth Amendment.

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