Black History Month: Racial Bias in Jury Selection and the Case of Curtis Flowers
Dr. Martin Luther King once wrote “Justice too long delayed is justice denied." One could wonder what Dr. King might say about the curious case of Curtis Flowers. If you have never heard that name, you should certainly “Google” it. In short, Mr. Flowers is an African American man from Mississippi who was tried six times (yes, six, not a typo) for the same crime. Each trial was littered with prosecutorial misconduct and something called Batson violations. Amazingly, four of the six trials ended in a reversal. Two of them ended in mistrials. Add up the time and Mr. Flowers spent 23 years in prison fighting the issue.
By way of background, in Batson v. Kentucky, 476 U. S. 79 (1986), the U.S. Supreme Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial. In most jurisdictions, a prospective juror can be removed for “cause.” Peremptory challenges allow a party to dismiss a prospective juror without cause. They are limited in number and that number varies based on jurisdiction. Batson requires that the reason be “race neutral.” Mr. Flowers’ case is a perfect example of how misuse of peremptory challenges can clash with equal protections afforded under the law.
Curtis Flowers is an African-American man who, in 1996, allegedly murdered four people in Winona1, Mississippi. The same lead prosecutor represented the State of Mississippi in all six trials. In the first three trials, Mr. Flowers was found guilty by the empaneled jury. However, the Mississippi Supreme Court reversed each conviction. Each trial had numerous Batson challenges and allegations of Prosecutorial Misconduct. Each time, the Mississippi Supreme Court sided with Mr. Flowers on the issues and reversed jury verdict. In the third reversal, the Mississippi court stated: “The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.” Flowers v. State, 947 So. 2d 910, 935 (2007). The opinion further stated that the “case evinces an effort by the State to exclude African Americans from jury service.” Id., at 937, 939.
The fourth and fifth trials ended in mistrials due to hung juries. In the sixth trial, the State struck five of the six black prospective jurors. On appeal, Mr. Flowers argued that the State violated Batson in exercising peremptory strikes against black prospective jurors. However, the Mississippi Supreme Court affirmed the conviction with a 5-4 decision. Shortly thereafter, the U.S. Supreme Court granted certiorari on the Batson issue and reversed.
As part of the Supreme Court’s record, juror notes and profiles from all six trials were submitted. Those notes show that in the six trials combined, the State of Mississippi used its peremptory challenges to strike 41 of the 42 black prospective jurors, a statistic that the State admitted at oral argument. In the sixth trial alone, the State exercised peremptory strikes against five of the six black prospective jurors. The Constitution forbids striking one prospective juror for a discriminatory purpose…let alone 41.
On June 21, 2019, Justice Kavanaugh delivered the 7-2 opinion of the Supreme Court, which firmly reinforced the principles set forth in Batson. The Order of the court reversed the guilty verdict and sent the case back to the State of Mississippi. By the time the Order was issued, Mr. Flowers had spent over 20 years in jail. In December 2019, he was released from jail pending the State’s decision as to whether or not it would try him for a seventh time. It did not. In fact, just last year, the State of Mississippi announced that it would pay Mr. Flowers $500,000 ($50,000 each year for 10 years) for his 23 years of imprisonment.
Racial bias and the use of peremptory challenges is something that is currently being addressed by the New Jersey Court System. These issues were recently examined in the case State v. Andujar (A-6-20) and discussed at length in hearings held by the court in November 2021. What comes of those hearings is yet to be determined. The Flowers case showed us that each time there was a racially motivated misuse of the system, there was a balance in place to undo it.
Anyone interested to learn more about Curtis Flowers can do so by listening to the “In The Dark” podcast series that investigated the case.
1 Winona is a small town in northern Mississippi, just off I–55 almost halfway between Jackson and Memphis. The total population of Winona is about 5,000. The town is about 53 percent black and about 46 percent white.
Chad M. Moore is a member of the firm’s Diversity, Equity & Inclusion Committee and a Partner with the General and Automobile Liability Department.