The Montgomery County, Mississippi, prosecutor seems to have made it his career mission to convict Curtis Flowers for four 1986 murders in a small-town furniture store. Over the past two decades, he has tried Flowers for the murders six times.
For each trial, the prosecutor worked hard to remove any Black jurors, who might be more sympathetic to Flowers. Over the course of those six trials, there were only 43 potential jurors who were African-American. The prosecutor made sure only two actually served, even though the town where the murders occurred is 53% Black.
During jury selection, the prosecutor and defense attorney get to screen the jury for potential biases that could keep them from hearing the case fairly.
During the process, either side can strike a potential juror from the pool if they identify such a bias. Each side also gets a limited number of what are called "preemptory strikes," where they can remove a potential juror without a specific cause.
Lawyers can use preemptory challenges for virtually any reason. The idea is to allow a small number of potential jurors to be stricken from the jury simply because they seem unsympathetic or because the lawyer has a hunch that they won't be fair.
What the Supreme Court has long ruled they cannot do, however, is intentionally strike potential jurors based on race. In 1986's Batson v. Kentucky, the high court said that purposeful discrimination in jury selection violates the Equal Protection Clause of the Fourteenth Amendment.
In Flowers' case, the defense argues that the county prosecutor clearly used race as the major factor when dismissing potential jurors, and he did it over and over until he got the juries he wanted.
A 7-2 court finds discrimination in the jury selection
The state of Mississippi argued primarily that the jury selection was not discriminatory; each Black juror was dismissed for race-neutral reasons, as required under Batson.
Led by Justice Brett Kavanaugh, the high court disagreed. It pointed to the fact that the prosecutor focused his attention on the Black jurors in a way that was obviously discriminatory.
For one thing, the average Black juror was asked an average of 29 questions before being stricken from the jury. The white jurors were asked, on average, just more than one.
For another, the Black jurors were removed from the jury for reasons that didn't carry through to the whites. For example, one Black juror was removed because he knew Flowers' father, but a white juror who knew several of Flowers' family members was not removed.
The high court remanded the case to Montgomery County for yet another retrial. That is unfortunate. At some point, due process must protect a defendant from repeatedly racist tactics by a prosecutor. This prosecutor has had six chances to convict Flowers with a fair and ethical process, yet he has repeatedly violated the constitutional protections against racial discrimination. He should get no more chances.