In Flowers v. Mississippi, No. 17-9572, __U.S.__ , 2019 WL 2552489 (June 21, 2019), the Court reversed a death sentence because of a violation of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits the racially discriminatory use of peremptory challenges.
Curtis Flowers was tried in six separate trials, by the “same lead prosecutor” for an offense that occurred in 1996. The first trial was reversed for prosecutorial misconduct; the second and third trials involved judicial findings of Batson violations; and after the fourth and fifth trials resulted in hung juries, in the sixth trial, the prosecutor struck five of the six black prospective jurors, and Flowers was convicted. Op. at 1-2. In a 7-2 decision, authored by Justice Kavanagh, the Court reversed the decision of the Mississippi Supreme Court affirming the conviction.
The Court cited four critical facts that taken together required reversal. “First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck …. Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror … who was similarly situated to white prospective jurors who were not struck by the State.” Op. at 2-3.
The Court ruled that it could consider the events of the first five trials, in assessing whether there was a pattern of racial exclusion of jurors, based on Swain v. Alabama, 380 U.S. 202 (1965), which “held that a defendant may prove racial discrimination by establishing a historical pattern of racial exclusion of jurors in the jurisdiction in question.” Op. at 19. “Indeed, under Swain, that was the only way that a defendant could make out a claim that the State discriminated” in exercising peremptory challenges. In Batson, the Court had “ruled that Swain had imposed too heavy a burden on defendants,” and lowered the burden, but still permits consideration of “historical evidence of the State’s discriminatory peremptory strikes from past trials in the jurisdiction, just as Swain had allowed.” Op. at 19-20.
Regarding the events at the sixth trial, the Court reasoned that the prosecutor’s acceptance of one of the six prospective black jurors did not end the Batson inquiry because “a prosecutor might do so in an attempt ‘to obscure the otherwise consistent pattern of opposition to’ seating black jurors.” Op. at 22 (quoting Miller-El v. Dretke, 545 U.S. 231, 250 (2005)).
The sixth trial was also marked by the prosecutor’s disparate questioning of the 5 stricken prospective black jurors and the 11 seated white jurors. The prosecutor asked 145 questions of the 5 stricken black jurors, but only 12 questions of the 11 seated white jurors. “On average, therefore, the State asked 29 questions to each struck black prospective juror. The State asked an average of one question to each seated white juror.” Op. at 23. “[D]isparate questioning and investigation of prospective jurors on the basis of race can arm a prosecutor with seemingly race-neutral reasons to strike the prospective jurors of a particular race.” Op. at 25. “[B]y asking a lot of questions of the black prospective jurors or conducting additional inquiry into their backgrounds, a prosecutor can try to find some pretextual reason—any reason—that the prosecutor can later articulate to justify what is in reality a racially motivated strike.” Id. But by not doing the same for white prospective jurors, “the prosecutor can try to distort the record so as to thereby avoid being accused of treating black and white jurors differently.” Op. at 25 (citation omitted).
The Court also relied on the prosecutor’s apparent discriminatory strike of a particular black prospective juror (during the sixth trial) because “the Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Op. at 26. The Court concluded that the prosecutor’s proffered reasons for excluding this black prospective juror were an apparent pretext because the reason for striking the black panelist applied just as well to an otherwise-similar nonblack panelist who was permitted to serve. Op. at 27.
Justice Alito wrote a short concurrence. Regarding the prosecutor’s strikes of 5 of the 6 prospective black jurors at Flowers’s sixth trial, he said: “If another prosecutor in another case in a larger jurisdiction gave any of these reasons for exercising a peremptory challenge and the trial judge credited that explanation, an appellate court would probably have little difficulty affirming that finding.” Concurrence, Alito, J., at 2. But Justice Alito said this case is “likely one of a kind” because “[i]n all of the five prior trials, the State was represented by the same prosecutor, and … many of those trials were marred by racial discrimination in the selection of jurors and prosecutorial misconduct. Nevertheless, the prosecution at the sixth trial was led by the same prosecutor, and the case was tried in Montgomery County where, it appears, a high percentage of the potential jurors have significant connections to either petitioner, one or more of the victims, or both.” Id. at 1-2.
Justice Thomas filed a dissent. Justice Gorsuch joined Parts I-III of the dissent, but not in Part IV in Justice Thomas criticizes the Batson decision.