Supreme Court Debrief: Flowers v. Mississippi

[Vida:] How are you feeling
about the Flowers decision? [Abbe:] Well, I’m pleased, but
not entirely surprised, based on what I read about the argument. It seemed as if there were five, maybe six Justices that were going the way of Curtis Flowers, how about you? – Well, as a Defense Attorney, and someone who cares
about racial justice, I am relieved and elated. I didn’t know with this court
where were gonna end up, but I am happy with this outcome. – We are both lifelong die-hard career indigent criminal defense lawyers, so let’s be up front about that. We’re also law professors, who know a little something
about the law of jury selection. – And we’ve both written about
the peremptory challenge, and Batson.
– We have, we have. We’ve both written about
from different perspectives. Yours from a criminal
procedure perspective, and mine from a legal ethics perspective. So we bring that to the table as well, and we both combined have tried too many jury trials to count. So we’re here to discuss
the Curtis Flowers case. Let me offer a little
background on the case. This was a murder case that happened in the small town of Winona,
Mississippi, population 5000. Four people in a furniture
store were murdered. Can you explain a little bit, Vida? There were six trials,
that’s rather extraordinary, one prosecutor, and what the outcome was of those previous trials, and why? – Sure, it’s a remarkable case. There were, in the first three trials, Mr. Flowers was convicted
in each one of those trials, and there were no black
jurors sitting on the trial. This took place in a
small town in Mississippi, Mr. Flowers is black, three of
the four victims were white, and the prosecutor who
prosecuted all six trials was also white. He managed to get black jurors off of the first three trials. The fourth and fifth trial
had some black jurors on it, and those trials hung, and
mistrials were declared. So when there were black jurors, this wasn’t an easy conviction,
and in the sixth trial the prosecutor was able
to use five out of his six peremptory strikes to exclude
black jurors from the trial. – He apparently let the
first African American prospective juror remain on the jury and struck everybody else. This is a small town, I should point out. It’s 5000 residents. It’s a relatively small
prosecutors’ office, with four or five full-time
prosecutors, all white men, and I should also point
out that Curtis Flowers has maintained his innocence throughout these many
years and many trials. – And the demographics of
the county are important. 53% of the county is African American, and so the fact that there were no African American jurors
in the first three trials is really troubling. – The cases, in turn, were reversed, for pretty much the same sets of reasons. Either the discriminatory
exercise of peremptory challenges, which are challenges
striking prospective jurors for no reason at all. But they’re not supposed to be exercised for race-based reasons. And prosecutorial misconduct, in general. The cases went up to the
Mississippi Supreme Court a couple of times, and went
up to the U.S. Supreme Court before as well. This was the sixth trial, the
case that was just decided today by the U.S. Supreme Court, and the argument, the
issue in the sixth case, was the prosecutor’s
racially discriminatory exercise of peremptory challenges. – During this jury selection process, there are two types of ways
that jurors can be excluded. One is for cause, and that’s
when a juror reveals that, he or she can’t be fair for some reason. Maybe he knows the victims, maybe he’s friends with
the defense attorney, maybe he refuses to apply
the presumption of innocence. And there an unlimited
number of for cause strikes. And either side can ask the judge to strike a juror for cause. – And that’s because the jury
has to be fair and impartial. A defendant has the right
as a matter of due process to have a fair and impartial juror judge his or her case, sorry, go ahead. – No, perfect. And the other kind of strike
is the peremptory challenge. And that was what was at
issue in the Flowers case. A peremptory strike is
a strike for any reason. A juror can be struck
by either the defense, or the prosecutor, for any reason, and the sides get an
equal number of strikes in most jurisdictions. In a case called Batson in 1986, the Supreme Court held that race could not be one of the reasons that a prospective juror
was struck by a prosecutor. And that case was decided both because of the Constitutional
rights of the defendant, as well as the rights of
the prospective jurors. And subsequent cases to Batson
have extended the premise to defense attorneys
and to gender, as well. – What were some of the
highlights in the opinion for you? Especially in the majority
opinion by Kavanaugh. – Sure, well I think what’s
what I think you and I know as defense attorneys is that Batson has widely been thought of as a failure, because it doesn’t really
get at discrimination during jury selection
for a couple of reasons. One, it’s really hard to get
into the mind of a prosecutor and to know what he’s thinking. Another reason is that
defense attorneys and judges don’t want to call another professional who they see everyday
in the same courthouse, they don’t want to call him a racist, or say that he was exercising
his peremptory challenges in a way that was racially discriminatory. And then, there’s a
couple of other reasons that I think Batson has been a failure, and that’s that the court requires that, or allows a prosecutor to come up with a race-neutral reason. – One of my favorite pretextual reasons for striking an African American jury was in a case that the
prosecutor maintained that the prospective juror had a mustache, and that was suspicious. – What’s nice about this decision is that it puts some
teeth, or at least tries, to put some teeth back into Batson, and that’s by doing
comparative juror analysis where we look at which jurors were allowed to stay on the jury, who were white, and whether
they were similarly situated to excluded jurors and the
allegedly race-neutral reasons that were given to exclude them. So in this case, one of the reasons that the prosecutor gave for excluding one of the black jurors is that
he knew the Flowers family, or that she knew the Flowers family, but there were three white
jurors who were seated who also knew the Flowers family. – And there were no questions
asked of those white jurors. There were on average 29 questions asked of each African American
prospective juror, and on average one question
asked of white people, and even those white people who had some connection to
the parties in the case, the store where the murder took place, and the family of Mr. Flowers, no questions were asked of
those prospective jurors. – And so the issue in the case was whether the fact
that prosecutor was able to offer some race-neutral
reasons, did his conduct, when you look at the entirety
of the history of the case, did it violate Batson? And the court found that it did. – And the court paid special attention to the history of the case, and the historical record
showed that the state, that is, Doug Evans,
tried to strike all black prospective jurors over the
course of the first four trials. A total of 41 of 42
black prospective jurors, and again, there was no
doubt as to the fifth trial, and then he did the same exact
thing in the sixth trial, so that there was a clear pattern. – And when you think
about what he has cost Mississippians, it’s really troubling too. I mean, this is one of the
poorest states in the country, and yet he doggedly has
pursued prosecution, prosecuting six, and I won’t be surprised if there’s a seventh trial as well. – But you know, I also think
raises all kinds of questions. Some ethical, you know,
when does a prosecutor no longer act as a minister of justice, which is what prosecutors
are supposed to be, according to the rules
of professional conduct, and become a prosecutorial zealot? – And I think, you know,
prosecutors are supposed to represent the entire community. So they should feel okay
about that same community being on the jury, and not just
focus on particular groups, and it’s troubling when they don’t. – It is troubling. I was heartened by Kavanaugh’s opinion, that it was Kavanaugh who wrote it, that he seemed to truly understand the history of exclusion of black people from juries in this country,
which goes way back, and which through all kinds of methods there was resistance to the seating of black people on juries in this country. He seems to get that, he seems to get that it’s persisted now, and that prosecutors are a chief violator of the principle of
equal justice under law. I was heartened by that. – I thought that it was
great that he took the time to spell it out so that the reader would understand that history. So what do you think should
happen going forward? – Well, I endorse the idea that we should end peremptory
challenges for prosecutors for a number of reasons. They’ve consistently abused that right, and it’s just easy to demonstrate. Now, it was especially easy in this case. When the justices say, oh,
this was an extraordinary case, this is a once in a lifetime case, words to that effect is
what Justice Alito said in his concurring opinion. First of all, it’s not
an extraordinary case, it’s not once in a lifetime. This happens every single day in courtrooms across the country. This, meaning the exclusion
of prospective black jurors from serving as juries in criminal cases. Prosecutors have avoided
and resisted Batson for as long as it’s been in effect. I was a Philadelphia public defender in the beginning of my career, and Philadelphia is the place
that brought a very famous training video to light
that had been used in 1987 in which an assistant District
Attorney in Philadelphia, a guy named Jack McMann, was
training young prosecutors on how to avoid and subvert Batson. You know, how to use a code to remind yourself of the
race of the jurors and so on, and that’s why I remain skeptical, that’s why I think after a case like this, there are gonna be some prosecutors. And this was Philadelphia,
it’s not the Deep South. Again, this happens all over the country. I worry that prosecutors who, you know, are a little too zealous
will do what they can to subvert by training
prosecutors how to avoid, number one, the prima facie case of racial discrimination
in jury selection, and number two, how to
offer race-neutral reasons that will get them out of the objection. – One thing I was
thinking might be helpful is for us to give our
thoughts for Defense Attorneys what they can do in
light of this decision, or keeping this decision in
mind during jury selection. And one thing that comes to mind for me is for Defense Attorneys to be brave. To actually make Batson challenges. Because I think a lot of times
they’re worried about it. They’re worried about
offending the prosecutor, who they may have future cases with. They’re worried about
not getting a plea offer that’s good for their next client. But they have to do it
for the individual client, and so I think that’s important. And making a record about
the demographics of the jury. I don’t know if you have other thoughts? – No, I think that’s great. I wish we could come up
with a bullet point list of things to include in a
training of defense lawyers, and I love your idea
of emboldening lawyers to just make the challenge. Why shouldn’t defense lawyers routinely make a Batson challenge? It’s an objection, and that’s
what defense lawyers do, is we make objections
when there’s something improper that’s happening in a trial, and then let the government make its case. I think also training
folks about these other clever pretextual ways
to work around Batson and now to work around Flowers, to be mindful of disparate questioning. I think probably more
challenges ought to be made to the veneer in places that
are much more racially diverse than the veneer that is the panel from which prospective
jurors will be chosen. Doesn’t reflect that, you know? I think in too many places, you get nearly all white, or
overwhelmingly white veneers, in places that have many
more African American and Latino, Latinx jurors. Other things to train them on? – I think your point about
disparate questioning is a good thing for Defense
Attorneys to be thinking about and taking notes about
during jury selection. You know, if you notice there are two similarly situated jurors that have the same answers
to a certain question, but only one of them
gets questioned in depth or rigorously about it, that’s
something to keep notes on. – That’s great.
– And make a record on. – And I think we could do
better training in general about jury selection. My favorite work that’s come out is by the Colorado
Public Defenders Office. There’s a method that they employ called the Colorado
Method of Jury Selection, which focuses more on cause challenges, and tries to get the judge
ultimately to make the decision after a good, well-trained defense lawyer, through a series of questions, uncovers some of the
implicit, unconscious bias that jurors often have. I mean, jurors like to think of themselves as fair-minded, too. We all do, that’s the problem of implicit and unconscious bias is that, people are not gonna volunteer
that they have that bias. It can only get surfaced
through questions that, if you believe in the Colorado
Method of Jury Selection, include basically embracing a person and encouraging them to share some of the misgivings they have that reflect a certain amount of bias. – And if you’re a good prosecutor, you’d avoid peremptory
challenges altogether, you’d give ’em up. – Yes, I couldn’t agree more. If you are a progressive,
enlightened prosecutor, who believes in the evidence in your case, I mean, let’s, this is our pitch together, don’t exercise ’em, believe in your case. That’s the honorable thing to do. Try your case. You should be able to try your case in front of an all African
American jury, why shouldn’t you? – And if you want the
trust in your community, this is the thing to do. (pencil scratches)


  1. Why don’t juveniles get jury’s on cases because they get messed over too by prosecutors judges detectives public defenders probation and they were all white. Is Braxon considered bias on a trial we feel and know was a set up trial a very concerned mother I’m in need of caring defense lawyers who know how to defend and know what they looking at up against. I feel my child was dealt my with a untrustworthy juvenile court judges and all a prosecutor that deliberately kept holding the courts up with delays to make him guilty of a crime he never committed in the first place now our lives are ruined and I don’t know who to turn to considering most of the lawyers down here don’t respond or care. Thank you they hurt innocent children down here for conviction rates instead of dignity and honorable status.

  2. Why would you be surprised. Republicans are about the Constitution when are you going to get it through your fat heads? The Democrats on the supreme Court voted against Curtis showing their true colors because they have always hated blacks…You better check your black history there sweetheart.

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