Supreme Court: Prosecution’s pattern of race-based jury selection is unconstitutional

In a case that spans decades, a black Mississippi man was convicted four times for the 1996 murders of four furniture store employees – three white, one black. Four times, he was sentenced to death.

The problem?

In all four trials – and two others that ended in mistrials – the prosecution struck nearly all black jurors from the jury pool, resulting in heavily white juries. The U.S. Supreme Court recently issued a decision on the sixth trial and conviction, reversing it on the grounds that the prosecution’s jury selection tactics were racially motivated and therefore unconstitutional.

Wait a minute, you might be thinking, didn’t the Supreme Court already address this type of discriminatory jury selection? And didn’t it rule that such a strategy violated the Constitution’s guarantee to an impartial jury? Yes, and yes.

So while the Supreme Court’s decision in the most recent case, Flowers v. Mississippi, may not have broken new ground, it nonetheless made waves.

Constitutional limits on jury selection

Every criminal procedure class since 1986 has covered the landmark case of Batson v. Kentucky. That case set important limits on the prosecution’s right to exercise “peremptory” or “discretionary” strikes during jury selection (or voir dire).

Typically, both sides are allowed to strike a certain number of potential jurors without having to give any reason. But if those strikes appear to be racially motivated, according to the Supreme Court in Batson, a foundational constitutional right comes into play: the right to an impartial jury composed of one’s peers. So if the prosecution appears to be excluding potential jurors on the grounds of race, they must provide a credible, alternative reason for the exclusion.

A pattern of suspicious strikes

In this case, the prosecutor in all six trials – Doug Evans, a white man – had a pattern of striking black jurors from the pool. In Flowers’ first four trials, Evans used every last one of his 36 peremptory challenges to strike black jurors. In the sixth trial, which led to the recent Supreme Court decision, Evans accepted a single black juror but struck the other five from the jury pool.

Upon objection in the latest trial, Evans gave various reasons for excluding the black jurors. But on closer examination, these explanations didn’t hold water. Many were “factually inaccurate,” the Court observed.

What emerged over the course of six trials was a “relentless, determined effort” on the part of the prosecution to keep black people off the jury.

The fallout

The case seems fairly straightforward – a rather egregious pattern of racially motivated peremptory strikes, conducted as though Batson hadn’t been decided. Yet two Justices dissented, and the decision has triggered more backlash than might be expected.

The dissenters, Clarence Thomas and Neil Gorsuch, essentially deferred to the prosecution’s claimed reasons for striking the jurors. They expressed concern that media attention had motivated the Court’s decision to hear the case. The decades-long saga of trials, convictions, appeals and reversals was covered in detail on an entire season of “In the Dark,” a popular true-crime podcast. Thomas also went so far as to suggest that Batson was flawed and should be overruled. (Gorsuch didn’t join in that portion of the opinion.)

The decision sheds light on the judicial leanings of Trump’s two appointees. While Gorsuch dissented, Brett Kavanaugh not only joined in the majority opinion; he authored it.

As for Mr. Flowers, he remains in custody. It remains to be seen whether the state will pursue yet another trial – and, if so, what the outcome might be with a more racially balanced jury.