Striking Black Jurors
In 1986 the Supreme Court finally recognized that the U.S. Constitution bars one of the most pernicious prosecutorial practices in our criminal justice-system: the use of preemptory challenges to strike potential jurors on the basis of their race—invariably because they are African-American. Despite that watershed ruling in Batson v. Kentucky, 476 U.S. 79 (1986), race-based juror disqualifications have remained an engrained practice. A case argued before the Supreme Court two weeks ago dramatically illustrates the practice’s persistence.

On July 16, 1996, four employees of the Tardy Furniture Store in Winona, Miss., were found shot to death. Curtis Flowers, a recently-fired store employee, was arrested, charged with capital murder, and ultimately convicted after being tried six times, all with the same prosecutor. During the first four trials, the prosecutor used every one of his 36 preemptory challenges to strike black jurors, with one conviction being reversed on Batson grounds. At the sixth trial, the prosecutor accepted the first black juror candidate but then struck the remaining five, resulting in a jury of 11 white jurors and one black juror, who convicted Flowers. He was then sentenced to death.

While Flowers’ request for review was pending before the U.S. Supreme Court, the Court decided Foster v. Chatman, 136 S.Ct. 1737 (2016), in which it reversed a conviction in a capital case on Batson grounds in light of post-conviction revelations that the prosecutor’s file in that case was replete with evidence the prosecutor used preemptory challenges to exclude blacks from the jury because of their race. The Supreme Court then vacated Flowers’ conviction and remanded his case for reconsideration in light of Foster.

On remand the key question was whether the prosecutor’s juror-selection history during all six trials should be considered in assessing the Batson challenge arising from the final trial.  In considering this claim the Mississippi Supreme Court faithfully recited the Batson three-part test and reasoned that the third part—that “the trial court must determine whether the defendant has shown purposeful discrimination—necessarily allowed for consideration of the prosecutor’s history. But the Mississippi high court also read that step to require it to defer entirely to the trial court’s conclusion in Flowers’ case that the history did not reveal improper animus in the sixth trial.

It was this prosecutorial history that was the subject of debate at the March 20 arguments before the U.S. Supreme Court, and it was not only the liberal Justices who raised serious concerns. Justice Alito called the prosecutor’s record “unusual and really disturbing,” and Justice Kavanaugh declared, “We can’t take history out of the case.” By all accounts, it appears the court will vacate Flowers’ conviction and death sentence, perhaps breaking new ground in recognizing that Batson requires a more searching examination of prosecutorial use of preemptory challenges.

But there was one bigger surprise at the argument: For the first time since 2016 (which itself marked the end of a 10-year silence), Justice Thomas asked questions. Less surprising was that he directed his concerns about discriminatory juror-striking not to the state but to defense counsel, asking about her use of preemptory challenges: “And what was the race of the jurors struck there?”, Justice Thomas asked. (The answer was white, which had nothing to do with the issue before the Court and was to be expected since virtually all black jurors had been eliminated by that point.)