WASHINGTON - The Supreme Court on Friday threw out the most recent conviction of a Mississippi man who has been tried an extraordinary six times for a quadruple murder in 1996, finding that a zealous prosecutor once again had improperly kept African Americans off the jury.
The decision was 7 to 2, with Justice Brett Kavanaugh writing the majority opinion. He said it broke no new legal ground, but reinforced the court’s rulings about when a prosecutor’s bias eliminated a potential juror. Justice Clarence Thomas and Neil Gorsuch dissented.
Six times, District Attorney Doug Evans, who is white, has attempted to convict Curtis Flowers, who is black, in a prosecutorial pursuit that may be without parallel. Flowers was charged with executing four people inside Tardy Furniture Store in the small town of Winona, Mississippi. in 1996.
Two trials, the only ones with more than one African American on the panel, resulted in hung juries. Three convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct and improper maneuvering by Evans to keep blacks off the jury.
But the state said Evans had offered race-neutral reasons in the most recent trial, in 2010, when the prosecutor struck five of six black potential jurors. He was convicted of murdering Bertha Tardy, 59, and store employees Carmen Rigby, 45, Robert Golden, 42, and 16-year-old Derrick "Bo Bo" Stewart, and sentenced to death.
The Supreme Court was not considering the evidence against Flowers, but instead examining Evans' prosecutorial tactics.
In his dissent, Thomas said the court did not dispute Flowers was convicted by an impartial jury.
"Today's decision distorts the record of this case, eviscerates our standard of review, and vacates four murder convictions because the state struck a juror who would have been stricken by any competent attorney," he wrote. He added: "If the court's opinion today has a redeeming quality, it is this: The state is perfectly free to convict Curtis Flowers again."
When picking a jury, some potential members are eliminated by the judge and lawyers for cause - that they have a conflict of interest, for instance, or because they say in a capital case that they could not impose the death penalty.
Prosecutors and defense attorneys also receive what are known as peremptory challenges. They can strike potential jurors they simply don't want on the jury, and generally those choices cannot be second-guessed.
But in a 1986 case, Batson v. Kentucky, the Supreme Court said the challenges could not be used to strike a potential juror because of his or her race. (Gender was later added as a forbidden purpose.)
In a more recent decision, the court said judges should consider the "totality of the circumstances" when deciding whether a prosecutor was using the challenges as a pretext for barring jurors because of their race.
Flowers' lawyers said that means looking at Evans' work in previous trials, not just the most recent one.
"The first four times Evans prosecuted Flowers, he struck every black panelist that he could, 36 in all," they told the Supreme Court in a brief.
Generally, lawyers can come up with a race-neutral reason for striking a juror. But Evans' actions in one of those trials, the Mississippi Supreme Court ruled, presented "as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge."
But deciding whether a potential juror was struck is a fact-specific inquiry. And the Mississippi high court in the 2010 case deferred to a judge’s finding that Evans had nondiscriminatory reasons for striking the black jurors - because they had ties to Flowers or had been sued by Tardy Furniture, for instance.