(This post is part of a series concerning Curtis Flowers, an innocent man convicted of a horrific crime that has divided a small Mississippi town. Information on the Flowers case can be found here.)
A new study by the Alabama-based Equal Justice Initiative deals with the problem of racial bias in jury selection.
According to an article in the New York Times, “EJI studied jury selection in eight states in the southern United States: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee. State appellate courts in each of these states – except Tennessee, whose appellate courts have never granted Batson relief in a criminal case – have been forced to recognize continuing problems with racially biased jury selection. The Mississippi Supreme Court concluded in 2007 that ‘racially profiling jurors and racially motivated jury selection [are] still prevalent twenty years after Batson was handed down.'”
That quote came from the Mississippi Supreme Court’s 2007 finding that the third trial of Curtis Flowers was riddled with racial bias. It is hardly surprising that a New York Times story highlighting the EJI’s new study begins and ends with the Flowers case. The caption under the picture above reads, “Curtis Flowers at his capital trial in 2004. The Mississippi Supreme Court reversed his first conviction after prosecutors used all of their peremptory strikes against blacks in the jury pool.”
Actually, it was his third conviction, but who’s counting.
The NYT article concludes with this:
In one Mississippi case, a black man, Curtis Flowers, was sentenced to death in 2004 for killing four furniture store employees. The jury was made up of 11 whites and one black after prosecutors used all 15 of their peremptory strikes on black jurors. Montgomery County, where the crime occurred, is 45 percent black. The Mississippi Supreme Court reversed the case, noting that “racially motivated jury selection is still prevalent 20 years after Batson.”
Although it didn’t make the New York Times, the Mississippi court introduced the meaty portion of its ruling with an expression of amazement: “The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.”
Batson vs. Kentucky, you may recall, was the 1986 Supreme Court Decision banning the use of racial criteria in jury selection. Unfortunately, so long as a prosecutor can give a race-neutral reason for making a strike (it doesn’t have to make sense) it is virtually impossible to sustain a Batson challenge. Tennessee, for example, has never reversed a case because of racial bias in the jury selection process.
The Recommendations section of the EJI report is refreshingly candid. Here are a few highlights, followed (in italics) with an application to the case of Curtis Flowers.
- “Dedicated and thorough enforcement of anti-discrimination laws designed to prevent racially biased jury selection must be undertaken by courts, judges, and lawyers involved in criminal and civil trials, especially in serious criminal cases and capital cases.” Racial bias is particularly problematic in high-profile capital cases, especially when the state’s case is highly circumstantial. Black jurors evaluating a case involving a black defendant are far more likely than white jurors to hold the State to its proper burden.
- “Prosecutors who are found to have engaged in racially biased jury selection should be held accountable and should be disqualified from participation in the retrial of any person wrongly convicted as a result of discriminatory jury selection. Prosecutors who repeatedly exclude people of color from jury service should be subject to fines, penalties, suspension, and other consequences to deter this practice.” When the Mississippi Supreme Court characterized DA Doug Evans’ behavior as the most egregious example of racial bias in the jury selection process they had ever witnessed there were no negative consequences. Evans stayed on as prosecutor for trials four, five and (beginning next week) six.
- “States should provide remedies to people called for jury service who are illegally excluded on the basis of race, particularly jurors who are wrongly denigrated by state officials. States should implement strategies to disincentivize discriminatory conduct by state prosecutors and judges, who should enforce rather than violate anti-discrimination laws.” The only disincentive in the Flowers case is to recuse both DA Doug Evans and Judge Joey Loper from the case. The prosecution must be taken over by the Attorney General’s Office and a judge from outside the jurisdiction should be appointed.
- “Community groups, civil and human rights organizations, and concerned citizens should attend court proceedings and monitor the conduct of local officials with regard to jury selection practices in an effort to eliminate racially biased jury selection.” Four members of the Friends of Justice board and supporters from across the nation have committed to being in Winona. We will be paying close attention to the voir dire process and publishing our observations on this blog.
- “State and local justice systems should provide support and assistance to ensure that low-income residents, sole caregivers for children or other dependents, and others who are frequently excluded from jury service because of their economic, employment, or family status have an opportunity to serve.” Most middle class people are compensated by their employers for jury service, but self-employed and minimum wage workers with no benefits are forced to shoulder the economic burden themselves. As a result, minorities are far more likely to excuse themselves from the venire due to hardship. This was one of the factors that allowed Doug Evans to seat eleven white jurors in a county that is 45% black.
- “Greater racial diversity must be achieved within the judiciary, district attorney’s offices, the defense bar, and law enforcement to promote and strengthen the commitment to ensuring that all citizens have equal opportunities for jury service.” The EJI study shows that only 4% of Mississippi district attorneys are black. Winona’s black chief of police should have been responsible for investigating the Flowers case in 1996 but was pushed aside by the DA’s investigator John Johnson. As a result, the same person was investigating and prosecuting the same case–a recipe for prosecutorial tunnel vision.