It takes a lot of money to put a defendant on death row. Most capital defendants are poor and uneducated. Families are rarely in a position to foot the bill for a qualified defense attorney.
The issue of indigent defense has been getting some long-deferred attention since Lawrence Tribe was appointed as Senior Counsel of the Department of Justice. Tribe refers to the “justice gap” that makes it difficult for indigent defendants to get the justice the constitution demands. “The whole system of justice in American is broken,” he says. “The entire legal system is largely structured to be labyrinthine, inaccessible, unusable.”
In 1963, in a groundbreaking case known as Gideon v. Wainright, the Supreme Court ruled that legal defense was a fundamental right guaranteed by the constitution. After Gideon, defendants had the right to state-appointed defense counsel.
But how much defense is enough?
The American system of criminal justice is the most adversarial in the world. In theory, the state, after determining that a prosecution is appropriate, does its best to make a compelling case for guilt. Defense counsel then goes to the wall for the defendant, poking holes in the state’s case and working diligently for whatever seems to be the best outcome for their client.
This theoretical scenario can be incredibly expensive. A thorough investigation of a homicide, for instance, requires the examination of a wide range of leads, possible suspects and theories of the crime. If a suspect confesses and accepts a plea bargain, the state saves hundreds of hours and hundreds of thousands of dollars.
But suppose the “case facts” are complicated and the prime suspect maintains his innocence? Then you are looking at a lot of time and money. Prosecutors have limited resources. If you invest $100,000 and hundreds of hours investigating a single high-profile case, other cases will suffer.
Now you understand why 95% of criminal cases are settled by plea bargain. Cash-strapped investigators easily convince themselves that they can identify the perpetrator after a cursory investigation. In most cases, this involves breaking down the alleged perpetrator through a process of intense interrogation that can stretch over days. Investigators have been given the freedom of lie to suspects if they have no real evidence. They can tell suspects that friends, family members and associates have implicated them. They can lie about the results of polygraph tests. They can even invent fake case files purporting to contain the fruits of an elaborate investigation.
The goal is to break the suspect down by making it appear that resistance is futile. Once an admission of guilt is obtained, the goal is to get the suspect to write out a full confession so airtight, internally consistent and detailed that defense counsel will be completely disarmed.
The vast majority of homicide cases are solved through interrogation and plea bargain or become cold cases when the trail peters out.
You get the easy win or you give up. You can only give so much time and money to a single case.
What happens when the state believes it knows the perpetrator but the case evidence is sketchy and the guy won’t admit to the crime? This scenario haunts a prosecutor’s dreams. If the case is high-profile and the identity of the prime suspect is well known the state finds it virtually impossible to admit defeat.
The Curtis Flowers case only makes sense against this bureaucratic backdrop. For some reason, DA Doug Evans and John Johnson, the lead investigator in the Flowers case, made little attempt to interrogate Curtis. Maybe they thought it was a waste of time. Instead, they spent nine months going door-to-door on the black end of Winona, Mississippi, looking for people willing to confirm aspects of their theory of the case. Dozens of people were picked up at their jobs and carried down to the police station for an interview.
The goal was to pile up so many state’s witnesses that Curtis Flowers would realize his situation was hopeless.
But Curtis refused to fold.
He was offered life without parole in exchange for a guilty plea.
Curtis turned it down.
At some point prior to the first trial, Mr. Evans decided to make an example of Curtis Flowers. A single trial wasn’t enough. The plan was to try the defendant once for each of the four victims who died at the Tardy furniture store on July 16, 1996.
Unlike most capital defendants, Curtis Flowers was able to pay for legal counsel. Sort of. His first attorney was Billy Gilmore, a former police officer from Lexington, Mississippi. Gilmore had been a sheriff’s deputy in the 1960s when African Americans were trying to register to vote in the 1960s. Some local residents say Gilmore was present when the KKK firebombed the home of Hartman Turnbow in 1963. Gilmore admits he was chief sheriff’s deputy of Holmes County at the time, but denies involvement with the Klan.
Gilmore, assisted by his son John, did a reasonably good job of defending Curtis Flowers at his first trial in Tupelo. But reading through the transcript, you get the uneasy feeling that the Gilmores came to the facts late in the day. There was certainly no fresh investigation. Gilmore tried to poke holes in Doug Evans’ case, but made no attempt to introduce an alternative theory of the crime.
Curtis Flowers was convicted by eleven white jurors and one black juror and sentenced to death.
Unsatisfied with one conviction, Doug Evans took Flowers to trial in Gulfport.
Curtis Flowers and his family saw no reason to believe that using the same attorneys would produce a different outcome. With this in mind, they hired Chokwe Lumumba, a highly respected civil rights attorney from Jackson. But there was a problem. The Gilmores had been hired to represent Mr. Flowers in four trials and the Flowers family didn’t have the money to hire Mr. Lumumba and an investigator. At a pre-trial hearing, defense counsel requested state funds to pay for an investigator.
Judge Clarence Morgan told Lumumba that the record of the first trial should be a sufficient guide to the facts of the case.
Lumumba pointed out that the transcript of a trial that led to his client’s conviction was lacking by definition.
Judge Morgan said the defense had every right to an investigator if they wanted one, but the state wouldn’t be footing the bill.
Lumumba was incredulous. “I would say this to the Court. You know we cannot penny-pinch around these death penalty cases. I mean I don’t care what people’s view is about budget and all this kind of stuff. If you are a state and you take the responsibility where you say you are going to put people to death then at that point money becomes no object.”
But money was an object. A big object. Judge Morgan was willing to let the state go to the incredible expense of trying Curtis Flowers in four consecutive trials, but he wouldn’t give the defense money for an investigator.
The economic issue raised its head later in the pre-trial process when Frederick Veal, one of the jailhouse snitches the state had used to convict Flowers in the first trial, told defense counsel that he had perjured himself in exchange for a get-out-of-jail-free card. According to this new testimony, the sheriff of LeFlore County had sent Mr. Veal into a cell with Curtis Flowers by for the purpose of soliciting a confession.
Lumumba argued that the testimony of both snitches should be disallowed.
Judge Morgan was unimpressed. There was no way of knowing, he said, if Veal perjured himself or not.
Lumumba could scarcely contain himself. Why, he asked, would an ex-snitch contact defense counsel after being released from prison? “There is no reason in the world that Veal had to tell us what he told us other than the fact that it’s the truth. We couldn’t put him in jail. We couldn’t let him out of jail. We can’t give him thirty thousand dollars. We can’t put him in a hotel . . .”
Even if the state had granted the defense a few thousand dollars for an investigator, there would be no way to match the state’s intimidating influence over potential witnesses. When the state produces a dozen eye-witnesses, pointing out a few inconsistencies isn’t enough; you’ve got to put the entire investigation on trial. And that means a thorough investigation.
It is obvious from trial and hearing transcripts that Mr. Lumumba made a heroic effort to perform his own investigation prior to trial, but the situation demanded the services of a full-time investigator.
In Flowers 2, the defendant was tried by another jury comprised of eleven white jurors and one black juror. Once again, he was convicted and sentenced to death.
Shortly thereafter, the convictions in Flowers 1 and Flowers 2 were both overturned by the Mississippi Supreme Court. Doug Evans had over-reached. While only trying one specific murder, Evans had presented evidence relating to all four killings.
The case didn’t go to trial again until 2004. This time, Curtis Flowers decided he could get a better shake back in Montgomery County.
The indigent defense situation had improved significantly since Mr. Flowers first went to trial. A new state-funded office had been created in Jackson to ensure that indigent capital defendants would be fairly and competently represented.
Unfortunately, the new Office for Capital Defense had a limited budget and a daunting case load. The budget for investigation was strictly limited. The record suggests that no significant new evidence was sought or discovered in the Flowers case between three 2004 and trial six in 2010.
By now it was obvious that jurors exposed to testimony from the state’s eye-witnesses were inclined to convict. On the other hand, there had been no significant African American representation on juries one and two, so maybe there was hope.
But in trial three, the state created yet another jury with only a single black juror by using all fifteen peremptory strikes to exclude black residents from the jury. Predictably, the trial ended with another guilty verdict and another death sentence.
The Mississippi Supreme Court ruled that DA Evans had exhibited racial bias during jury selection. Once again, the conviction was overturned and the case was remanded for re-trial.
In Flowers 4, all five black jurors–to the surprise and horror of all right-thinking people in Winona–held out for acquittal.
Did the defense suddenly come up with new evidence or find previously undiscovered holes in state testimony?
Not really. Black jurors understood the impact reward money and implied threats could have on poor black folks. They also had trouble seeing the Curtis Flowers they knew perpetrating such a heinous crime.
Finally, black jurors understood the power of the state to manipulate reality. Many things had changed since the days of Jim Crow, but racial power dynamics in Montgomery County remained the same.
Trial five ended in another hung jury; but just barely. One of three black jurors held out for acquittal. He was charged with perjury. Although charges were eventually dropped by the Attorney General’s Office, potential black jurors in trial six eliminated themselves at an unprecedented rate.
Thirteen years since Flowers 1, the state was putting on essentially the same witnesses. Primed with transcripts of former statements, these men and women repeated the now-familiar stories, virtually word-for-word. When a jury of eleven whites and one black was selected, it was all over.
Over six trials, every single white juror who has heard the state’s witnesses has voted to convict and has sentenced Curtis Flowers to death. Single black jurors always go along for the ride.
After six jury trials, the resource gap remains intact. The state’s theory of the case has never been seriously challenged in the courtroom. You can’t place the state’s investigation on trial without matching state expenditures dollar-for-dollar and hour-by-hour.
The case against Flowers features unusually weak physical evidence bolstered by a large number of eye-witnesses.
Credibility, like beauty, is in the eye of the beholder. Shortly after the state rested in Flowers 6, I was approached by a dignified white gentleman who had driven to Winona to witness the trial. He had heard a lot about the case and wanted to see for himself what it was all about.
“Is that all the state has to offer?” he asked me. “I simply don’t find those people credible. In fact, most of them are downright ridiculous.”
“I agree,” I said. “But the folks in the jury won’t see it that way.”
“Are you certain?” he asked.
“You can never be certain of anything,” I replied. “But from where I sit, Curtis Flowers doesn’t have a chance.”
The legal system is like war and football; the side that brings the most resources to the table wins.
Why have so many people spent so many years repeating the same incriminating claims? Either Mr. Flowers is guilty as sin, or the state of Mississippi, through the ministrations of District Attorney Doug Evans, has manufactured false testimony on an extraordinary scale.
My money is on the second alternative.
Curtis Flowers, like most God-fearing residents of Winona, doesn’t fit the hardened-thug profile.
The idea that an unassisted individual could kill four people execution-style is counter-intuitive.
Why would a killer walk witness-laden streets to a murder?
Why didn’t a single witness come forward of their own volition?
I can think of a few provisional answers.
The DA from Grenada, Mississippi was under enormous pressure to find a suspect on the black side of town.
Moreover, Doug Evans is an unreconstructed product of the Jim Crow era who has repeatedly displayed a remarkable degree of racial insensitivity. There are plenty of Jim Crow alumni who experienced a come-to-Jesus moment later in life. The late Robert Byrd is an obvious example. But there is no evidence that Mr. Evans has made a clean break with the rigid worldview he was raised in. Shortly before the Tardy murders, Evans was giving speeches at events sponsored by the unapologetically racist Council of Conservative Citizens.
None of this is proof that Flowers is innocent, of course. But this case is riddled with questions that only an extensive re-investigation can answer.