Judge Joseph Loper has denied Curtis Flowers’ motion for a new trial.  The judge had ruled on similar motions filed before, during and after Mr. Flowers’ June trial, so this announcement comes as a surprise to no one.   

Flowers had argued, among other things, that the composition of the jury (eleven whites and one black) deprived him of a fair trial. 

Flowers has never been convicted when more than a single black juror has been seated on the jury; he has never escaped c0nviction when, as has been the case on four occasions, eleven of the jurors were white.

Montgomery County is 45% black and 55% white.

The composition of the jury, by itself, has never been a big legal issue in the Flowers case.  The law has become increasingly unfriendly to claims of racial bias.  The first two verdicts were overturned because the state chose to trying Flowers for only one of the four murders committed in 1996 at the Tardy Furniture store but introduced evidence related to multiple murders.  The verdict in Flowers 3 was overturned on a “Batson challenge” because DA Doug Evans used all fifteen pre-emptory strikes on African Americans.  

In Flowers 4, the death penalty was off the table and five black jurors were seated.  African Americans, especially in the state of Mississippi, tend to oppose the death penalty while whites strongly support it.  All five black jurors held out for acquittal in Flowers 4.

In Flowers 5, the state once again asked for the death penalty and tried the case before a jury of nine whites and three blacks.  Two of the black jurors suggested in post-trial interviews that they supported a conviction with the understanding that white jurors would agree to a sentence of life in prison without parole.  That strategy was rendered moot when James Bibbs, the third black juror, held out for acquittal.

“The judge got real loud,” Bibbs told Tom Mangold of the BBC last year.  “He said ‘you are lying, you committed perjury’. I was disappointed, all these years you do all these things for the community, then you are called a liar like that out in the public, it was degrading.”  Bibbs, a retired school teacher and Vietnam veteran, was charged with perjury for allegedly withholding personal knowledge related to the case during the voir dire process.  When civil rights attorney Rob McDuff forced DA Evans and Judge Loper to recuse themselves, the Mississippi attorney general’s office quietly dropped the charges.

But the point had been made.  In Flowers 6, black residents were desperate to avoid jury duty, excusing themselves for a wide variety of reasons. 

In last week’s ruling, Judge Loper argued that Flowers “should not be heard to complain about the racial makeup of the jury, since the overwhelming majority of the members of his race stated that they could not sit in judgment of him because of kinships, friendships, and family ties.” 

Loper also speculated that “given the prominence of the Flowers family in Montgomery County and given their large extended family, it is far from certain that another venire would have resulted in more African Americans serving on the jury.”

Loper failed to mention that persons closely associated with the four victims of the 1996 slayings frequently insisted that they could serve as fair and impartial jurors.  As a result, the venire grew progressively whiter as the voir dire unforlded.  Ultimately, the jury was chosen from a group of thirty-five whites and ten blacks.  Since the state and the defense both had 15 peremptory strikes at their disposal, DA Doug Evans could have produced the cases’ first all-white jury had he so elected.  Wisely, Evans left a single black resident on the jury for the sake of appearances. 

Judge Loper didn’t mention the chilling effect the criminal indictment of Mr. Bibbs had on the Montgomery County’s African American community.  No black person in the state of Mississippi relishes the prospect of sitting on a jury with eleven white folks in a case fraught with racial undercurrents.  Knowing you could find yourself on the hurting side of a criminal indictment only deepens the sense of apprehension.  When a CNN reporter tried to get comment from the black community she could get only one interview on tape, and that was from a black man who insisted that his name not be mentioned. 

I’m not sure why the Jackson Clarion-Ledger accompanied their story with Mr. Flowers’ prison mug shot.  An expressionless black guy in prison whites certainly looks guilty.  The paper could have used one of a dozen photographs taken during trial when Flowers appeared in formal attire.  Now that he has been convicted, I guess the paper decided to make him fit the convict mold.

Judge Loper’s decision clears the way for Mr. Flowers’ appeal to proceed to the Mississippi Supreme Court.  It is difficult to anticipate how the Supreme Court justices will rule.  The successful Batson challenge following Flowers 3 was supported by copious evidence of flagrant bias.  There is little in the record from Flowers 6 to support a standard Batson claim unless it is argued that Mr. Bibbs was indicted for the express purpose of intimidating potential black jurors.  Unfortunately, while common sense suggests a connection between the Bibbs indictment and the behavior of potential black jurors in Fowers 6, it’s a tough case to make before the Supreme Court. 

If you are unfamiliar with the Flowers case (and are still reading) you can find all the background you could ever desire here.

Reporters generally have a sketchy feel for the basic facts of this case.  For instance, the AP story on Judge Loper’s decision ended with what the writer doubtless considered damning facts:

“Among those testifying during the latest trial was Clemmie Flemming, who said she saw Flowers running out of the store at the time of the killings on July 16, 1996. Firearms expert David Balash had testified that the residue found on Flowers’ right hand the day of the slayings was in a spot consistent with firing a handgun.”

The reporter likely didn’t realize that the state ballistics expert originally assigned to the case attached no evidentiary significance to a single particle of gunshot residue or that forensics experts generally agree that small quantities of GSR (as it is commonly called) can be picked up by casual contact, especially in police stations.

It is also unlikely that the reporter was aware that Clemmie Flemming has told more than half a dozen Winona residents that she invented her testimony, that a number of friends and family members have testified to this fact, or that Flemming’s testimony has been repeatedly refuted by the man who was her driver on the morning in question.

That’s the problem with this case.  The state has all kinds of evidence, but none of it can stand up to careful scrutiny. 

Until this case is re-investigated from the ground up, Curtis Flowers will never receive the justice he deserves and the sense of finality and closure coveted by the good people of Winona, Mississippi will remain illusive.

Alan Bean, Friends of Justice