Mississippi prosecutor went on a racist crusade to have a black man executed. Clarence Thomas thinks that was just fine.
That’s the message of an astonishing decision handed down by the Supreme Court on Friday. The facts of the case, known as Flowers v. Mississippi, are straightforward. As Justice Brett Kavanaugh put it, in his admirably blunt opinion for the Court, “In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.” Flowers was convicted in the first three trials, and sentenced to death. On each occasion, his conviction was overturned by the Mississippi Supreme Court, on the grounds of misconduct by the prosecutor, Doug Evans, mostly in the form of keeping African-Americans off the juries. Trials four and five ended in hung juries. In the sixth trial, the one that was before the Supreme Court, Flowers was convicted, but the Justices found that Evans had again discriminated against black people, and thus Flowers, in jury selection, and they overturned his conviction. (The breathtaking facts of the case and its accompanying legal saga are described at length on the American Public Media podcast “In the Dark.”)
As Kavanaugh recounted in his opinion, Evans’s actions were almost cartoonishly racist. To wit: in the six trials, the State employed its peremptory challenges (that is, challenges for which no reason need be given) to strike forty-one out of forty-two African-American prospective jurors. In the most recent trial, the State exercised peremptory strikes against five of six black prospective jurors. In addition, Evans questioned black prospective jurors a great deal more closely than he questioned whites. As Kavanaugh observed, with considerable understatement, “A court confronting that kind of pattern cannot ignore it.“
But Thomas can, and he did. Indeed, he filed a dissenting opinion that was genuinely outraged—not by the prosecutor but by his fellow-Justices, who dared to grant relief to Flowers, who has spent more than two decades in solitary confinement at Mississippi’s notorious Parchman prison. Thomas said that the prosecutor’s behavior was blameless, and he practically sneered at his colleagues, asserting that the majority had decided the Flowers case to “boost its self-esteem.” Thomas also found a way to blame the news media for the result. “Perhaps the Court granted certiorari because the case has received a fair amount of media attention,” he wrote, adding that “the media often seeks to titillate rather than to educate and inform.”
The decision in Flowers was 7–2, with Neil Gorsuch joining Thomas’s dissent. The two have become jurisprudentially inseparable, with Gorsuch serving as a kind of deputy to Thomas, as Thomas once served to Antonin Scalia. But Thomas usually has a majority of colleagues on his side, in a way that often eluded Scalia. The Flowers case notwithstanding, Thomas now wins most of the time, typically with the assistance of Chief Justice John Roberts, Samuel Alito, and Kavanaugh.
Despite Thomas’s usual silence on the bench (he did ask a question during the Flowers argument), he is clearly feeling ideologically aggressive these days. In his Flowers dissent, Thomas all but called for the overturning of the Court’s landmark decision in Batson v. Kentucky, from 1986, which prohibits prosecutors from using their peremptory challenges in racially discriminatory ways. Earlier this year, he called for reconsideration of New York Times Co. v. Sullivan, from 1964, which established modern libel law, with its protections for journalistic expression. And in a decision earlier this month, Thomas made the case that the Court should be more willing to overturn its precedents. It’s customary for the Justices to at least pretend to defer to past decisions, but Thomas apparently no longer feels obligated even to gesture to the Court’s past. As he put it last fall, in a concurring opinion in Gamble v. United States, “We should not invoke stare decisis to uphold precedents that are demonstrably erroneous.” Erroneous, of course, in the judicial world view of Thomas. The Supreme Court’s war on its past has begun, and Clarence Thomas is leading the charge.
Racial bias largely seeps in through what’s called “peremptory” challenges: the ability of a prosecutor — and then a defense attorney — to block a certain number of potential jurors without needing to give the court any reason for the exclusion.
The number of challenges allowed varies by state, but commonly 15 or more are permitted. Folk wisdom, among those familiar with the song and dance, is that prosecutors use these challenges to remove nonwhite jurors, who are statistically more likely to acquit, while defense attorneys — who can step in only after the pool has been narrowed by prosecutors — typically counteract by removing more white jurors.
Based on statewide jury selection records, our Jury Sunshine Project discovered that prosecutors remove about 20 percent of African-Americans available in the jury pool, compared with about 10 percent of whites. Defense attorneys, seemingly in response, remove more of the white jurors (22 percent) than black jurors (10 percent) left in the post-judge-and-prosecutor pool.
Prosecutors in urban areas, which tend to have larger minority populations, remove nonwhite jurors at a higher rate than prosecutors do in other parts of the state. Finally, we discovered, to our surprise, that judges also remove black jurors “for cause” about 20 percent more often than they remove available white jurors.
.. First, the defendant is not judged by a jury that reflects a cross-section of his or her community — a violation of the courts’ interpretation of the Sixth Amendment. In a system that already disproportionately prosecutes people of color, hedging the constitutional rights of defendants can be particularly harmful.
Second, excluded parts of the community become more cynical about the justice system when they repeatedly see barriers to jury service. If people from certain similar neighborhoods are constantly getting booted from juries, then it’s tempting for residents there to view the police — and prosecutors — as hostile occupiers rather than partners in public safety.
.. In theory, the Equal Protection Clause of the Constitution, as interpreted in Batson v. Kentucky, prevents attorneys from removing jurors on the basis of race. But “Batson claims” rarely succeed because they require the judge to declare the proposed stated reason for removal was only a pretext hiding discriminatory intent — a notoriously steep standard.
.. The new rule makes it easier to stop juror removals rooted in implicit racial bias by outlawing peremptory challenges defended with explanations highly correlated with race, like “prior contact with law enforcement” or “living in a high-crime neighborhood.”
Another answer — which could gain support in even the toughest of “tough on crime” red states — is simply to publish more information on jury selection. The details of judge and attorney removals of jurors is already public record, but those details usually remain buried in the hard-copy files of court clerks across the country.
While this year’s successful research shows how journalists and scholars can collect these far-flung records into a useful database, the process can take months or years of driving from courthouse to courthouse, digging out the files of cases that went to trial, recording the clerk’s notations from those files and turning to online resources for background information on judges and lawyers.
States could instead — without much work — just plainly make all jury selection information available online and keyword searchable, easing access for journalists and voters alike.
In most states, voters choose their prosecutors and their judges; and with journalists on hand to swiftly analyze digitized public records of the jury selection habits of prosecutors and judges, citizens could evaluate incumbents’ tendencies as a measure of success or failure.