On June 21, 2019, the United States Supreme Court decided Flowers v. Mississippi, No. 17-9572, holding that the state court committed clear error in concluding that the state’s peremptory strike of a black prospective juror in a defendant’s sixth murder trial was not motivated in substantial part by discriminatory intent in violation of Batson.
Curtis Flowers, who is black, has been tried six times for the murder of four people at a furniture store in the small town of Winona, Mississippi. His first three trials resulted in convictions that were overturned by the Mississippi Supreme Court. The first two were overturned due to prosecutorial misconduct. The third was overturned because the state discriminated against black prospective jurors during jury selection, violating the principles of Batson v. Kentucky, which prohibits race-based discrimination when using peremptory challenges in criminal trials. The fourth and fifth trials resulted in mistrials because the juries could not reach agreement. Over four of the first five trials, the state used peremptory challenges to strike 36 prospective black jurors; none of the challenges were used to strike white jurors.
In the sixth trial, the state used peremptory challenges to strike five of six potential black jurors, resulting in a jury of 11 white people and one black person. Flowers was convicted, and his conviction was upheld by the Mississippi Supreme Court, which concluded that the state did not violate Batson in striking five prospective black jurors.
The Supreme Court reversed and remanded, concluding that the state violated Batson. The Court pointed to four critical facts to conclude that the state’s use of peremptory strikes was discriminatory. First, over the six trials, the state struck 41 of the 42 prospective black jurors it could have struck (at the third trial alone, the state used all 15 of its peremptory strikes to strike 15 prospective black jurors.) Second, in the trial at issue (the sixth), the state used peremptory strikes against five of six potential black jurors. Third, at the sixth trial, the state’s questioning of black prospective jurors was dramatically different from its questioning of white prospective jurors—asking the black prospective jurors who were struck 145 questions and asking the seated white jurors a total of 12 questions. Finally, the state struck one black prospective juror who was similarly situated to white prospective jurors whom the state did not strike. Looking at the facts as a whole, and declining to decide if one fact alone would justify reversal, the Court held that the trial court committed clear error by concluding the state did not violate Batson.
Justice Kavanaugh delivered the opinion of the Court, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan joined. Justice Alito filed a concurring opinion. Justice Thomas filed a dissenting opinion, in which Justice Gorsuch joined in part.