The Supreme Court Rights a Historic, Racist Wrong in Mississippi
By Andrew Cohen, Brennan Center for Justice
The Supreme Court’s decision Friday to overturn the conviction and death sentence of Curtis Flowers in Mississippi says less about the seven justices who did the right thing than it does about the broken justice system that brought the case to them in the first place. Flowers so far has been tried six times for a 1996 quadruple murder he is accused of committing — which may or may not be a record. And District Attorney Doug Evans, the prosecutor in all six trials, has never been able to convict Flowers without also violating the defendant’s constitutional right to a fair trial free from misconduct and racial discrimination tainting jury selection.
Over and over again Evans, who is white, blatantly cheated to try to ensure that Flowers, who is Black, was not judged by Black jurors. All Justice Brett Kavanaugh and six of his colleagues did Friday with their straighforward opinion was to acknowledge the extent of the cheating, the racist pattern behind it, and the fact that such a pattern, over so many trials and so many years, could not rationally be explained as something other than intentional discrimination in jury selction that violates the court’s precedent announced decades ago in Batson v. Kentucky. “In reaching that conclusion,” Kavanaugh wrote, “we break no new legal ground.”
Good news for Flowers, who now is out from yet another tainted murder conviction with the whole world watching to see whether Evans tries for a seventh time to send Flowers to a lethal injection. And bad news for Mississippi’s justice system, exposed again for failing to right a grievous wrong. Flowers never should have been tried six times. After three wrongful convictions and two hung juries, the case should have ended in some more dignified way. And It all starts with Evans, another so-called “tough-on-crime” district attorney, who ran for public office nearly three decades ago as a “fine Christian man with unquestioned integrity” and who has faced only one hapless challenger since he won office in 1991.
Evans’ constituents keep loyally electing him, even though they know that he’s engaged in repeated bouts of flagrant misconduct in Flowers’ case. They keep electing him even though the Mississippi Supreme Court, to its credit, called out Evans for that misconduct and overturned the first three of Flowers’ four convictions. The state justices weren’t exactly ambiguous about their views of what Evans had done, either. “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,” they wrote in 2007, referring to the Supreme Court rule designed to prohibit prosecutors from excluding potential jurors based on race.
In another jurisdiction, all of this misconduct, all of these racist tactics in jury selection, likely would have caught up to a prosecutor and he or she would be prosecutor no more. In these circumstances such a misguided prosecutor, such an embarrassing one, would have lost the trust and confidence of voters who eventually would see these successively unsuccessful trials as a frustrating waste of time and money. If Flowers is as obviously guilty and worthy of execution as Evans thinks he is, in other words, why has Evans so doggedly insisted on violating the Constitution to make the jury white?