The Supreme Court hasn’t made Curtis Flowers a free man, but they came as close to that outcome as they could without making fundamental changes to the American legal system.
The issue, ostensibly, was racial bias in jury selection. Brett Kavanaugh’s opinion didn’t just argue that District Attorney Doug Evans systematically struck every black juror in sight, the newest Supreme Court justice emphasized that Evans asked each prospective black juror an average of twelve questions (as opposed to one question for white folks) because he was looking for a race-neutral pretext for striking them.
According to the Batson rule, prosecutors can’t use race as a consideration during jury selection. For each strike, a “race-neutral reason” must be provided to the court to justify the strike. Doug Evans, Kavanaugh asserts, struck jurors because they were black and then went looking for a pretext.
This sounds reasonable until we consider that, in practice, any old reason will do so long as it doesn’t reference race. The explanation given for striking a particular person need not be compelling, or even plausible. So long as a prosecutor winks at the judge and claims that race has nothing to do with it, the judge will go along.
This explains why Kavanaugh had to do much more than argue that the reasons Doug Evans gave the judge for striking black men and women from the jury pool were unconvincing; he had to demonstrate that (a) in cases featuring a black defendant, Evans always strikes as many jurors as possible, and (b) that the prosecutor asks far more questions of black members of the jury pool than he asks of their white counterparts.
This wasn’t difficult since the producers of the now-famous In the Dark podcast, and the defense team that drew up the Batson challenge on Mr. Flowers behalf, have provided oceans of material for this purpose. There have now been six separate trials in this long Evans v. Flowers saga (you can find oodles of background here) and, it has been persuasively argued, Evans has employed the same biased strategy every time.
Moreover, his critics attest, Evans always works this way when the defendant is African American.
But all Kavanaugh had to do, legally, was demonstrate that in the case of a single member of the venire, Carolyn Wright, Evans displayed racial bias. “In reaching that conclusion,” Kavanaugh concluded, “we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. We reverse the judgment of the Supreme Court of Mississippi, and we remand the case for further proceedings not inconsistent with this opinion.”
But is this decision really about Batson? Samuel Alito, one of the most conservative justices to sit on the court in recent memory, doesn’t think for a minute that Evans violated Batson in the sixth trial of Curtis Flowers.
If another prosecutor in another case in a larger jurisdiction gave any of these reasons for exercising a peremptory challenge and the trial judge credited that explanation, an appellate court would probably have little difficulty affirming that finding.
For the very reasons provided above, Alito is right. Prosecutors don’t have to give persuasive reasons for their strikes during voir dire, they simply have to come up with . . . something. Everybody in the courtroom, the judge included, may know the prosecutor is perpetrating a brazen falsehood, but it doesn’t matter.
All the same, Alito went along with the majority because “this is not an ordinary case, and the jury selection process cannot be analyzed as if it were. In light of all that had gone before, it was risky for the case to be tried once again by the same prosecutor in Montgomery County.”
Alito argues that when a case has twice resulted in hung juries and three other convictions have been reversed by the Mississippi Supreme Court on the basis of racial bias and prosecutorial misconduct, you’re sitting on a time bomb.
It’s true, Alito realizes, that the Mississippi high court upheld the most recent Flowers conviction, but giving this case back to a man like Evans was an obvious mistake. It was like telling Evans, “you messed this case up because you’re so racially biased you can’t even survive a Batson challenge in fricking Mississippi. So, here, have another go.”
In my role with Friends of Justice, I have repeatedly watched courts behave very differently when the proceedings are being scrutinized by prestigious critics, especially in high profile cases like Flowers. When the Mississippi Supreme Court last ruled on this case, the only sustained extra-legal support Curtis Flowers was getting was my blogging and the few bits of journalism it had inspired. The Mississippi court wasn’t worrying about backlash.
The relatively liberal Mississippi Supreme Court that found Evans guilty of flagrant racial bias back in the day would have reversed the latest conviction as well. But it is also true that the much more conservative court in place now wouldn’t have reversed Evans in the first place. There has been a dramatic shift to the right in the Mississippi judiciary, largely related to “tort reform”, and these things have consequences.
But, as everyone knows, the Supreme Court of the United States has also lurched rightward in recent years, and yet seven justices, two of them staunch conservatives, sided with Curtis Flowers.
The good folks associated with In the Dark are too humble to take all the credit for this blessed consummation, so I will do it for them. A single podcast has dissected the case against Curtis with surgical precision. By the time they were done, there was nothing left of it.
I could argue that In the Dark was simply fleshing out arguments I made a decade ago, but they did far more than that. Friends of Justice lacks the standing and the resources In the Dark brings to the table. They added statistical analysis to their narrative and repeated interviews with witnesses and other people of interest paid off in amazing admissions and revelations (the most notable being the recantation of jailhouse snitch, Odell Hallmon). This is unprecedented.
Justices like Samuel Alito don’t want to explain to a watching world why they sided with a man like Doug Evans. When I first investigated the Flowers case a decade ago, the Mississippi legal community was vaguely aware of the case, and almost everyone thought the state’s case was rock solid–those witnesses couldn’t all be wrong.
Now, hardly anyone outside of Winona, and Doug Evans’ legal team in Grenada, thinks that way. The Jackson Clarion-Ledger, a paper that once parroted Evan’s line, now reproduces material produced by In the Dark. You had to know how things used to be to feel the change in climate.
Doug Evans brags that he hasn’t listened to a single episode of the podcast and many of his white fans in Winona have clearly followed suit. Giving In the Dark a hearing would feel like breaking faith with the families of the four innocent people slaughtered twenty-three years ago.
Benny Rigby, the widowed husband of victim Carmen Rigby, was horrified by the high court’s ruling.
“How would you feel if it was your wife?” Benny asked a Clarion-Ledger reporter this morning. “There is no justice. If he was white, he would have been executed by now.”
No one who had listened to even a single In the Dark episode could talk like that.
Which brings us to Clarence Thomas. After arguing (quite persuasively) that Batson is a crock because anyone prosecuting a black defendant would try to keep blacks off the jury, Thomas proposed the real reason why seven justices sided with the defendant.
Perhaps the Court granted certiorari because the case has received a fair amount of media attention. But if so, the Court’s action only encourages the litigation and relitigation of criminal trials in the media, to the potential detriment of all parties—including defendants. The media often seeks “to titillate rather than to educate and inform.
Again, no one who has actually listened to In the Dark would make such a reckless assertion. But Thomas likely hasn’t listened, and for much the same reason most white folks in Winona remain clueless. Let me say it again: no one who listened to season two of In the Dark from beginning to end would want to have anything to do with this prosecution.
Alternatively, there are few black residents of Montgomery County who haven’t heard the calm, unhurried voice of Madeline Baran take the case against Curtis Flowers apart with devastating clarity.
So, where do we go from here?
Curtis Flowers will not be released to the free world anytime soon, but he will be transferred from his solitary cell on Parchman’s death row to pre-trial detainment. This will likely be the prison in Vaiden, just south of Winona, where he has been incarcerated previously. The staff in the Vaiden facility know and like Curtis and he will likely be leading the singing whenever a preacher comes to call, just like he used to. More to the point, his family and friends will now be allowed contact visits instead of speaking via phone through a Plexiglas barrier.
That’s not the outcome most of us would have liked, but, as one who has visited with Curtis in both settings, I can tell you it is a vast improvement.
Finally, the question everybody’s asking: will Doug Evans take Curtis to trial a seventh time?
No, for reasons I have previously laid out, there will be no seventh trial. There is no case left to try and Curtis now commands the best legal team money can’t buy. Also, if Evans tries this case, thousands of Flowers supporters will converge on this tiny community from day one. No one in Mississippi’s legal establishment wants another Jena Six scenario on their hands.
It is also technically possible that Curtis could plead guilty in exchange for a sentence of time served. I can’t see that happening. Whoever perpetrated this crime needs to be locked up for life as a matter of public safety. More to the point, Curtis has always proclaimed his innocence and that won’t change now.
So we have ourselves a stand-off. Doug Evans has spent a quarter century prosecuting this case and doesn’t want to walk away. But he will be under tremendous, and steadily increasing, pressure to do just that.
Will we ever know who slaughtered four innocent people in the Tardy furniture store back in 1996? My guess is that the real killers are already serving life sentences and that they will never confess. You can read my take here.
But now it’s time to celebrate the best short-term outcome the friends and family of Curtis Flowers could have hoped for. Praise God from whom all blessings flow!
