Prosecutorial Discrimination and Jury Selection

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Curtis Flowers has been tried six times, for a crime he committed in 1996. Flowers has been convicted to death three times, however each conviction has come from the same prosecutor. Doug Evans—the lead prosecutor—violated the Batson rule by using each of his peremptory strikes to exclude African-Americans from the juror pool.1 In the sixth trial, Evans allowed one African-American juror (among six) to be seated on the jury, resulting in a jury with 11 white Americans and 1 African-American. Flowers was convicted and sentenced to death at this trial.

At the US Supreme Court, Flowers seemed to have the support of the four liberal justices, Kavanaugh, and potentially Roberts. The petitioner (Flowers) asserted that Doug Evans began the sixth trial with an “unconstitutional end in mind, to seat as few African Americans as he could.” Justice Elena Kagan echoed this view, and stated that the difference in examinations of white and black jurors was “staggering.” In 2010, Evans asked 29 questions to each black juror that he rejected, and only 1 or 2 questions to the white jurors he seated.

Justice Kavanaugh also noted that as a whole, Evans had removed 41 of 42 African-Americans from the jury pool during Flowers’ trials. Kavanaugh recognized that the Batson rule concerned community confidence in the fairness of the criminal justice system, in light of a history of all-white juries convicting black defendants. Given the history of the case, he noted that a clear trend has emerged in Evans’ jury selection. The Supreme Court’s newest justice may act as a swing vote, in favour of a Mississippi death-row inmate’s claim that he was victim of racial discrimination in jury selection.

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC

1 In Batson v Kentucky [1986], the Supreme Court ruled that using peremptory strikes to remove jurors based on race violates the Fourteenth Amendment.