If the Supreme Court were a bingo game, Justice Samuel Alito would ordinarily be a free space for prosecutors. The former U.S. Attorney typically spends oral arguments in criminal cases grilling defense attorneys and probing for reasons to side with prosecutors or police officers.
Yet even Alito looked defeated by the facts of Flowers v. Mississippi, a case involving an African-American man who was tried a staggering six times for the same homicide. At each trial, Curtis Flowers was prosecuted by District Attorney Doug Evans. Even though the Mississippi courts twice slapped down Evans’ unconstitutional attempts to exclude African-Americans from Flowers’ jury, Evans still struck five black jurors from the sixth jury and did so under highly dubious circumstances.
Though Alito initially suggested that Evans’ decision to strike these five black jurors could have been acceptable if the Supreme Court could ignore Evans’ long history of racist juror exclusion, the prosecutor-turned-justice conceded that Evans’ history was “troubling” and “cause for concern.” When Jason Davis, the Mississippi lawyer assigned the task of defending Evans’ conduct, stepped up to argue the state’s case, Alito asked him if there was any way the state attorney general’s office could have intervened to take the case away from Evans (the answer was no, unless Evans asked to be relieved of the case).
Most of the bench joined this pile-on. Justice Sonia Sotomayor noted that, when she was a state prosecutor, her office would have substituted a different lawyer “long before the sixth trial.” Chief Justice John Roberts labeled Flowers an “extreme” case and seemed most interested in probing what rule should govern in a future case where the prosecution’s misconduct is less obvious. Justice Elena Kagan spent much of Davis’ time pointing to devastating facts in the record and then staring at him, silently blinking as he struggled to explain away Evans’ behavior.
Even Brett Kavanaugh, the archconservative judge placed on the Court by President Donald Trump, appeared shocked by Evans’ conduct. Evans, Kavanaugh noted, struck 41 of the 42 African-American jurors he had the opportunity to strike over the course of many trials. That seemed to suggest Evans had applied a “stereotype” which holds that black jurors are prone to favor African-American defendants.
Attorney Sheri Lynn Johnson, who argued the case on behalf of Mr. Flowers, appeared so confident of victory that she ended her initial presentation early and offered to waive her opportunity to present a rebuttal to Davis’ arguments.
The only member of the court who appeared even minimally sympathetic to the state was Justice Clarence Thomas, who broke with his normal practice of remaining silent to ask whether Flowers’ own trial counsel struck any jurors and about the race of those jurors (they were white).
As Sotomayor swiftly pointed out, the race of jurors struck by defense counsel is irrelevant to the question of whether the prosecution improperly excluded black jurors. Thomas, however, has a long history of marching to a constitutional drummer that no one else can hear. So it’s possible that he plans to write a dissent calling for much of the current doctrine governing racial juror discrimination to be overruled.
That doctrine begins with a case called Batson v. Kentucky, which governs how judges must probe allegations that a prosecutor excluded a potential juror because of the juror’s race. In most jurisdictions, prosecutors and defense counsel may each exercise a set number of “peremptory strikes” — that is, they may strike a potential juror for any reason they choose, even if that reason is arbitrary. The Constitution does not permit prosecutors, however, to strike a juror because of their race.
Under Batson, when a defendant raises a colorable claim that a juror was removed for racist reasons, the prosecutor must offer a race-neutral explanation for their decision to remove that juror. The judge must then decide if that reason is credible, or if it is merely a pretext to cover up the true, racist reason for striking a particular juror.
Two of Flowers’ previous trials ended in a mistrial. Two others ended in convictions that were thrown out due to prosecutorial misconduct unrelated to jury selection. But the Mississippi Supreme Court threw out a third conviction due to Batson violations, and a trial judge ruled that Evans also violated Batson in Flowers’ second trial. Plus, as Kavanaugh noted, Evans appeared determined to keep African-Americans off Flowers’ jury regardless of whether or not Mississippi’s judges called him out on this behavior.
So there’s little doubt that Flowers’ conviction will be tossed out, and he may wind up being tried a seventh time. It is far less certain, however, what the Supreme Court will say in its opinion backing Flowers.
Alito, for his part, pointed repeatedly to the fact that there were legitimate reasons to exclude many of the African-American jurors that Evans struck in the sixth trial. Justice Alito appeared bothered that Evans’ history of racism so taints Evans’ conduct that it spoiled what otherwise could have been a perfectly good guilty verdict. That suggests that, if Alito gets his way, the court will produce a narrow opinion that applies only to prosecutors with a history of similarly egregious misconduct.
Roberts appeared to have no tolerance for Evans’ blatantly racist conduct. But, as is often the case when Roberts confronts allegations of race discrimination, he also appeared very concerned that his court should not announce a rule that could lead to innocent white prosecutors being accused of racism. During Johnson’s time at the podium, Roberts asked what the court should make of a prosecutor with 30 years of experience who violated Batson 20 years ago, and whether that single older violation would justify tossing out a recent conviction.
(Johnson, for her part, answered that an old, isolated violation would only be “weakly probative” of whether the prosecutor violated Batson in a more recent case.)
The liberal justices, meanwhile, seemed cautious about pressing their luck. Rather than pressing for a sweeping expansion of Batson, Justices Ruth Bader Ginsburg, Sotomayor, and Kagan all probed deep into the record for examples of white jurors that Evans treated better than black jurors — under existing Batson law, such disparate treatment is a common reason to toss out a conviction due to race discrimination.
But the unexpected wild card on the bench may be Kavanaugh. As a law student, Kavanaugh published a piece in the Yale Law Journal that criticized racial jury discrimination and suggested that Batson may not have gone far enough. “Courts must not allow the spirit of Batson to be diminished by misguided allegiance to the peremptory challenge,” the young Kavanaugh wrote. His questions during the Flowers argument suggest that he still holds similar views.
Of the Court’s five conservatives, Kavanaugh appeared the most outraged by Evans’ conduct and the most willing to join an opinion reaching beyond the narrow facts of this case. “We can’t take [Evans’] history out of this!” Kavanaugh proclaimed early in Davis’ presentation on behalf of the state. That, combined with his allegation that Evans engaged in racial stereotyping suggests that the liberals may find an unlikely ally in Kavanaugh if they want to push for a more aggressive majority opinion.
The upshot is that Flowers is likely to prevail. And if Evans or the state of Mississippi has any sense, they will find a way to assign Flowers’ seventh trial to a different prosecutor. Whether the Court’s decision in Flowers reaches beyond the unusual facts of this case, however, could very well rest in Brett Kavanaugh’s hands.