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?
The other part of the story here is Justice Clarence Thomas’s shameful dissent in the case. It is worthy of great disdain, and others already have said so. But why the surprise? Thomas consistently sheds any pretense of reason or objectivity when it comes to these cases of blatant prosecutorial misconduct. His hoary dissent in Flowers v. Mississippi, like so many other opinions he’s written in criminal cases over the years, reads in its emphasis on the gruesomeness of the underlying crime and the pain of the family members of the victims just like a district attorney’s opening statement or a police chief’s “perp walk” press conference.
When I read what Thomas wrote about Flowers, the way in which he tried to justify Evans’s racist misconduct, I thought immediately of Juan Smith and a case the justices decided in January 2012. Smith, a black man, was convicted of first-degree murder in Louisiana based on the testimony of a single eyewitness. After his trial he proved that police and prosecutors had intentionally withheld statements made by that eyewitness that contradicted his trial testimony and undermined his identification. Under Supreme Court precedent from 1963 known as the Brady rule, for a case called Brady v. Maryland, the state must turn over evidence that may be favorable to the defense. Over and over again, Louisiana’s appeals courts refused to recognize the Brady violation that had undermined Smith’s conviction.
The Smith case in Louisiana a decade ago was about as simple and straightforward a case of injustice as the Flowers case has been in Mississippi. And, sure enough, the Supreme Court took the case for review back then, sided with Smith, and overturned his conviction. Only one justice dissented in Smith v. Cain. It was Thomas, of course, and his rationale was just as bogus as it was in Flowers. Who’s to say, Thomas argued in Smith, that the undermining the credibility of the sole witness in a murder case might have prompted jurors to acquit Smith? It was an argument that would have been laughed out of law school.
Who’s to say, Thomas similiarly wrote last week in Flowers, that a white prosecutor is engaging in racial discrimination when he strikes from a capital jury in Mississippi 41 of 42 black candidates in a case tried 6 times against a black defendant? It would almost be funny, this level of disingenuousness from a justice, if it weren’t so sad. Sad for Justice Neil Gorsuch, who tethered himself here to Thomas. Sad for those who defend Thomas as some visionary of ordered justice. Sad for those who argue that Mississippi’s judicial system has moved far beyond its wretched past. At least today, for once, the bad joke isn’t on Flowers.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.