Today, the U.S. Supreme Court will hear oral argument in Mississippi v. Flowers. The issue before the court is whether the Mississippi Supreme Court erred in its application of Batson v. Kentucky. For more background on the case, go here. I will post transcripts as soon as they are ready.
The Supreme Court has granted cert in Flowers v. Mississippi. The specific issue to be briefed by the parties is
did the Mississippi Supreme Court properly apply Batson v. Kentucky?
This case, which has already been to the Supreme Court once before, was recently featured in the podcast In the Dark.
Here is the write up in SCOTUSBlog
In Flowers v. Mississippi, the justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi. Flowers was tried six times. During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials. Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors.
The Mississippi Supreme Court rejected Flowers’ challenge to Evans’ jury selection, but the U.S. Supreme Court ordered the state supreme court to reconsider that ruling in light of the Supreme Court’s 2016 decision in Foster v. Chatman, in which the court held that the defendant in a capital case had shown intentional discrimination in the selection of jurors. When the case went back to the Mississippi Supreme Court, that court again upheld the ruling for the state, reasoning that Evans’ past discrimination did not affect its analysis. Flowers then returned to the justices, asking them to weigh in on whether the Mississippi Supreme Court was correct.
Here is a local article about the case.
Here is an excellent story about the troubled life of Russell William Tucker who is currently on death row in North Carolina. It appears that the only thing that may save his life is the unconstitutional jury selection practices of North Carolina prosecutors in the 1990s.
Here is an excellent report that looks at the District Attorney's office in one Mississippi county that has repeatedly removed black jurors at a much higher rate than white jurors. The report was thoroughly written and provides insight on how the drafters of the report actually crunched the numbers. Among other things, the report found that prosecutors were four times more likely to exclude black jurors than white jurors.
features.apmreports.org: Mississippi D.A. has long history of striking many blacks from juries
Jonathan Abel
Batson v. Kentucky is widely regarded as a failure. In the thirty-plus years since it was decided by the Supreme Court, the doctrine has been subjected to unrelenting criticism for its inability to stop the discriminatory use of peremptory challenges. The scholarly literature is nearly unanimous: Batson is broken. But this Article approaches Batson from a different perspective, focusing on Batson’s appellate virtues rather than its trial shortcomings. This change in focus reveals a number of ways in which the Batson doctrine provides opportunities on appeal that do not exist at trial. In short, this Article argues that appellate Batson punches far above its trial weight.
Batson’s appellate virtues have been overlooked by the literature, and this Article’s first task is to illustrate them. This Article’s second project is to reorient the discussion about Batson by placing the doctrine in the proper context. In comparison to other antidiscrimination claims—and to other postconviction claims, more broadly—Batson has a real luster. Though not often acknowledged as such, Batson is the one meaningful doctrine for fighting discrimination in the jury-selection process and in the criminal justice system more generally. Enormous pressure is put on Batson as a result, and maybe Batson is not up to the task. But with Batson’s appellate dimension, the doctrine is more up to the task than previously thought. This Article’s final goal, in light of Batson’s appellate virtues, is to suggest a reconceptualization of Batson as not merely a jury-selection doctrine but rather a multipurpose vehicle capable of fighting discrimination wherever it occurs in the trial process—even if the discrimination takes place outside of jury selection. For appellate judges who want to correct the injustice of a trial stained by discrimination, a broad-based Batson doctrine may be their best, last, and only hope.
According to the new Washington Supreme Court General Rule 37:
Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons that the peremptory challenge has been exercised.
(e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain Its ruling on the record.
(f) Nature of Observer. For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.
The Washington ACLU which backed the new rule states that "not only is intentional race discrimination outlawed, but also peremptory challenges based on 'implicit, institutional, and unconscious' race and ethnic biases."
The WA SCT Rule, which goes in to effect at the end of the month, is available here. The report discussing the rule is available here.
Recently, the ABA Criminal Justice section unanimously passed Resolution 108D, which was co-sponsored by the National LGBT Bar Association. Resolution 108D urges courts to extend Batson protections to sexual orientation and gender identity/expression. Most courts do not extend Batson this far. However, the 9th Circuit Court of Appeals along with a few states have done so at least with respect to a juror's sexual orientation. Additionally, federal legislation on this topic has been regularly introduced the past few years, but has not gained much traction. For more on this topic go here.
Peter Joy
Kevin McMunigal
Racial Discrimination and Jury Selection