Late last week the United States Supreme Court decided Flowers v. Mississippi, 588 U.S. ___, ___ S. Ct. ___ (Jun. 21, 2019), holding in the context of a Batson challenge that the trial court committed clear error in concluding that the State’s peremptory strike of a black prospective juror was not motivated in substantial part by discriminatory intent. This post provides a summary of Flowers and also contains links to other School of Government resources discussing Batson.
In the context of a Batson challenge, the trial court committed clear error in concluding that the State’s peremptory strike of a black prospective juror was not motivated in substantial part by discriminatory intent
Flowers v. Mississippi, 588 U.S. ___, ___ S. Ct. ___ (Jun. 21, 2019). In this murder case resulting in a death sentence, the Court held that the trial court committed clear error in concluding that the State’s peremptory strike of a black prospective juror was not motivated in substantial part by discriminatory intent. The defendant Flowers, who is black, allegedly murdered four people at a furniture store in Winona, Mississippi, three of whom were white. Flowers was tried six separate times for the murders; the same lead prosecutor conducted each of the trials. A conviction in the first trial was reversed by the Mississippi Supreme Court on grounds of prosecutorial misconduct, with the court not reaching a Batson challenge raised in that proceeding. A conviction in the second trial was reversed by the Mississippi Supreme Court on grounds of prosecutorial misconduct. A conviction in the third trial was reversed by the Mississippi Supreme Court on grounds that the State violated Batson. The fourth and fifth trials ended in hung jury mistrials. A Batson challenge arising in the sixth trial is the basis of the instant case.
Under principles of equal protection, Batson v. Kentucky, 476 U.S. 79 (1986), prohibits the use of peremptory strikes in a racially discriminatory manner. A Batson challenge is a three-step process. First, the party asserting the challenge must make a prima facie case of discrimination in the use of a peremptory strike. If a prima facie case is established, the burden shifts to the party subject to the challenge to provide a race-neutral reason for the strike. In the third step, the trial judge assesses whether purposeful discrimination has been proved, examining as part of this assessment whether the proffered race-neutral reasons for the strike in fact are pretext for discrimination.
In assessing the Batson issue in the instant case, the Court said that four categories of evidence loomed large:
(1) the history from Flowers’ six trials, (2) the prosecutor’s striking of five of six black prospective jurors at the sixth trial, (3) the prosecutor’s dramatically disparate questioning of black and white prospective jurors at the sixth trial, and (4) the prosecutor’s proffered reasons for striking one black juror (Carolyn Wright) while allowing other similarly situated white jurors to serve on the jury at the sixth trial.
The Court addressed each of these categories in turn. With regard to the history from Flowers’ trials, the court first noted that under Batson a challenger need not demonstrate a history of discriminatory strikes in past cases – purposeful discrimination may be proved solely on evidence concerning the exercise of peremptory challenges at the particular trial at issue. However, Batson does not preclude use of such historical evidence, and the “history of the prosecutor’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that his use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent. Over the course of the first four trials, the State “used its available peremptory strikes to attempt to strike every single black prospective juror that it could have struck.” The Court further noted that a Batson challenge in the second trial was sustained by the trial court and that the Mississippi Supreme Court reversed the conviction obtained in the third trial because of a Batson violation.
Turning to the events of the sixth trial, the Court noted that the State struck five of six black prospective jurors and that this, in light of the history of the case, suggested that the State was motivated in substantial part by discriminatory intent. The Court also noted the State’s “dramatically disparate questioning of black and white prospective jurors.” The five black prospective jurors who were struck were asked a total of 145 questions by the State. In contrast, the State asked the 11 seated white jurors a total of 12 questions. With regard to this disparate questioning, the Court found that the record refuted the State’s argument that differences in questioning was explained by differences in the jurors’ characteristics. Finally, with regard to a particular black prospective juror, Carolyn Wright, the Court found that the State’s peremptory strike was motivated in substantial part by discriminatory intent. The State said that it struck Wright in part because she knew several defense witnesses and worked at a Wal-Mart where Flowers’ father also worked. The Court noted that Winona is a small town and that several prospective jurors knew many individuals involved in the case. It further noted that the State did not engage in a meaningful voir dire examination on this purported basis for striking Wright with similarly situated white potential jurors. The State also misstated the record while attempting to provide a race-neutral explanation of its strike of Wright to the trial court. The Court explained that “[w]hen a prosecutor misstates the record in explaining a strike, that misstatement can be another clue showing discriminatory intent.” The court concluded its analysis of the State’s strike of Wright by explaining that its precedents require that the strike be examined “in the context of all the facts and circumstances,” and that in this light “we conclude that the trial court clearly erred in ruling that the State’s peremptory strike of Wright was not motivated in substantial part by discriminatory intent.”
Justice Thomas, joined in part by Justice Gorsuch, dissented. In Thomas’s view, “[e]ach of the five challenged strikes was amply justified on race-neutral grounds timely offered by the State at the Batson hearing.”
Further Reading. Batson challenges are discussed in extensive detail in Chapter 7 of Raising Issues of Race in North Carolina Criminal Cases, a component of the Indigent Defense Manual Series. Batson also is discussed in the Jury Selection chapter of the North Carolina Superior Court Judges’ Benchbook and the Jury Selection section of NC PRO. In addition, Batson and related cases have been the subject of numerous posts on this blog (here, here, and here).
No disrespect, but please read the dissent for a more thorough analysis of the facts. While it is a dissent, Justice Thomas eviscerated the majority opinion, using past precedents of the Court, facts in the record the majority gloss over or ignore. He especially attacked the broadening of the scope of inquiry to include past trials. The fact that the juror at issue, Juror Wright, had been sued by business owned by the victims and that suit had evolved to a garnishment action that was carried through by a witness (murder victims’ daughter) who testified in the case! Not to mention that Juror Wright denied that actual status of the law suit where the State introduced the law suit judgment and garnishment as a race neutral reason to strike Juror Wright and to counter defense arguments. Another concern is the emphasis that the majority put on the number of questions asked, not the content or substance of the questions asked but on the mere number of questions asked as some implication of bias. Any prosecutor or defense attorney should worry about the perception that arises from the mere number of questions.