Supreme Court to Consider Whether Exclusion of Jurors Based on Race Violated Curtis Flowers’ Right to a Fair Trial

The Supreme Court has agreed to hear an important case involving a Mississippi prosecutor’s persistent efforts to prevent black residents of Mississippi from sitting on juries when a black defendant is accused of a crime. The outcome of the appeal may prevent the execution of an innocent man.

Multiple Murders

The owner of Tardy Furniture in Winona, Mississippi and three of her employees were murdered in 1996. Three of the victims died from a single shot to the head. The fourth was shot twice.

No murder weapon was recovered at the scene, although the police found one unfired .380 caliber bullet. The police discovered bloody footprints in the store that had been made by Grant Hill Fila basketball shoes.

Dr. Michael Baden, a pathologist who is helping Flowers’ defense team in an effort to win another trial, believes that the murders were committed by more than one person. He suggests that the execution-style killing point to one person maintaining control of the victims while the other shot them.

Flowers’ Arrest

The police arrested Curtis Flowers seven months after the murders. The nature of the murders points to an experienced killer who was an adept shot with a handgun. Flowers had no criminal record.

Flowers’ uncle told the police that his .380 handgun had been stolen from his truck. A witness who saw someone near the truck identified Flowers from a photo array. She has stated at various times that the man was between five-foot-three and five-foot-six. An audio recording of the photo identification procedure reveals that a police officer falsely told the witness that she had earlier stated the man was five-foot-ten, which happens to be Flowers’ height. The witness went along with that suggestive comment and allowed it to influence her identification of Flowers.

Flowers has an IQ of 75. The psychologist who tested him questions whether he has the mental capacity to carry out execution-style murders. Police officers who questioned him claim he gave inconsistent answers to their questions, but aggressive questioning of a man with a low IQ often leads to confusing statements. However, Flowers has consistently denied knowledge of the murders.

A prosecution expert claims that the bloody footprints were made by a size 10.5 shoe, which conveniently coincides with Flowers’ shoe size. Defense experts say that the footprints could have been made by shoes ranging in size from 8.5 to 11.

Potential Suspects

Several armed robberies of stores occurred in neighboring Alabama in 1996. The robbers sometimes killed their victims. The murders at Tardy Furniture seem to follow that pattern. One of the Alabama robbers wore Grant Hill athletic shoes. The gang members used a .380 handgun that sometimes jammed. A jammed gun would account for the bullet found at the Mississippi crime scene.

One of the Alabama robbers places two of his accomplices in Mississippi during the time of the murders. He swears that one of the accomplices returned to Alabama with more money than he had when he left.

An early suspect, Willie James Hemphill, has a long criminal record. Hemphill lived near the furniture store and was wearing a pair of Grant Hill shoes. The police released him eleven days after his arrest. Flowers’ lawyers allege that the prosecution failed to turn over evidence of Hemphill’s arrest to Flowers’ defense attorneys.

And then there’s Flowers’ uncle, the man who claimed his gun was stolen. The uncle is a former employee of Tandy furniture who disappeared from work for 40 minutes at the same time the murders occurred.

Concealed Evidence

Five years after the murder, Jeffrey Armstrong found a .380 handgun in a crawlspace near the furniture store. Suspecting that the gun was used in the murders, Armstrong gave it to a police officer. When Flowers’ case finally went to trial, however, the gun was not introduced into evidence.

Armstrong asked another officer about the gun. The officer claimed that the gun was sent to the state crime lab, which ruled it out as the murder weapon. The state crime lab, however, never received the gun.

The police officer who took the gun from Armstrong now denies that he ever saw it. His partner, however, admits that they received the gun and that they turned it over to the district attorney’s office.

The gun was important evidence that didn’t fit into the prosecutor’s theory of Flowers’ guilt. Flowers’ lawyers have concluded that prosecutors deliberately concealed the evidence to make it easier to obtain a conviction. They reached the same conclusion regarding the prosecution’s decision to conceal the fact of Hemphill’s arrest.

Flowers’ Trials and Conviction

Prosecutors used a variety of shady tactics and unreliable evidence to convict Flowers. For example, prosecutors called a witness who testified she saw Flowers sprinting from the front of the store at the time of the murders. The witness’ sister now admits that she was in her house with the witness at the time of the murders and that the witness was not at the crime scene and could not have seen anyone running away from the store.

Prosecutors also relied on a jailhouse snitch. Criminals who testify with the expectation of lenient treatment are never reliable, but prosecutors use them to bolster weak cases. The snitch, who testified that Flowers confessed to the killings, has since recanted his testimony.

The district attorney dismisses the recantation because snitches are known to be liars. Yet the district attorney relied on the snitch to testify against Flowers. He claims the snitch told the truth when he testified for the prosecution and only lied when he admitted that his testimony was false. That kind of twisted logic is a common explanation for wrongful convictions.

Flowers’ Appeals

Flowers was taken to trial six times. His first three trials ended in convictions. Each one was overturned by the Mississippi Supreme Court. All three decisions were based on District Attorney Doug Evans’ misconduct, including his deliberate tactics to prevent blacks from serving on Flowers’ jury.

More than one black juror served in the next two trials. They both ended with hung juries. Evans got another conviction with the sixth trial. He allowed one black person to serve on the jury (to insulate himself from a charge that he was basing jury strikes on race, according to Flowers’ attorneys), while using his peremptory challenges to remove five other potential jurors who were black. A more conservative Mississippi Supreme Court affirmed the conviction, even after the U.S. Supreme Court directed it to reconsider its decision in light of Supreme Court precedent.

Evans’ single-minded focus on Flowers has shocked the legal community, as have his persistent efforts to deny Flowers a fair trial. In November 2018, the U.S. Supreme Court agreed to hear Flowers’ claim that Evans’ history of excluding blacks from juries, including the tactics he used to accomplish that result in Flowers’ most recent trial, violated Flowers’ constitutional right to equal protection of the laws.

Supreme Court Review

Supreme Court precedent does not require racially balanced juries. More than a third of Mississippi residents are black, but the fact that only one black juror sat in Flowers’ last trial does not violate the Constitution under current precedent.

Supreme Court precedent does, however, prohibit prosecutors from striking jurors because of their race. Unfortunately, prosecutors who want to strike minority jurors too often invent a neutral explanation for striking the juror, and judges too often defer to that explanation without exploring its legitimacy. “He had a speeding ticket once so I think he might favor the defense” is the kind of laughable explanation that judges routinely accept as an excuse to strike a black juror.

The question the Supreme Court agreed to decide is whether courts are free to dismiss as irrelevant a prosecutor’s history of making race-based strikes when assessing the credibility of his purportedly neutral explanation for removing potential jurors who are black. A broader question the Court should consider is whether courts should give heightened scrutiny to a prosecutor’s decision to strike persons of color from jury panels, particularly when prosecutors use most of their strikes to exclude potential jurors who are of the defendant’s race.