By the Daily Appeal
Last week, the Supreme Court surprised many liberals when it overturned the conviction of a Black man on death row, Curtis Flowers, for racial bias in jury selection. Justice Brett Kavanaugh wrote for the majority and, as if to tell liberals not to get too excited, he ended the opinion by saying that in reaching their decision, the justices “break no new legal ground. We simply enforce and reinforce [precedent] by applying it to the extraordinary facts of this case.”
The facts are indeed extraordinary. Flowers “has faced trial an astonishing six times for the 1996 murder of four people at a furniture store” in a small Mississippi town, wrote the New York Times editorial board. The question before the Court this time was whether District Attorney Doug Evans, who tried Flowers all six times, unconstitutionally excluded Black people from serving as jurors at the sixth trial in violation of a 1986 decision, Batson v. Kentucky, which held that prosecutors cannot dismiss prospective jurors on the basis of their race.
But it was about more than one prosecutor’s conduct in one particular trial. The Flowers case in fact urges the opposite conclusion.
At Flowers’s first trial, Evans struck all five qualified Black prospective jurors, Flowers was tried in front of an all-white jury, and the jury convicted Flowers and sentenced him to death. On appeal, the Mississippi Supreme Court reversed the conviction, concluding that Evans had committed “numerous instances of prosecutorial misconduct.” At the second trial, the prosecution again struck all prospective Black jurors. The trial court determined that the reason Evans gave for one of the strikes was a pretext for discrimination, and allowed the Black juror to serve. The jury, consisting of 11 white jurors and one Black juror, convicted Flowers and sentenced him to death. On appeal, the state Supreme Court again reversed, saying that the prosecutor had again engaged in misconduct.
“But Evans didn’t seem to learn his lesson,” wrote the New York Times editorial board. “He kept targeting his peremptory challenges at Black prospective jurors almost exclusively and with near-surgical finesse.” At Flowers’s third trial, Evans exercised 15 peremptory strikes, all against Black prospective jurors. The jury consisted of 11 white jurors and one black juror, who got onto the jury only because Evans ran out of peremptory strikes. The jury convicted Flowers and sentenced him to death. On appeal, the Mississippi Supreme Court yet again reversed, saying that the 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.” At the fourth trial, Evans used all of his strikes against Black people, but ran out of strikes, and five of the jurors were Black. At this trial and the fifth trial, the only two with more than one Black juror, the jury deadlocked along racial 
lines. At the sixth trial, Evans struck five of the six prospective Black jurors, leaving one on the jury. They convicted.
In all, Evans struck 41 of 42 Black potential jurors, including at least one in the sixth trial who was so similarly situated to prospective white jurors that Evans did not even question, let alone strike. At the sixth trial, Evans asked potential Black jurors an average of 29 questions each, but asked the 11 white jurors who were eventually seated an average of one question each. The majority opinion said that the “dramatically disparate questioning” of Black jurors to find a pretext to strike them “strongly suggests that the State was motivated in substantial part by a discriminatory intent.” And as the New York Times mentioned, “There is much more mischief in Flowers’s case that the Supreme Court didn’t examine,” including faulty forensic evidence and a star witness who has since recanted.
This is all troublesome, and most justices, too, were troubled. But over and over, they stressed how unique the case was. The majority opinion states, “we need not and do not decide that any one of [the] facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error.” Considering the broader context essentially narrows the decision.
Justice Samuel Alito’s concurrence puts it plainly: “As the Court takes pains to note, this is a highly unusual case. Indeed, it is likely one of a kind.” Alito and the majority also take pains to note that because of its uniqueness, the ruling will not apply to other cases. “Another prosecutor in another case in a larger jurisdiction” who gave any of Evans’s reasons for striking a juror would probably be successful, and Alito is fine with that outcome. “Were it not for the unique combinations of circumstances present here, I would have no trouble affirming” Flowers’s conviction, he wrote.
In his dissent, Justice Clarence Thomas wonders whether the Court heard the case “because [it] has received a fair amount of media attention.” The media, according to Justice Thomas, “can endanger the ability of a defendant to receive a fair trial” because it “often seeks to titillate rather than to educate and inform.”
Indeed, it’s undeniable that some of this writer’s interest in the case—and perhaps some readers’ interest—is motivated by familiarity with the painstakingly reported second season of the podcast series “In the Dark.” And the show itself admits that the dramatic facts led them to the case: “What got my attention about Curtis Flowers was the fact that Curtis had been tried not once, not twice, but six times for the same crime,” says reporter Madeleine Baran in the first episode. “Trying someone six times is incredibly unusual. It almost never happens. But it happened here.”
Baran may have selected the case because its facts are striking, but unlike the Court, “In the Dark” does not allege that those facts make it an outlier. The show quotes one local man saying what might be its thesis statement: “If you try a man and you go six times for the same crime, well something is wrong about the Constitution, or something is wrong about the law, or something is wrong about the prosecution, or something is wrong about the defense, or something is wrong about the entire system.”
The meticulously detailed reporting of “In the Dark” instead has expansive implications. The series paints a picture of a severely flawed case and a prosecutor so brazen that each time a higher court chastises him for misconduct, he goes back and repeats his behavior. Evans, who is in his seventh term as DA––and is running unopposed this year for an eighth––“has shown no inclination to give up,” and might very well try Flowers a seventh time, according to the Associated Press.
How many times has Doug Evans struck people from juries because they were Black? It seems extremely unlikely that Curtis Flowers was the only defendant whose case was tainted this way. It is far more likely that Evans’s attitude is rational. It’s based on his experience. No one––not Mississippi appellate courts, not the state’s bar association, not the U.S. Supreme Court, not his constituents, and not his family or friends––has forced him to obey the Constitution. And based on what we know about prosecutorial accountability, it is equally implausible that Evans is the only prosecutor who operates with this kind of brash impunity. Thomas is right that the media is under pressure to capture eyes and ears, but cases like these, if reported well, shed light on the system as a whole, and should be interpreted as such. The extraordinary nature of this case should not lead the justices to limit their decision: It should be cause to expand it.
