When prosecutors and defense attorneys choose jurors from a pool, they are allowed to reject some jurors, either for good cause or in what is called a “preemptory challenge.” Jurors can be removed for cause, for example, when they are unqualified to serve, have a conflict of interest, or admit that they cannot put aside their biases. Each side gets a limited number of preemptory challenges that can be used to strike jurors without a specific cause.
In the 1986 landmark case Batson v. Kentucky, the U.S. Supreme Court ruled that prosecutors may not use preemptory challenges to dismiss jurors based solely on their race. Doing so violates the Equal Protection Clause of the Fourteenth Amendment. While defendants have no constitutional right to a jury containing members of their own race, the court found that equal protection is denied when prosecutors intentionally exclude members of the defendant’s race from a jury. When a defendant alleges that a prosecutor has done so, it is called a “Batson challenge.”
The question of how well Batson challenges are handled is now before the Supreme Court. The case involves a death-row inmate named Curtis Flowers, who was convicted of killing his former boss and coworkers after being fired and denied his final paycheck.
Flowers was tried six separate times despite there being no physical or forensic evidence tying him to the crime. He was found guilty in the first three trials, but those convictions were overturned for prosecutorial misconduct. In the second and third trials, the prosecutorial misconduct was specifically the use of preemptory challenges to dismiss potential juror based on racial bias alone. The fourth and fifth trials ended in hung juries.
Additionally, American Public Media performed an analysis of the prosecutor’s overall record. Between 1992 and 2017, his office excluded fully half of all eligible African-American jurors, while dismissing only 11 percent of white jurors.
Flowers claims that the prosecutor impermissibly excluded African-American jurors in his sixth trial, as well. He argues that the Supreme Court should consider the prior findings of misconduct as evidence of misconduct in this case.
The Supreme Court agreed to hear only part of the question, however. In a prior appeal by Flowers, SCOTUS urged the Mississippi Supreme Court to reconsider whether the prosecutor’s race-neutral explanations for his preemptory challenges were credible. The Mississippi Supreme Court did so but reaffirmed the conviction. SCOTUS will now consider whether the Mississippi Supreme Court erred in that reaffirmation.
There is a good chance that Flowers is innocent. Three jailhouse informants used to convict Flowers have all recanted their statements, including one who walked back his testimony publicly in American Public Media’s In the Dark podcast.