Yes SCOTUS can put an end to this ,but they won’t. The court has codified racism in voting rights. Why would they object to racism in jury selection, or anything else for that matter? Let’s remember the end goal, a government by and for rich white folks.
3
Power given to the DA in the American Justice system is outrageously unfair.
The more so the DA is elected … thus politics enter the court room wether we want it or not.
Only in United States the prosecution position in th judicial system leads many DA's to a political career.
On paper separation of powers is enforced in this country, in reality the frontier between justice (that is, by definition, "fair justice") and politics is blurred, to say the least.
Then again the fact the DA has a huge leverage over the defendant to make him plead guilty makes the whole judicial system a mockery in too many cases…
A unique federal judicial system in all states would allow to a minimum of fairness in the judicial system in America. This is not the case today.
And this will only strengthen prejudice and unfairness against many defendants, black or white.
2
Do not expect the Court that so recently gutted the Voting Rights Act to protect black defendants from racism.
7
All states should adopt the federal system; have the judge select the jury.
1
@David J. Krupp
Because judges don't exhibit racial bias? Studies of inequities in sentencing suggest they do.
https://www.washingtonpost.com/news/wonk/wp/2017/11/16/black-men-sentenced-to-more-time-for-committing-the-exact-same-crime-as-a-white-person-study-finds/?utm_term=.726da60f9ad4
3
Jury selection is a farce. I was in jury selection for a murder trial one time; the defendant was a young African-American man.
During selection, several potential black jurors disqualified themselves by asserting that they didn't trust the police and wouldn't believe the police about anything. The lawyers went on to cut people whose family members who had been victims of crime, and people without children, resulting in a jury full of women with children. Most of the white men were cut.
The idea that the jury composition should be part of the bargaining between lawyers seems pretty far from the ideals of blind justice, or a jury of one's peers.
2
How do they let doug evans try him over and over again after demonstrating that he can't be trusted to not use racial bias in jury selection? Also, shouldn't evans be tried for something? There needs to be consequences for prosecutorial misconduct!
4
Can it seriously be maintained that the jurors in the O.J. Simpson trial were reasonable in doubting the evidence against him? It was a predominantly black jury.
There are also guilty convictions arrived at by all-white juries against black defendants that, plausibly, don't reasonably weigh the evidence.
So there is a good argument for peremptory challenges. They weed out people who are not going to weigh the evidence reasonably. Mr. Evans quite possibly rejects black jurors because he thinks that they are going to be like the jurors in the Simpson trial, who allowed themselves to be persuaded of a story about the police fabricating evidence, because they generally don't trust the police. As long as there are people who don't really pay attention to the evidence, there is a good reason why lawyers on both sides ought to be able to exercise peremptory challenges.
6
Nothing will change until prosecutors are held accountable for their misconduct.
6
The position of the GOP, led by Trump, seems to be open bigotry these days. So I wouldn’t hold my breath waiting for this Supreme Court, with its hard-right majority created by a seat stolen by Republicans, to move our country toward racial justice.
2
@David
In three months, when the SCOUTS reverses the Curtis decision, will you take back the absolute nonsense that you just wrote?
This is a chance for the Supreme Court to drive the last nail in the coffin of racial prejudice in jury selection. If the Justices follow precedent, they will.
2
Although clearly not racist, I am genuinely curious what we call an opinion that an individual of my race is always innocent despite any and all confounding evidence to the contrary.
4
I find it interesting to see that the NYT Editorial Board thinks white jurors who vote guilty are racist and prejudicial whereas black jurors who vote for acquittals are not.
Who shows bias here, and prejudice, I wonder.
10
@Kai
I'm not sure that's the argument that the EB is offering. I think they are forwarding the cause that "a jury of one's peers" includes people who share your racial identity.
We can debate the value of such a definition of "peers" in other nations, but in the United States it seems beyond settled that the history of severe disparities base racial bias calls for juries to be representative of the community at-large and to include racially-identified peers. It's unfortunate that our society still functions that way, but it does.
3
@Kai
The editorial says no such thing.
2
“Racism in Jury Selection Is Real. Can the Supreme Court Put an End to It?” Maybe when we eliminate all racism everywhere. Eliminating racism is a pureness and perfection of a perfect world. It will never happen due to the human inability for perfection.
1
Problem: there is 0 reason to believe that defendant did not receive a fair trial. There is 0 reason to believe that the jury which convicted him would have acted otherwise if more blacks served. Indeed, the very idea, that blacks and whites weigh evidence differently, is a profoundly problematic, almost certainly racist assumption. If it’s racist for a prosecutor to assume that blacks on a jury will vote to acquit (at least vis a vis a black defendant), is it not racist for this paper to make precisely the same assumption?
A “jury of one’s peers” does NOT require “diversity”; if any juror would permit considerations of race to influence her decision, she does not belong on the panel.
6
But, as Justice Brett Kavanaugh acknowledged on Wednesday, the court could once again uphold the principle that equality in the realm of jury selection is “not just for the fairness to the defendant and to the juror, but that the community has confidence in the fairness of the system.”
Brewski-boy, if community confidence in the fairness of the system was the issue, you wouldn't be sitting where you are today.
REALLY
4
@AWENSHOK
Just the opposite.
Not guilty until proven guilty.
Or is that no longer important to liberals......
2
That would be a worthy outcome — and may, at long last, give Mr. Flowers the fair trial he deserves.
___
It is impossible to find an unbiased juror; someone who doesn't form an opinion of innocence or guilt before the opening statements. Even thinking during voir dire "I have no clue" "but, if" enters the thought processes several times thereafter cannot be found.
As a rule, family members and individuals who know the alleged criminal cannot serve as jurors because of biases.
There is no doubt Mr. Flowers deserves a fair trial; just the same an all black jury doesn't mean he is innocent, either.
4
What is a "nearly all white" jury and why is its verdict suspect?
Presumably the verdict had to be unanimous. Are you saying that all of the white people were racist and unable to evaluate the evidence? What about the black members where were on the "nearly all white" jury? Why the assumption that black jurors will be more objective than white?
And why is it ok for the defendant to exclude only white jurors?
Policing discrimination is nearly (if not completely) impossible in this context. I think you should either eliminate peremptory challenges or allow them for any reason at all. But the middle ground - you an challenge a juror for any reason except race - leads to endless arguments about whether the proffered reasons were real or feigned. A waste of time, in my book.
6
The real travesty in this case is that with the history of prosecutorial misconduct in this case the governor of Mississippi allowed Mr. Flowers to be subjected to trial six times.
In Los Angeles, where I practice law, it is standard even in civil trials for lawyers to characterize potential jurors according to racial stereotypes.
Federal/Constitutional Law supersedes State law when prejudice is involved - at least until Trump destroys this too.
States and smaller jurisdictions cannot "stack" juries to favor a race/group/ideology. That is the essence of blind justice.
Any Judge or entity that does so should be censured/overruled by Federal law. Elected Judges (and there are many - we call them unsuccessful lawyers) must be held to the same rigid standards as duly vetted Federal Judges or our justice system will become even more of a joke than it already is.
A judge must be a judge - not a Republican or a Democratic Judge. If you don't believe that, have your trial in Tajikistan!
1
I defended a lot of felony cases and made a number of Batson challenges along the way. When a defense attorney makes a Batson challenge, the prosecutor is required to state a race-neutral reason for the strike of a black juror. Courts tend to approve almost any lame reason given by the state for the strike and appellate courts approve the decision of the trial court. In my experience, the Batson case was mostly a paper tiger in actual practice.
4
How ironic that Kavanaugh is concerned about the community's confidence in the system. If he were truly so concerned about that he would take his privileged self off of the Court.
8
@JNR2 Why? He was nominated by a president who had that authority and confirmed by the senate. What am I missing?
4
@JNR2 - What is ironic is the fact that people such as yourself, who consider yourselves "woke" and hate all things Trump, have no clue that Kavanaugh has actually written rather thoughtfully about manners in which to strengthen the Batson process. The other irony is that if you took all the "privileged selves" off the Court, you would end up with only two Justices: Thomas and Sotomayor - the only two who did not come from privileged backgrounds.
3
March 22, 2019
It seemingly is of import to consider a professional jury systems especially in capital litigation. Having an understanding for legal minds and with balance of mature sophisticated informed jurors, selected from a random pool of jurors would greatly be an option for primary or secondary re-trials. An idea that has been often been considered and with the very impact of this Editorial and with my several times of jury service - I am encouraging options for how best to serve justice and with one and only goal - truth by the best in court management inclusive of the jury endeavor towards a safe and best practices to legal practices systematic and worthy for living well in everyone's conscious.
3
Jurors represent a community, and communities make a nation of people who have memory, experiences, biases, and are rarely objective. So race is only one factor in the problem of jury selection. As long as we have peremptory challenges many of the verdicts will depend on skills of the attorneys. Yes, if we had to select randomly from a large panel of jurors, it would be more rational, and a lot more dependent on luck of the defendant. That wouldn't be fair to the victim.
No perfect way to solve the problem.
3
I agree with the Editorial but I believe much of the problem lies with the implementation of our jury system. I showed up for jury when I received y notice to do so. To my surprise, 80% of the other jury selection candidates were Caucasian, as I am but we live in a county that is only 50% Caucasian. Where were all the people of color? I believe they did not show up for one of two reasons: they have little or no confidence in the justice system, or they cannot afford to take time off from their part time jobs or independent jobs (such as gardeners, home care or house cleaning professionals) where they are not paid for time off, as employees in corporations are compensated. Or both. Having spent most of my career as a consultant or part time educator, I understand the financial burden of not showing up to work. Let's address both these issues so that the jury selection courthouse mirrors California: diverse and proud of it.
5
What we should do is not to abolish peremptory challenges but do away with jury selection. A jury should be randomly selected from the available juror pool, and the only cause for removal should be a close relationship with one of the parties in the case, as determined by the judge, not the attorneys.
Trials would be speeded up, racism on the part of either attorney would not be a factor, and since all citizens are equal in the eyes of the law, a defendant would be tried by "a jury of his peers".
4
The racism in this story is not really about the jury selection but is about The District Attorney trying and retrying Mr. Flowers. As a retired Criminal Defense attorney I am convinced that all those retrials are solely based on Mr. Flowers' race. I've seen over and over again where District attorney give up after one or two trial if the defendant is white but continually retrying the case if the defendant is not white. The corollary is that a District attorney will almost always advocate for a harsher sentence if the defendant is black.
6
Lawyers on both sides try to enlist jurors sympathetic to their case. This is strategy, not racism. These folks know that like it or not, racial bias exists among jurors, not only white jurors, but also black jurors. In a perfect world, race wouldn't matter, but as someone who has witnessed racial bias first hand as a juror, I believe that it does. I sat on a jury in the Bronx, deliberating a case of armed robbery by a young African-American man of a Latino brother and sister. There was factual evidence against the defendant, but the victims failed to identify their assailant as the defendant in court although they had done so previously on the night of the crime at the police station. The jury was comprised of eight middle-aged African-American women, three men of various backgrounds, and me. We hardly sat down to deliberate when all of the African-American women voted innocent; the men and I felt some weighing of facts was warranted. In the end, we had to acquit a clearly guilty man due to the fact that the victims were unable or unwilling to identify him in court. I will never forget, however, the bias that I had witnessed. Not unlike when I first heard the OJ Simpson verdict on the radio in a drugstore. All the black shoppers cheers, none of the white shoppers did. The racial bias goes much deeper than the court system. Unfortunately, it is an ancient part of the human psyche that hopefully our higher selves can overcome in carrying out justice as blindly as it should be.
8
@Shadi Mir: You may think that he was "clearly guilty" but what if you were in that situation and the eyewitnesses could not identify you at your trial? One of the the most important elements of a criminal trial is to prove that the defendant is the perpetrator. You assume that Mr. Flowers is guilty either because he is Black or 'because he was charged with the crime.
3
@Jeff
I assume nothing about Mr. Flowers. I don't know enough about the case. I am simply addressing racial bias that exists in most humans. The case I served as a juror on was complex and frankly may have been entangled with that specific neighborhood's social situations. Despite what we thought, we had no choice but to acquit and we did. Racially, I had no dog in that fight.
1
In Philadelphia the ultimate successful prosecution of all murders is well below 50 percent. This includes the murderers that are not even arrested and when charges are dropped as well as not guilty verdicts. Below 50 percent.
About 90 percent of the perpetrators and the victims are black. That means about 150 black peoples are being murdered each year in my city and no one is even being held responsible.
There is a history of racism, but black jurors are also just reluctant or flat out unwilling to convict people of their own race regardless of the evidence. They are also unwilling to give witness statements, sometimes out of fear, other times because they don’t care.
And as a result, more blacks are tragically gunned down while their killers enjoy legal impunity.
11
I’m not sure your point. This is widespread in Philadelphia and as a lawyer who has tried cases and observed trials, I have seen it. It’s so common place that it’s beyond anecdotal evidence.
The statistics I’ve presented are cogent facts, which you seem to ignore. Is evidence against murderers in Philadelphia mysteriously weaker than in the surrounding counties?
Are you saying that black jurors aren’t reluctant to convict black defendants?
1
The issue seems to be racism. And at one level it is in fact racism. Yet in this case the problem with it for Mr Flowers is not racism, it is Mr Evans. I don't know that the SCOTUS can do anything about the real problem here other than to call out Mr Evans in the ruling.
The problem with Mr Evans appears to be his racism and how he applies it. This will be the third time Mr Evans is called out for this sort of racism in this one case. Another problem for Mr Flowers here is that there is no law to hold Mr Evans to account for doing what he has done or to stop him filing a 7th case and doing as he has been doing once more.
It is pretty clear to me that Mr Evans knows he has no real case against Mr Flowers so he is intentionally sabotaging the cases just enough to keep Mr Flowers in prison and prevent him from getting a finite result he can use to contest on the merits of the case. So IMO "the problem" here is even more than Mr Evans racism. It is his desire, ability and willingness to subvert the very design of our justice system because he believes he knows better than any honest result that system would give in this case.
There is an old adage "Fool me once, shame on you, fool me twice shame on me."
Mr Evans has already been caught at this twice before in this one case. If you are to believe the Pod casters it looks like he has done this for his entire career. Which leads me to ask; What else has he done to subvert our system to exact what he thinks is justice?
1
I spent nearly 18 years covering the courts as a reporter for four newspapers, two states.
When I started covering the Ventura County Superior Courts around 2008, I wrote about was the jury system. Some lawyers complained about how prospective jurors being summoned for jury duty were mostly elderly, white people in a county that has a very large minority population. There were more than a dozen judges on the bench, predominately white men. Two or three minorities. The same stale argument is still being made: There weren't enough qualified minority lawyers to serve as judges.
When I left the newspaper in 2013, there were some improvements on the bench.
Here are 2016 facts in California, which prides itself in progressive politics.
Blacks: (6.6 percent in 2015 compared to 4.4 percent in 2006);
Hispanic: (9.9 percent in 2015 compared to 6.3 percent in 2006 according to the Judicial Branch of the California Courts report in 2016.
Hispanics comprise the majority of the population in "progressive" California.
This is criminal justice mindset is reflective of the governor's office who makes judicial appointments and the court administrators who implement policies such as jury duty.
Minorities, however, comprise the majority of defendants.
In 2013, one judge said "unfortunately," Hispanics and blacks commit the most crimes.
I invited him to stick his head into the traffic courts. The vast majority of people there on a daily basis are minorities — so we are bad drivers too?
1
A prosecutor eliminates black jurors to enhance his chances of getting a conviction. A defense attorney eliminates white jurors to enhance his chances of getting an acquittal. Experience in court rooms have shown both attorneys that these are effective trial strategies. Were you on trial, would you want your lawyer to employ such a strategy? Is it accurate for the Times to refer to these lawyers as racist?
6
@Brian Levene: Sorry, but in my 20 plus years as a criminal defense attorney, I've seen that "minority" jurors are much harsher when the defendant is of that minority. But then White jurors and also much harsher when the defendant is from a non-white minority.
Unfortunately the white men and white women in some cases, in America, are still full of racism. When they're confronted, they swear up and down that they're not racists and they point to reasons and excuses that on the surface seem legit. But once you dig down, they're all shallow and you begin to realize that even in 21st century white folks (in general - I'm a white person too) are still practicing racism to their heart's content.
The racists don't come out and say openly that they're racists. Rather you have to study the processes, what angle was covered and how it was covered, how the same situation was dealt with differently if the target is white person vs colored person.
Racism in America is alive, well, and kicking. We really have not become very civilized socially tho we have technically advanced.
1
@Saarah
One word, Saarah: OJ Simpson.
2
Racism in jury verdicts is the reason for peremptory challenges based on race. The glove that supposedly didn’t fit OJ Simpson contained the DNA of not only OJ, but also Nichole Simpson and Ronald Goldman said OJ’s lawyer Robert Kardashian to Barbara Walters. The black jury didn’t care. OJ’s white lawyer was replaced with a black lawyer, Johnny Cochrane defender of Michael Jackson. Cochrane gave the black jury what it wanted: a rhyme. “If it doesn’t fit, you must acquit”. It worked.
10
@ABC it was a "payback" verdict and unfortunately a murderer was set free. But racism (especially in the southern states) won't change for another 2 generations. Let's pray it doesn't take that long, but old (taught values) are hard to break.
I'd also like to say that common sense tells you there is a problem with our justice system when the Supreme Court is referring to a man's life like the latest Star Wars movie: "Flowers VI."
Personally, I can't wait for Flowers XI because that is when Doug Evans is really going to go for it and just exclude all the black jurors.
The American Public Media podcast In The Dark is FANTASTIC and probably helped bring this case to light. It is investigative journalism at its best. Kudos to Madeleine Baran and her team. And the bigoted and sloppy DA Doug Evans is currently running reelection in an uncontested race. So he's here to stay. The first season of In The Dark is also superb. https://www.newyorker.com/culture/podcast-dept/why-in-the-dark-may-be-the-best-podcast-of-the-year
Don’t count on the Republican-stacked racist court to rule in favor of the constitution.
OJ Simpson had 9 blacks, 2 whites, 1 Latino and got away with murder. 25 years later, most blacks still think OJ didn’t do it. Incredible? Does it matter that the evidence shows Flowers is guilty of killing 4 people? It didn’t matter, and doesn’t matter, to blacks that the evidence was overwhelming that OJ did it. Black lives matter. Nicole Simpson’s didn’t because she wasn’t black. Ronald Goldman’s didn’t because he wasn’t black.
10
So, if it's difficult to get laws rewritten to make black on white murder officially legal, the editorial board's work around would be to make sure all black defendants in murder cases get all black juries. Call it the OJ fix. Problem solved.
3
@me
It’s worked for white defendants for hundreds of years. That is, of course, when they bothered to bring them to trial at all.
It is real, and the Supreme Court should carefully monitor lawyers for black defendants who try to exclude whites from the jury.
5
The NYT Editorial Board attempts to sell jury racism as solely an exclusion of blacks from the jury. Nothing could be further from the truth. There was a murder of a Korean grocer in Baltimore where the black defendant was exonerated by an all black jury in the face of overwhelmingly valid evidence that he indeed was the murderer. The judge was outraged and let all know of the jury's travesty of justice. But, to no avail as the system prevents double jeopardy. The notion that judicial racism is solely associated with whites, Confederate flags, pick-up trucks, and blooming magnolias is simply a figment of the Board's overactive and biased imagination.
8
Just what public safety needs - more OJ juries...
1
If you watch the TV program "Bull" you will understand that lawyers want a jury that will allow them to win. Everything else is of secondary importance.
1
Thomas is an idiot. Flowers's lawyer didn't eliminate /all/ the white jurors -- that would be comparable to what the prosecutor did.
@Brian Harvey - Agree with him or not, Thomas is no idiot. His point was simply that prosecutors are called to account for their strikes of black potential jurors very frequently, while no one calls out defense attorneys for using virtually all their strikes on white jurors. The latter is hardly as offensive to the justice system, given the disproportionate number of whites in the jury pool to begin with. But it is not as though the defense attorneys are not also using race as a factor.
The headline asks the wrong question. There is no question that the Court *can* do much to curb racism in jury selection. The more important question is whether the Court will.
1
Once again the Supreme Court must decide whether it serves justice at the cost of conservative values or serves conservative values at the cost of justice. Any wagers on which way a conservative Supreme Court rules. Let’s hope they surprise us.
8
I fault the trial judge in this case(s). The judge is the arbiter of the law while the jury decides the facts. During jury selection the prosecutor and defense attorney take turns selecting jurors who are drawn from a random pool of prospects. This is done in open court where everyone observes the process. It should have been apparent to the judge that the prosecutor was trying to stack the jury and if defense counsel didn't object he or she should have admonished the prosecutor about his biased tactics. i hope Fllowers hasn't been sitting in jail all this time!
1
@Sufibeen. He has been sitting in jail. ANd it’s horrifying.
The jury selection process is fair and has served us well.
It’s not racist just because it didn’t serve up your desired outcome.
10
"With all-white or nearly all-white juries that Mr. Evans helped put together, each of Mr. Flowers’s first three trials resulted in guilty verdicts and death sentences."
Pray tell, is there a reason that your writer or writers deliberately chose an ambiguous phrase like "nearly all-white" to describe the racial composition of the juries? What exactly does that mean? Why not just provide the actual racial numbers of the jury to your readers, and let us decide for ourselves if they seem racially discriminatory? Is it because there were actually numerous blacks serving as jurors and providing the numbers damages you overriding claim that jury selection is inherently racist?
4
@mpound
there was one black juror on the "nearly all white panels"
2
A fair question for this Supreme Court is, would the conservative majority even want to eliminate racism in the selection of juries? North Carolina was determined to disenfranchise black citizens from their right to vote and embarked on a campaign to excise them from the state’s voter rolls “with surgical precision”. How about Mark Harris' fraudulent election win in North Carolina that the state's Board of Elections dismissed?
Mississippi prosecutor Doug Evans also used “surgical precision” to disqualify jurors based on their race. Evans is determined to have Curtis Flowers executed. Grilling prospective black jurors with an average of 29 questions compared to just one for prospective white jurors shows how biased and racist Evans is. He doesn’t want justice, he wants revenge.
Brett Kavanaugh warned at his Senate confirmation hearing that “what goes around comes around”, a not-so-veiled threat to Democrats, Clinton supporters, the liberal elites and Democratic-leaning voters, of which blacks are a large majority. Kavanaugh is now in a position to look the other way at racism in jury selection. After his stormy confirmation last year, would Kavanaugh even care about rampant racism in jury selection?
Republicans and evangelical “Christians” are so enamored with this president because of his commitment to ramming through right wing judges throughout the country. Would this Court be sensitive to jury selection and racial imbalance that might save Mr. Flowers’ life?
1
Clarence Thomas is a disgrace. Sure, he sits there with his silent brooding and only chimes in when he can point out the hypocrisy of the "white" lawyer. It's as if he cannot even see what the real issue is because he hates himself so much.
That aside, I'm offended by this whole process. I find it fascinating that this prosecutor just automatically assumes that a white person would agree with his presentation of the case. This is as baffling as assuming that a black person is just going to take the side of the black man! If this is the case - in Mississippi or South Carolina or California - then the whole system is irreparably broken! If we just assume that people of certain races or genders or ethnicity are going to vote one way in a jury then the whole system is unfair.
Not that I would ever assume that THIS court will ever fix it!
1
There is NO EQUAL JUSTICE in America. Since the “end of slavery” the justice system has been corruptly used as a tool towards incarcerating people of color for the purpose of disenfranchising them. Once convicted, they could no longer vote. Finding a job would be almost impossible unless it was menial (slave) labor. Housing would become an issue as people would be relegated to ghettos legally segregating whole populations. Higher education was deemed a pipe dream. Jim Crow is alive and well in America as this Mississippi prosecutor has so poignantly demonstrated.
Until the system in ALL states of the union, from the police to the prosecutors to the courts, are purged of this cancerous corruption, people of color, in spite of the “tokenism” at the Supreme Court, will suffer the wholesale violation of the US Constitution. Kavanaugh has one thing right: no one trusts or believes in white “justice”.
8
Just like they did when they ruled in 1954 in Brown vs Topeka Board of Education? That ruling put an end to racism in our educational system? The entire justice system stacked against those who have the least and people of colour. When has The Editorial Board of the Times seen the court keep its commitment to equal justice under the law? The Justices on the court normally serve the side of the aisle that brought them to the dance.
1
But what is the purpose of a peremptory challenge? It is to disallow a given juror for no reason. Just a "gut" feeling of one of the sides. I agree that that whole peremptory procedure should be abolished, but if not. why limit it to race? Can women be challenged base on their sex? Old people? Young people? College graduates? Where does it end?
Justice Thomas will go out of his way to see to it that black criminal defendant will not obtain justice in the SupremeCourt.
This is evident from his majority opinion in Connick v Thompson where it was shown that Mr. Thompson, a black New Orleanian, served over 20 years in Angola in Louisiana thanks to the prosecutorial misconduct of New Orleans district attorney Harry Connick.
Connick’s office was legion for either concealing or destroying exculpatory evidence as it did in Thompson’s case and a trial court awarded Thompson 7 figures in damages, which was affirmed by an appellate court only to be overturned by SCOTUS on the patently specious grounds with Thomas in the lead.
If Thomas has his way Mr. Flowers will spend the rest of his life in jail because of a racist prosecutor and racist Mississippi judicial system.
One thing's clear, the death penalty should be abolished since I don't believe we'll ever be able to fully eliminate racial prejudice to ensure fair trials and that whoever the state is condemning to death is actually guilty of the crime.
As an aside, how ironic that the ardent pro death penalty states in which this hanky-panky most occurs are inevitably equally ardently "pro-life". A heartbeat is a heartbeat which thou should not kill.
4
The issue here is about more than just juries. It's about a district attorney who refused to let go of a case he couldn't prove when he used a mixed race jury. The DA here appears to have a vendetta rather than any interest in justice being done. Had Mr. Flowers been a white man the DA would not have continued to waste taxpayer dollars. The state too might have put a stop to it. In just these ways our country tells people who are African American that their lives and rights are not worth protecting. Their rights can be overridden at will. They can be shot and killed for carrying out daily activities while being African American.
A sane system would provide excellent attorneys for all facing the death penalty. It would also limit the number of times a DA can try a suspect. Unfortunately we don't have a sane system in America. We have a punitive system that is not interested in rehabilitation, or making it possible for released convicts to have lives that no longer intersect with the criminal justice system.
1
Before placing blame solely on the prosecutor, you should know that in the six trials that were conducted virtually every white voted guilty and every black voted not guilty. That makes it hard for the prosecutor -- who believes Flowers is guilty -- to ignore race. Winona, MS appears to be a place where racism is pervasive and proper, racially mixed juries are going to result in endless hung juries. That is a tough place to do justice.
7
@michjas
Except the burden on the prosecution is to prove guilt beyond a reasonable doubt to every juror. If excluding black jurors is the only means by which a unanimous verdict of guilt can be achieved, there is clearly something amiss about this particular case.
Black jurors don't automatically vote to acquit. But they frequently have more skepticism about assertions made by law enforcement witnesses than do white jurors. If African-American jurors consistently are unconvinced of this defendant's guilt beyond a reasonable doubt, perhaps it is due to problems with the proof in the case.
That's why the Constitution doesn't allow knee-jerk exclusion of black jurors. A person should be judged by a reasonable reflection of the community, not just that portion of the community inclined to convict.
4
Unfortunately sometimes they do just vote to acquit. I notice your from Wisconsin, how many juries have you been involved with that has African Americans? Serious question.
1
I believe we should look to Heinlein's, "Stranger in a Strange Land" for guidance in how a system of justice can work.
Racism is real in jury selection--on both sides. Prosecutorial practices receive attention, deserved via appellate review, but do not think for a moment that racism in jury selection is limited to just one side of the table.
Seems like that prosecutor in this case needs to be prosecuted himself.
Why hasn't the Legislature or Congress fixed the law to deal with cases of racist prosecutors like this? This will be the third time in this one case he has been caught out.
And that doesn't even address the weak case he has been pushing for decades.
I've been on a couple juries and the racism thing works both ways. When you have someone, that no matter the evidence, is going to let someone go free, because he is the same race as the defendant, and hates cops and anyone in authority, there is a problem. Same with someone that is going to convict someone just because he doesn't like members of the race he belongs to. But, it's the system we have, and there aren't any alternatives.
3
Jury selection is a terrible system. Get the first twelve peers off the street randomly, anything else is biased.
And if some conflict of interest happens by this method, at least it would be rare and not actively engineered.
The Editorial Board may look forward with hopeful confidence in the John Roberts Court to return a verdict that will deliver justice to a black defendant who has been ensnared in the coils of Mississippi "justice" since 1996. I am not so sanguine in spite of Justice Brett Kavanaugh's seemingly searching inquiry and his noble (on paper) anxiety that the community also be vested in the outcome of the system.
Chief Justice John Roberts is on the record with an almost criminally-naïve view of race in the United States. In severing the sinews from the body of the 1965 Voting Rights Act, the Chief Justice declared that there was no further need for protections of minorities in the several Southern states that had historically disenfranchised black voters. Although that case (Shelby v. Holder, 2013) has no bearing upon the present case, one should be troubled by such a childishly indifferent view of race in America. Chief Justice Roberts presides over a Court in which the common, anonymous citizen, especially if not white, has little chance of redress for an obvious wrong done to him, in this case, Curtis Flowers.
And, one wonders, why would Justice Clarence Thomas take this opportunity to break his sphinx-like silence? Certainly he is on record as being antagonistic toward black and poor litigants. Why the superficial concern now?
This Court has a rare opportunity to give its stamp to justice for the common purpose re: jury selection, but, in the end, I doubt their courage.
Why invoke racism when simple statistics will do? The defense wants a non guilty verdict and the prosecution wants a guilty verdict. Blacks vote not guilty much more often and whites vote guilty more often. I am sure a juror is more likely to see themselves in either the victim or accused if they look like them.
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As a criminal defense attorney, I can assure that Baston challenges are rarely successful. Courts will usually defer to even the most nonsensical race-neutral explanations for striking a juror.
But Mr. Evans seems to have set the gold standard for blatant racial bias. And it looks like he has reached his third strike.
There's a simple solution for the flagrant disregard of constitutional standards demonstrated by Mr. Evans: remand the case for a new trial and order that a special prosecutor be appointed to litigate the case, thereby excluding Mr. Evans and his office from continually poisoning the legal process.
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@pczisny
I think he is being clever like a fox. He intends to keep Mr Flowers in prison and is using this method to do so.
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Roberts doesn't think there is racism in the country, so he lead the gutting of the Voting Rights Act. What makes you think Roberts thinks there is racism in the selection of the jury?
I hope he is learning!?
Justice Thomas's extraordinary eventual prise de parole is a travesty. Of course the defense team use every means at their disposal. The prosecution is merely fighting for the right to kill a man. Mr Flowers is fighting for his life.
In a wider sense, of course black people in general (and the defense acting as proxy for Mr Flowers in specific) discriminate against whites. This is one way we try to keep ourselves safe. That is not to say we all think all whites are evil in their hearts, just that some of us have certain probabilistic, contextualized expectations about how we're likely to be treated.
Against that background, leveraging a "reverse racism" argument in order to cast aspersions on a man's fight for his life is just about the most racist and despicable act I can imagine.
"But Justice Thomas’s line of inquiry misses that the real outrage of Mr. Flowers’s many trials, which the podcast “In the Dark” has chronicled in painstaking detail, is the clear racism that has visited the jury selection process from the start."
Sorry NY Times, but I will always support the opinions, beliefs, and arguments of US Supreme Court Justice over a podcast.
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I was called for jury duty twice in the last few years in two different counties in NJ. Both times I was dismissed as soon as the clerk read my name. Coincidence perhaps?
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For someone to be tried 6 times due to prosecutorial misconduct is manifest injustice.
Furthermore, the fact that the same prosecutor was allowed to try the case each of the 6 times shocks the conscience. The fact that this case has been convincingly reversed on the grounds of Batson before is HIGHLY RELEVANT to this second case.
I've seen the case against Curtis Flowers; yes, he probably did it. But you don't get to exclude black jurors because they find reasonable doubt more often. It just so happens that they tend to have a more cynical and realistic view on just how principled our American lawmen and DA's are.
Curtis Flowers has been imprisoned since 1996 and remains so due to the Mississippi Supreme Court giving him 6 bites at the apple despite racial misconduct being the basis for several of the retrials. If Mr. Flowers is indeed guilty, I empathize with the 4 victims. But the state of Mississippi must learn its lesson. You shouldn't be able to racially exclude jurors 2 times in a row (with the both offenses being so blatant) and still have another opportunity for retrial. The SC will overturn Mr. Flower's conviction on grounds of Batson. What is to stop Mississippi from organizing another all-white tribunal? Clearly there's no consequence other than taxpayer money.
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A constitutional “imperative to purge racial prejudice from the administration of justice” is surely aspirational and commendable.
The Supreme Court can decide the cases it hears. But the Supreme Court cannot purge racial prejudice from the hearts and minds of prosecutors, judges and juries. The Supreme Court is not composed of nine exorcists.
The Supreme Court can overturn convictions tainted by racial prejudice and it should do so at every opportunity. The Justice Department should follow up on cases like the Flowers case and take actions against the judges and prosecutors who can be removed from office or disbarred.
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I'd say it's a deeper problem, that of allowing the prosecution and defense to try and tailor the jury to be biased one way or the other in the first place. On this side of the pond the judge will ask if anyone knows people involved, has seen media reports and formed a view etc, then that's about it. Jury consultants not required.
Rather than close off one avenue to trying to deliberately select a biased jury, simply close them all. Peremptory challenges are a flawed concept.
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Some of us might like to think of our society as being color blind, but my observation is that we are not there yet. The Constitution mandates an "impartial jury", usually paraphrased as a "jury of one's peers". Since our society is not color blind does a "jury of one's peers" require that white defendants be tried by juries consisting solely of white jurors, and black defendants tried by juries consisting solely of black jurors ? If there were just black and white people, I think such an arrangement might have merit, however the compendium U.S. citizens possess an entire spectrum of racial characteristics; so such "fairness" would be impossible to administer. Maybe we should just eliminate the peremptory challenges, letting defendants take their chances with random selection. After all, are trial lawyers not immune from gaming the jury selection system ?
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The way our judicial system handles the issue is absurd- requiring Defendants to appeal and sending cases back for retrial. That process is inefficient and ridiculously expensive. I suggest that courts adopt a policy mandating that a jury reflect the racial composition of the county or other area in which a case is tried. If all peremptory challenges have been exhausted, jurors from the lopsided race are removed, by lottery, and the process continues until a jury having some semblance of racial conformity is achieved.
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@Disillusioned
Jury duty is not a mandatory obligation on citizens. It is an obligation on registered voters, which is how the jury pools are made up in every county.
Numerically it is quite possible that the pool has few minorities in any random case selection process. This makes your suggestion all but impossible in those situations. Your suggest would also set up a quota system as opposed to a voir dire process as being the primary qualification in any jury selection, and that is unconstitutional.
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The Editorial Board needs to engage this topic with a little more honesty.
Educated readers cannot comment effectively on the disposition of Curtis Flowers’s case without being presented with more details.
Mr. Flowers’s multiple trials are evidently a result of the district attorney’s preemptory challenges to eliminate black jurors during jury selection.
Historically, the United States is underwritten by racist legislation and a jury system in which all-white juries refused to convict white defendants accused of crimes against members of racialized subcultures. Prosecutorial and police misconduct are commonplace.
However, the assumption that the presence of black jurors in trials of black defendants promotes “equal justice” is highly suspect.
The obvious example is the O.J. Simpson case, in which the defendant was found innocent despite a preponderance of evidence proving his guilt. Later, in the aftermath of Simpson’s attempt to recover some of his memorabilia, he was punitively sentenced for a relatively mild offense. Two wrongs do not make a right.
Doug Evans understood that black jurors would not convict Flowers. He finessed his preemptory challenges to remove this possibility—but apparently not well enough.
Under extant law, the Supreme Court perforce must reverse the ultimate conviction. In so doing, they are probably letting go a guilty defendant.
Who speaks for the four victims?
This is not equal justice.
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@MS Guilty or not, Doug Evans could not have been unaware of the fact that Mr. Flowers would most certainly find reprieve from the higher courts. He knew this because it happened before, and it was absolutely blatant. This second time is no different.
Now, again I know Curtis Flowers probably did it. But probably and beyond a reasonable doubt are different things. Black citizens in Mississippi have quite a different experience with the principles of the justice system and its actors. You don't get to discount that experience because you think that it's unreasonable.
Mr. Flowers was entitled to a jury of his peers selected without racial bias. He has been intentionally deprived of a fair trial MULTIPLE TIMES by the same prosecutor. I don't care if he was found at the scene actively murdering people; that is manifest injustice.
But, of course, in 2021 we'll be reading about Flowers's case before the SC again on the exact same grounds. What is his recourse for a fair trial? I empathize with the victims, but emotions have no place in the Supreme Court.
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@MS There is another case going to trial a second time now in Queens. Google Karina Vetrano. In this case, the defendant 1. confessed to the rape and murder of Karina Vetrana and 2. his DNA was found on her body. But the first trial ended in a hung jury, because black jurors refused to convict, even with his confession and the DNA evidence. OJ syndrome.
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@MS Please google Katrina Vetrano, to learn about a murder trial now in process in the NY area. (Of course, NYT has never covered this trial, because it doesn't fit their narrative.) This is the second trial in this case, because the first ended in a hung jury. The defended, a black man, actually CONFESSED to raping and murdering Ms. Vetrano, and his DNA was found on her body, but the black jurors refused to admit his guilt, even in this overwhelming evidence, which included his confession. OJ syndrome.
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Mr Evans is one of the poster boys for a racist justice system.
That said, the jury selection process, the requirement for a unanimous decision and the length of time the lawyers have to prepare a case all diminish justice in our country.
Lawyers should not have any say in the selection of a jury. A jury should be selected randomly by a computer search of the voter roles and the persons identified should be compelled to serve on the jury. The jury should be selected from the local population at large. Exceptions should be very few and tightly defined.
Jury decisions should be something like a 10-2 vote, not unanimous. The preponderance of evidence should prevail and a single hold-out should not be able to obstruct a decision. 12 Angry Men was a movie, not real life.
A speedy trial should be a speedy trial. Lawyers on both sides should be required to assemble their cases in no more than 90 days. The tactics of lawyers to postpone trial dates are well known in the NYC system and probably no different than anywhere else. Exceptions should be narrow, well defined.
Finally, lawyers who abuse the judicial system should be penalized, leading to disbarment. Yes, I know such rules for certain situations exist. However, lawyers, like doctors, are largely a self-policing industry wherein people go along to get along.
Our system of justice is gamed by prosecutors and defendants on a daily basis. One racist prosecutor is not the issue. The system is the issue.
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@TDurk Not to open a can of worms here, but our Constitution was written to make it difficult to convict. Several of your points are unconstitutional in a way that reverses that mandate.
Not to say that as a society we haven't enacted certain rules to do just that, but I'm not sure that arguing for further reversals is the way forward.
@Kate
Yes, our Constitution does offer significant individual rights to protect individuals throughout the judicial process. Article 3, augmented by Amendments IV, V, VI, VII and VIII I think are the sections which address those rights. None of those articles or amendments even mentions (a) lawyers' privilege to dismiss potential jurors, (b) the vote of the jury necessary for conviction, or (c) what constitutes a speedy trial. So one of us is missing something; might be me. But the language of the pertinent documents seems clear enough.
@TDurk
Your proposed system appears to be designed to insure that all defendants get convicted, guilty or not. As to their being a self-policing industry, state bars tell lawyers exactly what they can and can't do and yanks their bar card if they fail to comply.
It's worth noting that the defense didn't even have much of a chance to exclude white jurors even if they specifically wanted to. The editorial probably isn't long enough to cover such details.
In Mississippi, the prosecution gets to exclude who they want first and have fifteen strikes. Then the defense gets to examine the jurors. Most of the jurors excluded by the defense were indeed white but that was because by the time the prosecution was done, there was only one black juror who made it through.
If you're interested in the case, the In The Dark Podcast is pretty good.
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I can't imagine this court finding a constitutional problem with racism in jury selection. As the court said in McCleskey v. Kemp, racism is so endemic in our criminal justice system that it is impossible to get rid of it. The justices in the majority had, as Scalia noted, all the the proof of discrimination they needed, but they understood that if they ruled in favor of McCleskey, we would basically be opening up our entire criminal justice system to challenges based on racism. That's because the entire criminal justice system is racist, and that's not really debatable once you start examining it (and the majority members of the court agreed).
So I don't see why they would rule as the Editorial Board hopes, but one can hope. I certainly do.
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@21st Century White Guy 100%. After McClesky v Kemp, how can any black individual have faith that American justice is blind? So, instead of dealing with the consequences of that decision, some courts have just decided that blacks are now too skeptical to be selected as jurors.
Maybe if black jurors started acquitting every black defendant in Mississippi, we would see some changes. But it turns out that blacks, like whites, are people who don't like criminals roaming free on the streets. Who'd have figured?
I don't see any justification for trying Mr. Flowers so many times. The idea that one reversed conviction may merit a new trial sounds reasonable and appropriate, but when prosecutorial mistakes result in multiple trials, multiple retrials themselves are a gross miscarriage of justice.
The Mississippi Supreme Court seems to have overlooked the Constitution's prohibition on double jeopardy, not to mention triple, quadruple, quintuple. . .
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@Sequel
hung juries and mistrials do not trigger double jeopardy.
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@Sequel
Multiple juries convicted the man of 4 murders. I think it more likely that the miscarriage of justice would be his release.
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What right does this prosecutor have to be permitted to continue appearing before the successive courts? Why has he not been charged with contempt or something he might understand better than a slap on the wrist by each successive judge in each successive court?
Nothing is apparent to me possibly since I have not reviewed the podcasts and other articles pertaining to these controversial and seemingly discriminatory, criminally discriminatory actions by the prosecution. That there is an unspoken dialogue between the lines the court reporter may have recorded is not necessarily too hypothetical to consider.
Not much is secure about what these justices may do or say, least of all for any of the men, but to expect them to be consistent is too much to expect. Someplace in the criminal justice system there is something approaching the desire for justice else Mr. Flowers would have been caused to bear these previous 5 attempts to deprive him.
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There aren't too many things in life of which one can be certain, but one of them is that as long as Donald Trump is president and Senate Republicans have any say in appointing a nominee to the Supreme Court bench -- the problem of jury selection long color lines will reign supreme.
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@N. Smith Read the article. It appears that Kavanaugh will vote to reverse the conviction (as will Alito)
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@michjas People forget that in spite of the ideological split of the Court, most decisions are between 7-2 and 9-0, in whichever direction.
Plus I get sick of reading Trump's name in every comment section. He's not that big or that important. It's like trying to avoid Kardashian news on Buzzfeed. Just let me read the story and interesting comments in peace.
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Instead of trying to get rid of racism in jury selection, perhaps get rid of the jury system and let the professionals, i.e. judges, judge and not just referee.
Does that mean that there are no racist judges? Of course there are, but it might hopefully be easier to control or better to prevent that.
When one is ill, one does not go to one's peers, but rather to a professional. The same is true for most issues people face. Even in law, cases are usually argued by professionals, so why have the decision in the hands of amateurs.
Judges have to write and explain and justify their decisions. Juries do not.
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@Joshua Schwartz So the judges aren't Racist also? Look at the prison population before you answer that question.
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