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Curtis Flowers was tried 6 times for the same crime. The Supreme Court just reversed his conviction.

The longtime death row inmate could still face an unprecedented seventh trial — at the hands of the prosecutor who racially discriminated against him.

In the Dark APM
Aja Romano writes about pop culture, media, and ethics. Before joining Vox in 2016, they were a staff reporter at the Daily Dot. A 2019 fellow of the National Critics Institute, they’re considered an authority on fandom, the internet, and the culture wars.

In a major decision, the Supreme Court has overturned the conviction of Curtis Flowers, the death row inmate whose case drew widespread attention through the acclaimed In the Dark podcast.

Flowers, a black man from Mississippi, is the only man in US history to stand trial six times for the same crime. Accused of the 1996 murders of four small-town furniture store employees, Flowers has been found guilty six times since 1997 — and each of the verdicts has been overturned.

Despite a lack of evidence connecting him to the murders, and a case that legal advocates have argued was “built on faulty eyewitnesses, improper forensics, and false confessions from untruthful informants,” Curtis was found guilty three times in succession after each subsequent guilty conviction was overturned on appeal by higher courts. Then two more trials ended in hung juries, with the jury divided along racial lines.

Flowers’s most recent retrial, in 2010, resulted in a verdict reached after only half an hour of juror deliberation. The jury, which contained only one black juror, voted in favor of the death penalty.

Prosecutor Doug Evans, who has tried all six of the cases, sought the death penalty in all but one of the retrials. Flowers was first sentenced to death for the murders in 1999, and he has remained on death row ever since.

At issue in his most recent appeal was the manner in which the prosecutor chose the members of the jury. Flowers’s defense team argued that Evans, who once delivered the keynote address at a meeting of white supremacist segregationists, racially discriminated against Flowers when he used his 11 peremptory challenges to strike down potential black jurors.

If the Supreme Court had sided with the prosecution, it would have meant the end of the judicial process for Flowers, and a permanent jail sentence. Instead, although the Court’s decision means Flowers could again face a new trial, it should also hopefully make it harder for prosecutors to use discriminatory practices during jury selection. And that means it could positively impact not only Flowers’s case but the racial makeup of juries around the country.

Flowers’s appeal revolves around a troubling, but commonplace, aspect of jury selection

After Flowers’s first two convictions (which were both appealed), higher courts found evidence of prosecutorial misconduct as well as racial discrimination during the juror selection process.

Flowers’s lawyers argued that Evans has a lengthy history of “adjudicated purposeful race discrimination” in selecting jurors for the cases he tries. Specifically, Evans has frequently relied on the peremptory challenge, which allows attorneys to ask for the removal of a limited number of jurors without needing to give a reason.

If you’re thinking that sounds like it opens the door for potential misuse and abuse, you’re right. The peremptory challenge has long been controversial because it may tacitly systematize racial discrimination; Supreme Court Justice Thurgood Marshall favored its complete abolition.

A 1986 Supreme Court case, Batson v. Kentucky, established that peremptory challenge cannot be used to discriminate against jurors based on race, ethnicity, or sex. The rule that peremptory challenges can’t be used to discriminate is well established in judicial procedure; in 2016, in a different case, the Supreme Court issued a nearly unanimous decision upholding the Batson precedent.

But court decisions don’t always guarantee fairness. In fact, in each of Flowers’s first four trials, Evans used all of his juror “strikes,” including his peremptory challenges, with the apparent intent to remove as many black jurors from the jury selection as he could.

Flowers’s appeal of his latest 2010 conviction rested on this aspect of the case, and his petition minced no words about how Evans used peremptory challenges to racially discriminate against him:

Through the first four trials, prosecutor Doug Evans relentlessly removed as many qualified African American jurors as he could. He struck all ten African Americans who came up for consideration during the first two trials, and he used all twenty-six of his allotted strikes against African Americans at the third and fourth trials.

During the jury selection at the sixth trial, not only did Evans use all of his available strikes to remove black potential jurors, but he also grilled them harder: The New York Times reported that Evans asked each potential black juror an average of 29 questions, in contrast to the potential white jurors, whom he asked only one question each.

Two previous courts found that Evans’s conduct violated Flowers’s right to equal protection under the 14th Amendment. In fact, in 2007, the Mississippi Supreme Court found that Evans’s behavior represented “as strong [a] case of racial discrimination as we have ever seen in the context of a Batson challenge.”

Flowers’s most recent appeal, which made its way to the US Supreme Court, argued that the Mississippi Supreme Court should have considered Evans’s established history of using peremptory challenges to violate Flowers’s rights when it upheld Flowers’s 2010 conviction. His defense pointed out that Batson explicitly orders courts to consider established patterns of discrimination by attorneys when they decide the merits of peremptory challenges.

The Supreme Court did just that. Recent Court appointee Brett Kavanaugh, who wrote about Batson as a Yale law student, wrote Friday’s decision and stated bluntly that the court in Flowers’s latest trial “committed clear error in concluding” that the prosecutor’s conduct wasn’t racially motivated. Regarding Evans’s previous conduct, the Court found that “the State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”

On behalf of Flowers’s defense team, Counsel of Record Sheri Lynn Johnson issued a press release noting that the SCOTUS decision “reaffirms the importance of racial fairness in the administration of criminal justice, both for the defendant and for the community. This is a victory for everyone.”

The Court’s finding in favor of Flowers expands on the previous rulings to strengthen the limits of the peremptory challenge. This should hopefully compel lower courts to take an attorney’s pattern and previous history of discrimination more seriously when deciding how the challenge should be used.

But even though the Supreme Court has overturned Flowers’s conviction, this doesn’t mean his legal struggles are over. Flowers — who had no criminal record at the time of his initial arrest — could now potentially face an unheard-of seventh trial.

In the Dark’s deep-dive reporting actually may have assisted Flowers’s defense

In the Dark is a gripping true crime podcast. For its second season, which aired in the summer of 2018, it took a close look at the Flowers case. That season was critically acclaimed for its microanalysis of the many racialized abuses of power that occurred throughout Flowers’s trials and retrials. The podcast’s team of journalists, who lived and worked in Mississippi for a year while reporting the case, deeply researched the question of whether, and how extensively, the prosecution had racially discriminated against Flowers when selecting jurors.

They found that not only had Evans and his staff discriminated against Flowers, but also that Evans’s office had a long history of racial discrimination against black jurors. In surveying more than 418 trials dating back to 1992, they found that Evans and his assistants removed black jurors from juries at a rate 4.5 times higher than white jurors. The podcast’s reporting was included in Flowers’s Supreme Court appeal as well as in an amicus brief filed on behalf of the defense.

Madeleine Baran, In the Dark’s host and lead investigator, told Vox in November 2018 that the podcast has helped shed light on a rarely examined aspect of criminal justice.

“Our reporting also called attention to how little we know about the race of people struck from juries in this country,” she said in an email. “This issue is critical to understanding how race and racism impact our criminal justice system, and yet, outside of a few limited studies, no one tracks it.”

In the Dark is notably dedicated to this sort of close investigative look at the justice system. Its first season, released in 2016, investigated the 1989 murder of Jacob Wetterling. While the podcast was still in production, Wetterling’s killer, long a primary suspect in the case, confessed to the crime, thereby transforming a series that might have been otherwise received as a murder mystery into a deeper look at the many factors that contributed to such long-delayed justice.

The series’ ensuing investigative focus has made it a standout among longform true crime series — and the fact that its longstanding cases continue to yield current developments has only aided in its success.

None of this means that the road ahead will be easy for Flowers, however. Johnson summed up the many issues raised about the prosecution’s handling of the case in her statement to the press:

The quadruple homicide in this case was a terrible crime, but Curtis Flowers did not commit it. While today’s decision is extremely important, it is also important to recognize that the conviction the Supreme Court has now overturned was a product, not only of racial discrimination in jury selection, but also of a wide array of other forms of prosecutorial misconduct, including: the use of grossly unreliable forensic evidence; the presentation of admittedly false jailhouse informant testimony procured through secret promises of leniency; the suppression of powerful evidence undercutting the claims of key prosecution witnesses; and the brazen misrepresentation of critical facts in the prosecutor’s arguments to the jury.

Should Evans decide to take Flowers to trial a seventh time, it’s likely that all of these elements will still be major obstacles for the defense to overcome. But this time, thanks to the advocacy of a popular true crime podcast, there’s hope that the judicial process will face far greater scrutiny and be held accountable for its past mistakes.

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