In the

Supreme Court of the United States

CURTIS GIOVANNI FLOWERS, PETITIONER

v.

STATE OF MISSISSIPPI, RESPONDENT

 

BRIEF FOR PETITIONER

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RELEVANT CONSTITUTIONAL PROVISIONS

This case involves the Fourteenth Amendment to the United States Constitution, which provides, in per­tinent part: "Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It also involves the Sixth Amendment to the United States Constitution, which provides, in pertinent part: "In all criminal prosecu­tions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury."

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STATEMENT OF THE CASE

Since October 1997, petitioner Curtis Flowers, a black man, has stood trial six times as the alleged lone perpetrator of the 1996 murders of four people inside the Tardy Furniture store in Winona, Mississippi. At the first two trials, the State peremptorily struck all ten black prospective jurors tendered for jury service; at the third and fourth trials, all 26 of the State's strikes were directed at black panelists; race infor­mation for strikes exercised at the fifth trial is not in the record; at the sixth trial, the State accepted the first black panelist, then struck the next five who came up for seats on the jury.

The first three trials each ended in convictions and death sentences later reversed by the Mississippi Su­preme Court. The fourth and fifth trials "both resulted in mistrials when the jury was unable to reach a unanimous verdict during the culpability phase." The sixth trial produced the judgment challenged here.

District Attorney Doug Evans was the lead prose­cutor at all six trials. He was also the reason the first three verdicts were reversed on appeal--the first two for willful, repeated misconduct during trial, and the third for intentionally "excluding African Americans from jury service." The record and prior court decisions reveal that throughout the proceedings Evans disregarded established rules of fundamental fairness and was firmly committed to seating as few black jurors as possible.

A.The First Five Trials.

1. The first trial and Flowers I.

Although all four victims had been killed at the same time and place, Evans indicted each homicide separately. He then insisted, over defense objection, on proceeding to trial only on the murder of store owner Bertha Tardy. After a venue change from Montgomery County-­where the case originated--to Lee County, the trial was held before Judge C.E. Morgan, III, in October 1997.

The jury selection process yielded 97 qualified in­dividuals: 75 (77%) were white, 22 (23%) were black. From that panel, 36 individuals were "ten­dered," i.e., brought forward to be either seated as a juror or peremptorily struck by a party. Five of those 36 were black; Evans struck them all. Flow­ers' counsel objected under Batson v. Kentucky, but the trial court declined to find a prima facie case of discrimination. The all­ white jury convicted Flowers and sentenced him to death.

Flowers' appellate counsel asserted a Batson claim as the first enumerated ground for reversal, but the Mississippi Supreme Court declined to reach it, focus­ing instead on other forms of Evans' misconduct. The first was his use of a "trial tactic or strategy ... to continuously bring in unnecessary evidence of the other three killings thereby trying Flowers for all four murders in the same proceeding." The court had explicitly "condemned" a similar tactic as exceeding the bounds of fairness, and found Evans' version in this case "far more egregious," and sufficient to re­quire reversal.

The Mississippi Supreme Court went on to find "numerous instances of prosecutorial misconduct". For example, Evans acted in bad faith when he repeatedly disre­garded Mississippi's prohibition against insinuating baseless grounds for impeachment. He also misled and confused the jury when he ''held up" an audio tape never admitted into evidence and misrepresented its contents--first on cross examination of Flowers and later in closing argument-as proof of "inconsistencies" in Flowers' statements to law enforcement. After agreeing with Flowers that the cumulative effect of all these errors warranted relief, the court reversed his conviction for the murder of Bertha Tardy and remanded the case for a new trial.

2. The second trial and Flowers II.

The second trial, for the murder of Derrick "BoBo" Stewart, took place before the Mississippi Supreme Court's decision in Flowers I, and thus before that court's pointed disapproval of Evans' four-for-one trial tactic.

After an unsuccessful attempt to select a "fair and impartial jury" in Montgomery County, venue was changed to Harrison County and the case proceeded to trial, again before Judge Morgan, in March 1999. Initial screening and removals for case-related "cause" left 49 qualified panelists: 38 (78%) were white and 11 (22%) were black. Of that group, 25 white and five black panelists were tendered for seats on the jury. Once again, Evans used peremptory strikes to remove each black panelist.

In response to a Batson objection, the trial judge found a prima facie case of discrimination and re­quired Evans to proffer his reasons for striking all five black panelists. After further arguments from the parties, the court focused on two of the strikes and found that, as to the first, one of Evans' two prof­fered reasons was pretextual, and as to the second, all three of his proffered reasons were pretexts for race discrimination. The court then allowed the first strike (on the theory that one of the proffered reasons was not pretextual), but disallowed the second after finding Evans had violated Batson. The result­ing jury, containing 11 white members and one black member seated by judicial mandate, convicted Flowers of the murder of Derrick Stewart and sen­tenced him to death.

The appeal in Flowers II was reminiscent of Flow­ers I. As in the first trial, Evans had made heavy use of evidence and argument concerning victims other than Mr. Stewart, and had added insult to injury by doing that which the trial judge had specifically instructed him not to do, namely, to introduce extensive evidence beyond the 'establishment of the crime scene.' Also similar to the first trial, Evans broke state law during cross examination and closing argument by insinuating without evidentiary basis that defense witnesses had improperly attempted to influence a prosecution witness.

In addition, the Mississippi Supreme Court found that Evans misrepresented witness testimony during closing argument. In one example detailed by the court, he modified by half an hour the time at which witness Sam Jones said he received a call that led to his discovery of the victims. When defense counsel objected, Evans doubled down, declaring, "Jones said he received a call around 9:30. I recall; I wrote it down.'' In fact, neither Evans' jury argument nor the contemporaneous notes he claimed to have made were consistent with Jones' testimony." After examining additional arguments and determining that the cumulative effect of the er­rors again required reversal, the Mississippi Supreme Court set aside Flowers' conviction for the murder of Derrick Stewart and remanded the case for another trial.

3. The third trial and Flowers III.

The third trial occurred in Montgomery County in February 2004, with Judge Morgan presiding again. Pursuant to the Mississippi Supreme Court's mandate, the indictments relating to each of the four decedents were consolidated and tried together.

Three hundred prospective jurors completed ques­tionnaires, of whom 126 (42%) self-identified as black and 161 (54%) self-identified as white. At least 120 potential jurors indicated that they were of African-American descent. In Montgomery County African-American citizens comprise forty-five percent of the county's population. While the record does not reflect the size of the panel that survived initial screen­ing and qualification, it does indicate that a total of 45 panelists-17 black and 28 white-were tendered.

Evans was allotted a total of 15 peremptory strikes: 12 for the main panel and three more for alter­nates. He used all 15 to remove black panelists. When defense counsel raised a Batson challenge, the trial court found a prima facie case, but later overruled the objection because "the State had not exercised its peremptory challenges in a racially discriminatory manner." The resulting jury consisted of 11 whites and one black person who was seated after the State ran out of per­emptory challenges. Flowers was again convicted and sentenced to death.

On appeal, the Mississippi Supreme Court charac­terized Evans' use of his peremptories as presenting "as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson chal­lenge." Individual analyses of the 11 panelists whose removal Flowers specifically chal­lenged on appeal led the court to conclude that two­-Vickie Curry and Connie Pittman-were struck in clear violation of Batson, and that the strikes of three more-Golden, Reed, and Alexander Robinson-were "suspect."

The Mississippi Supreme Court's analysis of the record revealed that the Curry and Pittman strikes shared a characteristic not found (or at least not as readily apparent) in any of the others: when required to justify each of the strikes, the only explanations Ev­ans gave were demonstrably false. To support the Curry strike, he claimed the juror "said she could not vote for the death penalty"; the state court, however, labeled that claim an outright fabrication. Similarly, Evans insisted that Pittman was struck for the sole reason that "she didn't believe Flowers did it," but the state court found nothing in the record to support that contention. As to those two strikes, the court went on to conclude that "the State engaged in racially discriminatory practices, and that the trial court committed reversible error in upholding the pro­spective jurors' removal.

If the confirmed falsehoods Evans gave to support the Curry and Pittman strikes exceeded the limits of the Mississippi Supreme Court's tolerance, the three other "suspect" strikes revealed that ample space re­mained within those limits. For example, while Evans' explanations for each applied at least as forcefully to one or more whites he accepted, each survived with the benefit of the Mississippi Supreme Court's great deference to the trial court. With respect to Golden, that deference led the court to assume the strike was justified by "physical mannerisms, vocal inflection, or demeanor", neither invoked by Evans nor otherwise noted in the record. As to Reed and Robinson, whose removals comparative juror analysis revealed to be "problematic," and "highly suspect," respectively, Evans' proffer of at least one separate, facially race-neutral reason was enough-regardless of plausibility or logical con­nection to the prospective juror's desirability, and in spite of lingering suspicions of pretext.  

4. The fourth and fifth trials.

Flowers' fourth trial took place before Judge Mor­gan in late 2007; like the third trial, this one was held in Montgomery County and involved all four indict­ments. It differed from the prior trials in that the prosecution elected not to seek the death penalty, and in that the juror qualification process yielded a relatively balanced pool of panel­ists-16 (44%) black and 20 (56%) white-tendered for seating or removal by the parties. Evans exer­cised a total of 11 peremptory strikes, every one of which was directed at a black panelist. Because of the makeup of the pool and the order in which panel­ists were tendered, however, the jury that heard the case was composed of seven whites and five blacks. The proceeding ended with a mistrial after the jurors were unable to reach a unanimous verdict.

Several months later, Judge Morgan transferred the case to Circuit Judge Joseph Loper, who would pre­side over the fifth trial (and later, the sixth). In advance of that proceeding, Flowers' defense counsel submitted a motion which detailed for the new judge, Evans' systematic removal of otherwise qualified black citizens from the four previous juries, as well as the prior judicial determinations that Evans had vio­lated Batson at the second and third trials. Based on that showing, defense counsel requested that Evans be barred from striking African Americans in the upcoming proceeding. The motion was denied from the bench.

The fifth trial was held in late September 2008. Like the fourth, this one ended in a mistrial after the jury announced its inability to agree on a verdict. The available record indicates that Evans used five peremptory strikes, but does not reflect the race(s) of those he removed. The jury that heard the case and hung was composed of nine whites and three blacks."

B. The Sixth Trial.

Flowers' sixth trial occurred in June 2010, again before Judge Loper, and again in Montgomery County. The original special venire consisted of 600 individ­uals; 55% self-identified as white, 42% self­-identified as black, and the remaining 3% did not self-identify. A total of 156 remained after initial qualification, of whom approx­imately 72% were white and 28% were black, After additional removals for cause, the first 26 in the remaining venire were reached for tendering, striking and seating on the main panel. Six of those 26 (23%) were black; Evans accepted the first one, Alexander Robinson, then struck the next five black panelists as each came up for considera­tion."

As in the second and third trials, the resulting jury was comprised of 11 white members and one black member. The process by which that composition was achieved reflected the factors highlighted by the Mis­sissippi Supreme Court as requiring-and not requir­ing-reversal in Flowers III.

1. Voir dire.

The strikes of jurors Reed and Robinson in Flow­ers III survived review because, for each, Evans had been able to point to some facially race-neutral fact or circumstance which, when combined with "great defer­ence" to the trial court, was enough to satisfy the Mis­sissippi Supreme Court. At the sixth trial, Evans' approach to the voir dire of black panelists facilitated development of facts or circumstances similarly useful for defeating a Batson challenge under the state su­preme court's deferential standard.

As the Mississippi Supreme Court majority later acknowledged on appeal, Evans asked "more questions of African-American jurors than of potential white ju­rors." Apart from Alex­ander Robinson, who was the first black panelist tendered, and the only one seated," Evans asked the other five tendered black panelists (all of whom he later struck) a total of 145 questions-an average of 29 each." By contrast, Evans asked the 11 whites seated on the panel a total of 12 questions, for an average of just under 1.1 questions per juror. Evans' selection of topics to probe and the depth with which he probed them also differed between struck blacks and seated whites. Although five seated white jurors acknowledged during group voir dire that they or a relative had been convicted of at least one criminal offense in Montgomery County or adjacent counties, Evans did not question three of them at all about those matters." and posed only three superficial questions each to the other two.

When the inquiry concerned facts or circum­stances about a black panelist likely to be seen as "race-neutral" by the Mississippi Supreme Court, how­ever, Evans was notably more engaged and aggressive. For example, in both group and individual voir dire of Tashia Cunningham, Evans posed multiple leading questions (including a reminder that she was "under oath," about whether Cunningham and Flow­ers' sister worked "close to" each other at the facility where both were employed. When Cun­ningham maintained that they did not, Evans sum­moned a witness, Crystal Carpenter, to take the stand and provide extrinsic evidence to contradict her. Although Carpenter pledged to obtain and deliver personnel records specifying "the particular lo­cation of every person" on the line, those doc­uments were never produced. Nonetheless, Evans later persuaded the trial judge to accept Cunningham's "situation about working so closely with Mr. Flowers' sister" as a race-neutral reason for her removal.

2. The Batson hearing.

After accepting the first black panelist tendered, Evans struck the remaining five. Carolyn Wright, Tashia Cunningham, Edith Burnside, Flancie Jones, and Dianne Copper. Pursu­ant to Mississippi procedure, defense counsel noted her concern after the first strike, and asserted that a prima facie case had materialized after the third strike. Judge Loper agreed, noting that five out of six strikes were African-American, and invited Evans to put on race-neutral reasons.

Evans proffered between two and four "reasons" for each black panelist he struck. As to each of the first four struck black panelists, however, at least one of his assertions materially misrepresented the facts. For example, to justify the strikes of Carolyn Wright and Edith Burnside, Evans noted that each had been "sued" by Tardy Furniture over credit accounts, and then added a further claim that each woman's wages had been "garnished" to satisfy their debts. The historical fact of each lawsuit was accurate, but, as the Mississippi Supreme Court later found, the gar­nishment claims were not.

Evans' other proffered justifications focused largely on the black panelists' knowledge of or acquaintance with defense witnesses or Flowers' relatives, asserting Wright "knows almost every defense witness" and "worked with Flowers' father"; claiming without record basis that Cunning­ham "is a close friend of" Flowers' sister; ar­guing that Flowers was ''very good friends with both of Burnside's sons"; inaccurately describing Flowers as Jones' "nephew"; and asserting that Copper "worked with two of the Defendant's family members".

Defense counsel offered rebuttals for each of Ev­ans' claims and reminded the court of the history of race discrimination in jury selection in this partic­ular case. She also requested consideration of the apparent racial disparities in Evans' investiga­tions and questioning of white and black panelists, and the plausibility of the stated bases for his strikes. For example, in response to Evans' introduction of an ab­stract of Tardy's civil judgment against Wright, coun­sel pointed to the differential level of investigation and noted that while Evans obviously felt it important enough to go get abstracts of judgment on this African­-American juror, he had made no similar inquiries into white jurors known to have had prior legal prob­lems. Similarly, counsel urged the judge to "go behind the facial neutrality" of a proffered reason and assess the plausibility of its relationship "to what is really a material issue in this case."

Judge Loper expressed little interest in these ar­guments. As to Evans' record of striking black panel­ists in the prior trials, the judge said nothing. He was equally unresponsive to counsel's requests for scrutiny of the plausibility of Evans' proffered reasons. And in response to counsel's concern over differential questioning and investigation of black and white panelists, he did not entertain the possibility that the differences could suggest discriminatory in­tent.

Having rejected the considerations urged by de­fense counsel, the judge followed the example set by the Mississippi Supreme Court's analysis of the three strikes in Flowers III. Con­sistent with that approach, the judge applied two cri­teria: whether one or more of Evans' proffered reasons was facially "race-neutral," and if so, whether defense counsel had failed to identify an identically situated white juror who had not been struck. Once both questions were answered in the affirmative for each of the black panelists Evans had struck, Judge Loper's analysis was done, and all five strikes were up­held.

The jury of 11 whites and one African American convicted Flowers and sentenced him to death.

C.  Flowers VI Before and After GVR.

On appeal to the Mississippi Supreme Court, Flowers contended that Evans had once again engaged in race discrimination during jury selection. In support of that claim, Flowers argued, inter alia, that dispari­ties in Evans' questioning and treatment of black and white panelists, and misrepresentations of the record proffered in defense of his strikes, showed that Evans' history of Batson violations had repeated itself.

Emphasizing the "great deference" accorded to the trial judge, and saying nothing about Evans' his­tory or the Mississippi Supreme Court's own decision in Flowers III, a majority rejected Flowers' Batson claim. With regard to both the numbers of questions posed to black and white panelists, and the nature of the questions asked and not asked, the ma­jority acknowledged some disparities in each category, but maintained that neither alone proved discrimi­nation.

The remainder of the majority's analysis consisted of a panelist-by-panelist assessment of each strike. As with the "suspect" strikes in Flowers III, the majority's touchstone remained whether Evans had proffered at least one facially race-neutral reason, not contradicted by the record, that did not also apply to an identically situated white juror;" and, where neces­sary, reasons not proffered by Evans were invoked to support his strikes. Three justices dissented.

Flowers petitioned for certiorari, contending that the Mississippi Supreme Court's failure to consider Evans' history of adjudicated purposeful discrimina­tion during its Batson analysis conflicted with settled law. This Court granted certiorari, vacated the state court's judgment, and remanded "for further consider­ation.

On remand, a majority of the Mississippi Supreme Court determined that no previous case law offered any pertinent les­sons on the relevance of a prosecutor's history to the assessment of a Batson claim. The majority further declared that "the historical evidence of past discrimination in this case does not alter our analysis," then reproduced, verba­tim, the merits discussion set forth in its pre-GVR opinion.

This Court granted certiorari.

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SUMMARY OF ARGUMENT

The prohibition against racial discrimination in jury selection serves multiple ends. It shields individ­ual defendants from discriminatory and arbitrary en­forcement of the law; it protects potential jurors' right to participate in the administration of justice, and to be treated with respect while doing so; and it prevents the undermining of public confidence in the criminal justice system. All of those values were diminished by the Mississippi Supreme Court's perfunctory treat­ment of the evidence of discrimination in this case.

The first four times Evans prosecuted Flowers, he struck every black panelist that he could, 36 in all. At two of those trials, Evans was found to have dis­criminated in his use of peremptory challenges. At the sixth trial, Evans accepted the first black panelist, then struck the remaining five, proffering facially neu­tral reasons for his strikes that the Mississippi Su­preme Court sanguinely accepted. Batson requires a "sensitive inquiry" into all of the indicia of discrimina­tory intent, and a cumulative assessment of the evi­dence uncovered by that inquiry. Nonetheless, the Mississippi Supreme Court ignored Evans' history in determining whether the race-neutral reasons Evans proffered were pretextual; deferentially reviewed each proffered reason; and never considered the totality of the evidence of racial motivation. After this Court va­cated the state court's decision and remanded for fur­ther consideration, the state court insisted that Evans' history was irrelevant, and ad­hered to its prior analysis. That decision, like the pre-­GVR decision, cannot be squared with Batson.

The Mississippi Supreme Court limited its inquiry to a very narrow question: Whether Evans stated a race-neutral reason for each of his strikes that was nei­ther directly contradicted by the record nor squarely applicable to a white juror he did not strike. This he had managed to do. But because some stated reasons are pretextual, Batson requires more. Evans had al­ready shown himself, at least twice in this same case, to be willing both to violate the Constitution and to try to conceal his racial motivation. Given that very prox­imate history of discrimination and dissembling, any court reviewing the evidence of discrimination was obliged to be skeptical of Evans' stated reasons.

Examination of the cumulative evidence of racial motivation in light of Evans' history compels the con­clusion that race, once more, was the determining fac­tor in both his questioning and his strikes. From the reversal in Flowers III, Evans should have learned the constitutional mandate of racial neutrality. Instead, he learned how to avoid what, in its limited review, the Mississippi Supreme Court regarded as the markers of racial motivation.

Rather than renouncing racial discrimination, Ev­ans took some pains to conceal it. Because Flowers III focused on the strength of the prima facie case made when he used all 15 of his strikes against black panel­ists, Evans created a slightly weaker prima facie case by accepting the first black panelist and striking one white panelist. Similarly, because the Mississippi Su­preme Court had accepted without scrutiny strikes Evans claimed were based upon acquaintance with Flowers' family, he focused his voir dire questions on such relationships. That effort, however, revealed its own disparities as Evans ignored the relationships suggested by the voir dire responses of white panelists but aggressively probed black panelists and, in one in­stance, summoned an outside witness to provide ex­trinsic evidence for relationship information capable of supporting a strike.

Flowers III also taught that while demonstrably false reasons for strikes might be rejected, their falsity would neither damage Evans' overall credibility, nor cast doubt on the sincerity of other stated reasons. That guidance, too, was reflected in the proceedings be­low; Evans offered at least four assertions of fact, one each for four different black panelists, that were de­void of record support, and the state court drew no ad­verse inferences from those misrepresentations.

Finally, Flowers III made plain that in the eyes of the state court, the implausibility of stated reasons would not impeach them. One would expect that a law­yer concerned about possible bias against his side would have pursued the most troubling suggestions of such bias and paid little or no attention to possibilities far less likely to produce antipathy, but Evans did the opposite. He made no effort to follow up when white panelists disclosed facts or circumstances suggestive of bias (e.g., their or their relatives' own criminal convic­tions by Evans' office or other prosecutors). But when he discovered that two black panelists had been sued over credit accounts by an heir of one of the four vic­tims, he worked hard, and again resorted to extrinsic evidence, to establish that the long-resolved, non-con­tentious lawsuits justified the panelists' removal.

The Mississippi Supreme Court majority rejected Flowers' Batson claim after ignoring many of these in­dicia of discrimination and failing to draw ready infer­ences about pretext and Evans' credibility from those it did recognize. Proper assessment of the totality of the record, however, dictates a different result. Evans' history of striking black panelists in the Flowers tri­als, including the most recent one, is lengthy and stark, and his conduct before the trial court below bears numerous hallmarks of a prosecutor still bent on seating as few black jurors as possible. Though his methods show signs of refinement after a half-dozen trials, the evidence, ''viewed cumulatively," is still "too powerful to conclude anything but discrimination."

CONCLUSION

For the foregoing reasons, petitioner Flowers respectfully requests that this Court reverse the decision of the Mississippi Supreme Court.