On March 20, the U.S. Supreme Court is set to hear a particularly consequential death penalty case in which a Mississippi district attorney unconstitutionally removed African-American citizens from the jury pool. The prosecution did this repeatedly while trying an African-American man, Curtis Flowers, six times for the same crime. Flowers v. Mississippi, known to the public through the popular “In the Dark” podcast, is highly significant because it presents the opportunity for the U.S. Supreme Court to vindicate the long-recognized constitutional requirement that juries must be chosen without racial bias and reaffirm the nation’s commitment to impartial justice.
Fair jury selection resulting in a representative jury of a defendant’s peers lies at the foundation of the criminal justice system. It seems clear that did not happen in Flowers’ case, which is why, together with five other former law enforcement officials in the U.S. Department of Justice, I joined in submitting a brief supporting the enforcement of race-neutral jury selection in his case.
For more than 140 years, the U.S. Supreme Court has repeatedly reaffirmed the bedrock principle that racial discrimination in jury selection is unconstitutional, recognizing that it undermines the very protections the jury system is intended to provide. Juries of our peers safeguard the right to a fair trial because they are representative of the defendant’s community. That safeguard fails when race is used to exclude qualified people from serving. There is an independent reason to prevent and correct racial bias in the criminal justice system: in the long run, public safety depends on it.
Public trust in the justice system requires public confidence that justice is administered fairly; that all citizens are governed by laws, not by individuals; and that all members of society get a fair shake, free from invidious discrimination. Perception of unequal treatment, particularly of criminal defendants, undermines the public trust. It’s that very trust that makes effective law enforcement possible. The vital work of law enforcement professionals, from police to prosecutors and policymakers, depends on public cooperation with, and public faith in, law enforcement and our system of justice.
It is therefore critical that those administering the criminal justice system uphold the promise of equal justice and that they be perceived as doing so. This is a pressing issue. More than half of all Americans and 68 percent of African-Americans report they do not believe the criminal justice system treats all individuals equally.
Flowers’ case presents an important opportunity to show the public that equal protection under the law is meaningful, and to reinforce the U.S. Supreme Court’s 1986 Batson v. Kentucky ruling prohibiting the use of a prosecutor’s peremptory strikes to eliminate potential jurors based on their race. In Flowers’ extraordinary case, the Mississippi Supreme Court has already overturned three verdicts for prosecutorial misconduct, twice for Batson violations. Yet, in Flowers’ sixth trial and sentencing, which sent him to death row, the state supreme court refused to correct the undeniable pattern of racially motivated juror strikes.
In Flowers’ first two trials, the district attorney attempted to strike every African-American juror. One was seated, only because the trial judge conceded that particular strike was racially motivated and reversed it. In the third trial, the prosecutor used all 15 peremptory strikes against African-American jury panelists.
In the sixth trial, the same prosecutor struck five African-Americans. One African-American man was seated on the jury with 11 white members. In its Batson ruling, and in other decisions about this issue, the U.S. Supreme Court has repeatedly affirmed that a prosecutor’s historical practice must be considered when assessing whether racial discrimination occurred in jury seating. Yet in Flowers’ case, over the course of the five trials for which data is available, the district attorney struck 41 of 43 potential jurors who were African-American. In evaluating the sixth trial, the Mississippi Supreme Court turned a blind eye to this extraordinary case history of racial discrimination.
The U.S. Supreme Court should correct this error. As our brief notes, it is worth remembering that the Mississippi man who murdered Medgar Evans was convicted by a racially diverse jury 30 years after two all-white juries acquitted him. The case is widely recognized as an example of how a jury composed without racial discrimination can improve confidence in the justice system. Flowers currently sits on Mississippi’s death row despite the evidence that the jury who sent him there was chosen in violation of our most basic constitutional principles. The U.S. Supreme Court must reaffirm those principles and ensure Flowers a new day in court before a fair and impartial jury of his peers.
David W. Ogden is chair of the government and regulatory litigation practice group at WilmerHale. He served as the deputy attorney general of the United States from 2009 to 2010, assistant attorney general for the Civil Division, U.S. Department of Justice, from 1999 to 2001, chief of staff to Attorney General Janet Reno, counselor to the attorney general, associate deputy attorney general, and deputy general counsel of the Department of Defense.