Fall 2019 Race Matters in the Courtroom 23 RACE MattERS IN THE COURTROOM: Discriminatory Peremptories in Flowers v. Mississippi Pragya Parthasarathy New York University I. Introduction In the American criminal justice system, both the prosecution and defense have the right to an impartial jury. The Equal Protection Clause of the Fourteenth Amendment protects the defendant’s right to a jury selection process free from racial or ethnic discrimination.1 The United States Supreme Court decision in Flowers v. Mississippi (2019) ultimately upheld the previous ruling in Batson v. Kentucky (1986), which affirmed that prosecutors may not use race as a factor in a peremptory challenge.2 In Batson, the Court granted relief to a black man sentenced to capital punishment, whose verdict was delivered by an all-white jury in the Deep South, and set forth the three-step Batson challenge to analyze whether the prosecutor is exercising peremptories on the basis of sex, race, ethnicity, or religion.3 The three steps are: “(1) the opponent of a peremptory strike must make a prima facie case of proscribed discrimination; (2) if established, the proponent tenders a race-neutral or sex-neutral explanation for the strike; and (3) once such an explanation is offered, the challenger must prove that this justification is pretextual.”4 Though the Court invoked stare decisis in the Flowers decision, defending pre-established criminal proceedings, this article will attempt to examine the controversial dissent of Justice Thomas, whose provocations regarding race in the courtroom were negatively received by the media. However, weaknesses notwithstanding, his dissent offers anomalous insight into Batson’s shortcomings and how racial discrimination still inheres within American life and the criminal justice system.5 II. Flowers v. Mississippi (2019) A. Facts of the Case Curtis Flowers had been tried six times; his trials were all prosecuted by the same white District Attorney. In 1996, four employees of a furniture store were killed during an armed robbery in Winona, Mississippi. Flowers was first tried for the murder of one of the employees, convicted, and sentenced to death. 1 U.S. CONST. amend. XIV, § 2. 2 “Flowers v. Mississippi.” Legal Information Institute, CORNELL LAW SCHOOL. https://www.law.cornell.edu/wex/quotation/%5Bfield_short_title-raw%5D_112. 3 Ibid. 4 Thomas Ward Frampton, “What Justice Thomas Gets Right About Batson”, STANFORD LAW RE- VIEW 72, 2019, 2. 5 Jeffrey Toobin, “Clarence Thomas’s Astonishing Opinion on a Racist Mississippi Prosecutor,” New Yorker (June 21, 2019), https://www.newyorker.com/news/daily-comment/clarence-thom- ass-astonishing-opinion-on-a-racist-mississippi-prosecutor. 24 The Undergraduate Law Review at New York University Vol III: Issue I However, the Mississippi Supreme Court reversed the decision and remanded the case, finding that there had been a violation of Flower’s right to due process due to “numerous instances of prosecutorial misconduct.”6 Flowers was then tried and convicted for the murder of the second victim, and the Mississippi Supreme Court reversed and remanded the case on the same findings. During his third trial, Flowers was convicted of all four murders by the jury and sentenced to death. The Mississippi Supreme Court again reversed and remanded the decision, citing racial discrimination during voir dire as prosecutorial misconduct. The first three trials had a solely white jury, though the population in Winona was 53 percent African American.7 In the fourth and fifth trials, three and five African Americans, respectively, sat on the jury, resulting in a mistrial with the jury being unable to come to a unanimous verdict.8 In the sixth trial in 2010, Flowers was convicted for all four murders, with one African American juror. In this trial, the prosecutor used his peremptory challenges to excuse five African American prospective jurors. However, Flowers appealed the conviction, on the grounds that the State violated his Sixth and Fourteenth Amendment rights during voir dire, during which the prosecution applied its peremptories in a racially discriminatory way. The Mississippi Supreme Court did not concur with Flowers and upheld the verdict, after which, Flowers petitioned to the United States Supreme Court, who immediately remanded the case to the Mississippi Supreme Court and instructed the Court to review the peremptories against the Batson challenge. The State found that the prosecutor was not racially biased in his peremptories. However, the State dismissed the circumstances of previous trials, which Flowers’ defense perceived as a clear pattern of racial discrimination and intent to remove African Americans from the jury: in the six combined trials, the State struck 41 of the 42 African- American jurors.9 Flowers subsequently re-petitioned the United States Supreme Court, who granted him certiorari in November 2018. The Court was to decide whether Mississippi’s omission of the prosecutor’s prior misconduct in Flowers’ previous trials was within the scope of the Batson challenge. B. Decision The Supreme Court ruled, in a 7-2 majority, that the trial court committed clear error in not finding substantial discriminatory intent from the prosecution. Under the Batson rules, the defendant must only make a prime facie case of discrimination, and the State must provide race-neutral reasons for its peremptory strikes. Subsequently, the trial court must decide whether the provided reasons truly motivated the peremptory strikes or if they were an ostensible pretext for racial discrimination. The Court found four critical facts: first, the alarming statistic of 41 of 42 prospective African American jurors being struck. Second, during the sixth trial specifically, the State struck five of six potential African American jurors. Third, in that same trial, the Court found that the State engaged in “dramatically disparate” 6 Flowers v. State, 773 So. 2d 309, 327 (2000). 7 Flowers v. Mississippi, 588 U.S. ___ (2019), at 3. 8 Frampton, supra note 4, at 3. 9 Flowers, supra note 7, at 2. Fall 2019 Race Matters in the Courtroom 25 questioning of African American and white prospective jurors.10 Fourth, the strike of one particular juror, Carolyn Wright, was based on racial discrimination; Wright was similarly situated to white prospective jurors who were not struck by the State.11 Additionally, the District Attorney asked potential African American jurors an average of 29 questions per person; for reference, he only asked the 11 white jurors eventually chosen an average of one question per person.12 III. Dissent of Justice Clarence Thomas on Flowers C. Analysis of Justice Thomas’ Opinion Justice Thomas found that the majority wrongly neglected the State’s race- neutral reasons as pretext for striking, rather than holding Flowers’ conviction due to the sufficient evidence which showed, in Justice Thomas’ opinion, guilt beyond a reasonable doubt.13 Justice Thomas cited that two of the prospective jurors in the sixth trial knew Flowers’ family and had been sued by Tardy Furniture, where the alleged murders took place.14 One of these jurors was related to Flowers, the other lied about working side-by-side with Flowers’ sister. Even with these assertions, Justice Thomas’ dissent is still sufficiently fallacious enough to justify the intense criticism it has received. Many of his statements are based on the faulty foundation that the majority was not acting in a good-faith effort to determine whether racial bias affected voir dire in Flowers’ case, but that the majority sided with Flowers to “boost its self-esteem,” hinting at the Court’s possible tactic of liberal adherence to lend itself a “racially enlightened” image.15 Among Justice Thomas’ claims was the dissembling, and uncited, statistic that “49 of the State’s 50 peremptory strikes in Flowers’ previous trials were race neutral.” However, the Mississippi Supreme Court’s previous ruling muddles this statement.16 Similarly, Justice Thomas suggested that Flowers’ defense counsel also exercised their peremptory strikes, “against 11 white jurors and 0 black jurors” in the sixth trial. Yet, this may have been asserted disingenuously, for Justice Thomas inquired about the defense’s racial disparity in their peremptory strikes. Justice Sotomayor responded that Mississippian defendants cannot use their strikes until the State first admits that juror, so, because the prosecution had only admitted one African American juror, the defense did not necessarily have the chance to exercise any peremptories against potential African American jurors. While Justice Thomas 10 Ibid. 11 Ibid. 12 The Editorial Board, “A Blow Against Racism in Jury Selection,” Opinion, New York Times, (June 21, 2019), https://www.nytimes.com/2019/06/21/opinion/curtis-flowers-supreme-court-mis- sissippi.html. 13 Flowers, supra note 7, at 38 (Thomas, J., dissenting). 14 Id. at 39. 15 Id. at 42. 16 Justice Thomas is likely including in his number of ‘race neutral’ strikes all of the 15 peremp- tories from Flowers’ third trial. In this trial (Flowers v. Mississippi, 947 So. 2d 910 [Miss. 2007]), the Presiding Justice who provided the plurality vote stated that the prosecution’s peremptory strikes were racially motivated but stated that the Batson violation on its own did not call for a new trial. 26 The Undergraduate Law Review at New York University Vol III: Issue I may have attempted to highlight a similarly discriminatory behavior by defense attorneys, Flowers did not show an anti-white pattern. Most notably, Justice Thomas contended that permitting racially motivated selection in voir dire will aid defendants like Flowers. He writes: “the Court continues to apply a line of cases that prevents, among other things, black defendants from striking potentially hostile white jurors.”17 From this, he suggests that Batson and its legal successors corrode the institution of the peremptory strike which is “essential to the fairness of trial by jury.”18 While this argument may carry some truth, providing unchecked power to the prosecution and defense would have a negative effect.