Kavanaugh Writes Good Opinion that Overturned Racially Biased Prosecutor

Kavanaugh Writes Good Opinion that Overturned Racially Biased Prosecutor June 24, 2019

Other than the dissent, the ruling in Flowers v Mississippi is quite surprising. I’ll put the facts from the ruling below, but it found that a prosecutor had used racially biased challenges to jurors in order to stack the jury pool against a black defendant. Three of the conservatives on the court, and even Alito, agreed with the liberals on the court and Brett Kavanaugh wrote the majority opinion, which was 7-2.

The ruling lays out the facts of the case:

Petitioner Curtis Flowers has been tried six separate times for the murder of four employees of a Mississippi furniture store. Flowers is black; three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified black prospective jurors. In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against black prospective jurors, and the jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court reversed again, this time concluding that the State exercised its peremptory strikes on the basis of race in violation of Batson v. Kentucky, 476 U. S. 79. Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the State exercised 11 peremptory strikes—all against black prospective jurors. No available racial information exists about the prospective jurors in the fifth trial. At the sixth trial, the State exercised six peremptory strikes—five against black prospective jurors, allowing one black juror to be seated. Flowers again raised a Batson claim, but the trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes. The jury convicted Flowers and sentenced him to death.

Batson is a case that says that if the defendant makes a prima facie case that they have been discriminated against, the burden is then on the prosecutor to show that it had race-neutral reasons for their actions. The substance of the ruling:

(1) A review of the history of the State’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that the State’s use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent. The State tried to strike all 36 black prospective jurors over the course of the first four trials. And the state courts themselves concluded that the State had violated Batson on two separate occasions. 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…

Here, the State spent far more time questioning the black prospective jurors than the accepted white jurors—145 questions asked of 5 black prospective jurors and 12 questions asked of 11 white seated jurors. The record refutes the State’s explanation that it questioned black and white prospective jurors differently only because of differences in the jurors’ characteristics. Along with the historical evidence from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggest that the State was motivated in substantial part by a discriminatory intent.

At issue here is what are called peremptory challenges, which allow a attorneys for both sides to dismiss any prospective juror without having to explain to the judge why they are unacceptable to them. Each side gets a certain number of them. The fact that the prosecutor used nearly all of their peremptory challenges on black candidates is so blatant that even most of the conservatives on the court couldn’t deny the clear racial bias. But as Kavanaugh writes, “blanket discretion to peremptorily strike prospective jurors for any reason can clash with the dictates of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

So, the equally unsurprising dissent, written by Justice Thomas and joined by Justice Gorsuch (except for one part of it). I’ll let Amy Howe explain his appalling argument:

Justice Clarence Thomas dissented, in an opinion that was joined in part by Justice Neil Gorsuch. Thomas argued that the Supreme Court should never have agreed to review Flowers’ case in the first place. He alleged that the case didn’t meet the justices’ traditional criteria for granting review, and he seemed to suggest that the justices might have taken up the case because it hailed from the south – which, quoting an opinion from Justice Antonin Scalia, he described as a “familiar object[] of the Court’s scorn” – or because of the media attention that the case had garnered. But in any event, Thomas continued, prosecutors had good reasons – that had nothing to do with race – for striking the five black jurors at Flowers’ final trial. And to the extent that the court relied on the prosecution’s conduct at Flowers’ earlier trials, Thomas added, that story “might make for an entertaining melodrama, but it has no basis in the record.”

In the part of his dissent that Gorsuch did not join, Thomas criticized the court’s decision in Batson as “suspect when it was announced” and something about which he is “even less confident now.” Thomas reasoned that Batson gives a “windfall to a convicted criminal” who has not actually been injured – because he was not the juror who was the victim of discrimination – and therefore should not be able to challenge the juror’s exclusion. More broadly, Thomas complained, the system of peremptory challenges rests on the idea that a lawyer should be able to remove a potential juror from the jury pool, without providing an explanation, based on her gut feeling that the potential juror would not be sympathetic to her client’s case. By focusing on an individual juror’s rights, and requiring lawyers to provide a reason for their decision to strike a juror, Batson “is wholly contrary to the rationale underlying peremptory challenges,” Thomas concluded.

Thomas finished with blistering words for his colleagues in the majority, writing that if the court’s “opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again. Otherwise the opinion distorts our legal standards, ignores the record, and reflects utter disrespect for the careful analysis of the Mississippi courts. Any competent prosecutor would have exercised the same strikes as the State did in this trial.” And, Thomas added, “although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families.”

This is morally reprehensible. His argument is that the only ones who might be able to claim an injury here are the prospective jurors if they think they were discriminated against. That is so ludicrous that I can’t believe anyone could say it with a straight face. That discrimination resulted in this man facing the death penalty. Injuries don’t get any more serious than that, for crying out loud. At his confirmation hearings, Thomas gave this long soliloquy about how he would see these buses full of inmates being transferred drive by his office in DC and most of them were black. And that as a black man who had grown up in poverty, he would have unique insight into the difficulties faced by black defendants and would therefore be more compassionate. He lied, quite clearly. His record on criminal justice and racial equality is absolutely horrific. It’s small wonder that so many African-Americans consider him an Uncle Tom.

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