Monday, October 22, 2018

How Blatant Must a Prosecutor's Racism Be for the SCOTUS to Notice?

by Michael C. Dorf

At its conference on Friday, the Supreme Court will decide whether to grant review in Flowers v. Mississippi (SCOTUS page here). Flowers was tried six times for the same offense. Each of the first five trials resulted in  a reversal of a conviction, a mistrial, or a hung jury. On try number six, a jury that was selected through racial discrimination found Flowers guilty and sentenced him to death. There are at least four reasons for the US Supreme Court to take the case or summarily reverse the decision of the Mississippi Supreme Court upholding the conviction and sentence.

First, there is a pretty high likelihood that Flowers is innocent, as highlighted by this David Leonhardt essay in the NY Times, the In the Dark podcast, and an amicus brief filed by various organizations, including the Innocence Project New Orleans. Conservative judges, justices, and scholars have for many years complained about constitutional doctrines being used to free criminals on technicalities. Whatever the merits of those complaints, they should carry a negative implication. If you're going to deride constitutional doctrine for benefiting the guilty, you have some obligation to embrace or at least apply it when it helps the innocent.

Second, the Mississippi Supreme Court's ruling is wrong on the law. In Batson v. Kentucky, the US Supreme Court held that a prosecutor's use of peremptory challenges in a racially discriminatory manner violates equal protection. Batson and subsequent cases establish a protocol for inferring discriminatory purpose: a defendant makes a prima facie showing of illicit discrimination by pointing to a statistical pattern of clearly disproportionate use of peremptory challenges against members of a racial group; then, the burden of production shifts to the prosecutor to offer a race-neutral rationale for each strike; and finally the trial judge makes a determination whether those rationales are credible or pretextual.

Flowers was tried by a jury that included only one African American, despite the fact that the venire was 42% African American. The prosecutor -- the same prosecutor whose conduct led to the prior reversals based on Batson violations -- exercised five of his six peremptory challenges against African American potential jurors. The trial judge found his ostensible race-neutral justifications credible and the Mississippi Supreme Court credited that finding.

That head-scratcher understandably led the SCOTUS to grant certiorari, vacate the Mississippi Supreme Court ruling, and remand for reconsideration in light of its 2016 decision in Foster v. Chatman. (This process of granting, vacating, and remanding is known as GVR.)

Readers may recall that Foster was the case in which the prosecutor's notes had highlighted the African American jurors' names in green and written the letter "B" for Black next to those names. The Court in an opinion by CJ Roberts, delved deeply into the prosecutor's explanation for the strikes (of all four African American jurors), finding that, in light of the notes, it could not be credited.

As in Foster, so in Flowers, the evidence that ought to be considered alongside the statistical pattern and the prosecutor's race-neutral explanation overwhelmingly points to racial motivation. Consider that, as the cert petition notes: "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."

Accordingly, following the GVR, Flowers argued to the Mississippi Supreme Court that "the Supreme Court's remand for reconsideration require[d it] to reevaluate the evidence of pretext in light of the prosecutor's history of discrimination and dishonesty." That seems obviously right. It's conceivable, of course, that the Mississippi Supreme Court could reevaluate the evidence but conclude that the prosecutor had acted out of nonracial motives in trial # 6, but one would think that this would be difficult to prove. Indeed, as Justice King wrote in dissent, the evidence was pretty overwhelming that the prosecutor's motives were tinged by racial intent.

Instead of re-evaluating the prosecutor's explanations in light of the fact that he had an adjudicated track record of race-based peremptories, the Mississippi Supreme Court essentially treated Foster as irrelevant. The majority wrote: "We cannot say that the exceptional circumstances discussed in Foster are present in today's case so as to prevent the Court from deferring to the trial court's factual determinations." The court also said that "Foster in no way involved a particular prosecutor's history of adjudicated Batson violations."

These are non-distinctions. Of course Foster involved somewhat different facts from Flowers. No two cases are identical. But in both cases the evidence of the prosecutor's past conduct sheds light on the credibility of a race-neutral explanation for an apparently race-based pattern of peremptories.

That brings me to the third reason why the SCOTUS should grant relief to Flowers: to preserve its own institutional integrity. When the Supreme Court GVRs a case for reconsideration in light of one of its recent precedents, it is saying that there is at least some good reason to think that the outcome was wrong. Again, a state court (or in a GVR to a federal appeals court, that court) can reaffirm its prior ruling after duly reconsidering the record in light of the new SCOTUS ruling. However, it has some obligation to do that--and that's not what the Mississippi Supreme Court did in Flowers on remand. It might as well have said Foster was a case from Georgia rather than Mississippi or the name Flowers has seven letters while the name Foster only has six.

The problem of state court defiance of Supreme Court precedent is an old one. It has occasioned some pointed statements from the Supreme Court about the obligations of state courts to carry out their duty under the federal Constitution--from Justice Story in Martin v. Hunter's Lessee to Justice Black in Testa v. Katt. But these statements are only words if state courts can evade them by paying mere lip service to SCOTUS precedent--as the Mississippi Supreme Court did after the remand in Flowers.

Fourth and finally, Flowers presents the Supreme Court with the opportunity to show that it meant what it said in Foster. The Mississippi Supreme Court was right in its characterization of Foster as "exceptional," but not in the way the court meant it. The case was exceptional in that there was a written record of admitted race-based use of peremptory challenges. Such a smoking gun is indeed exceptional.

However, in the sense that ought to matter, Foster was not so exceptional. The constitutional rule is that facially race-neutral actions deny equal protection when undertaken with an illicit racial purpose. Foster did not hold that the only way to prove illicit racial purpose is through the discovery of a smoking gun. In Flowers we have the next best thing to a smoking gun: evidence from past cases that this prosecutor is more than willing to use peremptory challenges based on race and then concoct facially neutral justifications. If that's not enough to call into doubt his facially race-neutral justifications in this case, then Foster really does mean that only extraordinary cases in which the prosecutor has produced a damning paper trail will result in the finding of Batson violations. By granting and reversing in Flowers, the Court can show that Foster was meant to bolster Batson, not to render it effectively a dead letter.

* Full disclosure: The cert petition was filed by my colleagues Sheri Johnson and Keir Weyble. That said, I would have written this essay exactly the same way regardless of the lawyers' identities.


Shag from Brookline said...

This draws a "smoking gun":

"Each of the first five trials resulted in either a reversal of a conviction or a hung jury. On try number six, a jury that was selected through racial discrimination found Flowers guilty and sentenced him to death."

emptying a six-shooter. Five strikes would have called "out" the prosecutor.

Joe said...

If you at first (or second, third, fourth or fifth) you don't succeed, try racial discrimination.

Salemicus said...

Have you read the reply? It is to be expected that the parties frame the facts differently, but here it's particularly stark. For example, if Mississippi is to be believed, your claim that the first five trials all ended in hung juries or overturned sentences is flatly false.

Joe said...

I looked over the state reply.

I'm not sure where it says the summary "is flatly false."

Their dispute is over the claim for discrimination. In fact, the repeated remand by the state court if anything helps their case, since it shows the state supreme court was diligent. Perhaps, the specific wording is the concern.

Though "flatly false" is fairly strong for that.

Shag from Brookline said...

Could it be that even without Gene Hackman "Mississippi Is [Still] Burning"?

Salemicus said...

State reply claims the fourth trial ended in a mistrial due to wilful juror misconduct, and implies that strict prosecution vigilance over jurors was thereby necessary.

Michael C. Dorf said...

Perhaps it's not my place to do so, but I'd like to offer Salem Al-Damluji a bit of advice about how to make his points civilly: Rather than taking the obnoxious combative tone you did, you might have said this: "I think you may have slightly misread the record in one relatively inconsequential way: one of the trials resulted in neither a reversal nor a hung jury but a mistrial." I would then have replied: "Good catch! I'll amend accordingly."

And in fact, II have amended above. The original version of this post -- which Salem Al-Damluji characterized as "flatly false" -- said "either a reversal of a conviction or a hung jury" where it now says "a reversal of a conviction, a mistrial, or a hung jury."

Joe said...

State reply claims the fourth trial ended in a mistrial due to wilful juror misconduct, and implies that strict prosecution vigilance over jurors was thereby necessary.

I first went to the SCOTUSBlog page, which has a link to the state supreme court opinion. It summarized the fourth and fifth trials this way: "Both resulted in mistrials when the jury was unable to reach a unanimous verdict during the culpability phase."

The state reply simply said Flowers IV ended in a mistrial.

For Flowers V, the state said this: "Ultimately, the jury foreman notified the trial court that the jury could not agree on a verdict. (Id. at 1797). The trial court declared a mistrial and dismissed the jurors"

My confusion here is that "flatly wrong" to me means at least most of the summary is wrong. But, the dispute seems connected to one case (the fifth trial, to be clear). As to that one, I can see the issue -- the state does imply juror misconduct interfered with their ability to decide.

"Due" though is implied. It is not as if the judge said "I'm declaring a mistrial because of juror misconduct."

Salemicus said...

But did I characterise your post as "flatly false"? Or did I merely note that Mississippi is telling a different story? After all, your original post is a pretty accurate summary of your buddies' brief, which doesn't mention any misconduct and implies the third trial effectively ended on a hung jury. Someone is being economical with the truth.

I find it fascinating that you parse my tone as combative when I took no position on whether your post was accurate. But your defensive tone betrays you. I don't agree that it's inconsequential to this case whether jurors positively disposed to the defendant were perjuring themselves to taint the jury pool, when the whole dispute is whether the prosecutor was simply questioning and striking potential jurors who knew the defendant's family, or whether this was pretextual. And that was just one example. It's not inconsequential whether the Mississippi Supreme Court found that Evans had committed Batson violations (as your friends claim) or it found no such thing (as Mississippi claims). It's not inconsequential that you imply that all prior reversals were based on Batson violations, whereas it seems that at maximum only one was, and the other two were on (the same) unrelated matter.

Now to be really explicit, so you don't mischaracterize me again - my stating that the two sides don't agree doesn't mean I am taking Mississippi's side. But - at the risk of sounding combative - when you say that you would have written the post the same way if you weren't pals with the petitioners' lawyers, I hope for your sake that isn't true.

Shag from Brookline said...

Just what are the consequences of S-A-D's "I hope for your sake that isn't true" is true?

David Ricardo said...

It would seem that the discussion is missing the point of Mr. Dorf's post, which as I understand it is (1) does not a consistent pattern in multiple trials of striking African American potential jurors when the defendant is Africal American provide sufficient evidence of a legally inappropriate prejudice in jury selection and (2) is the State of Mississippi Supreme Court defying the U. S. Supreme court after the case has been sent back to them to reconsider given that their position is inconsistent with Supreme Court rulings that prevent a prosecutor from using racial bias to select a jury.

Whether or not a hung jury is a 'mistrial' or is different from a 'mistrial' where there was inappropriate juror behaviour seems like a rather silly discussion to have in the wake of the very serious issues this case present, i.e., racial prejudice in a major trial and whether or not the Mississippi Supreme Court is operating with 1955 values. Since this case would have been under the radar for most of us, Mr. Dorf deserves credit for bring it to our attention and does not deserve criticism for any minor technicality in using legal terminology.

Marty Lederman said...

Isn't the conference on . . .

Michael C. Dorf said...

Marty is right. I looked at the docket sheet. Conference is on Friday. I've amended again above.