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.