Justice Brett Kavanaugh. Credit: Diego M. Radzinschi /ALM

Conservative U.S. Supreme Court justices, led by Brett Kavanaugh, joined forces with liberals on Wednesday in what came across as a likely win for Mississippi death-row inmate Curtis Flowers in his lengthy battle against jury selection bias.

During an hourlong argument in Flowers v. Mississippi, justices from across the spectrum expressed displeasure at the handling of Flowers' six trials for the same crime by prosecutor Doug Evans, who persistently used peremptory challenges to strike African-Americans from the jury pool.

Flowers, who is African-American, was accused of murdering four people in 1996 at a furniture store in Winona, Mississippi. If Flowers wins at the high court, his legal battle is not over. His case could return to Mississippi courts for yet another trial, or for further consideration of past jury selection bias.

A key issue in the argument was whether the Supreme Court, in deciding the case before it, could take into consideration only Flowers' most recent trial or also look at the race-laced record of the previous five trials.

Kavanaugh made short shrift of the dilemma, asserting that under court precedent, “We can't take the history out of the case.” In grilling Mississippi's lawyer, Jason Davis, Kavanaugh stated, “It was 42 potential African-Americans and 41 were stricken, right? That's relevant, correct?”

Later, Kavanaugh said: “When you look at the 41 out or 42, how do you look at that and not come away thinking that was going on here was … a stereotype that you're just going to favor someone because they're the same race as the defendant.”

Kavanaugh has been critical of biased jury strikes since he was a Yale Law School in 1989, when he wrote a law review note about the 1986 Batson v. Kentucky case, which ruled that potential jurors cannot be excluded on the basis of race. He wrote that “the defense must be present” to be able to rebut a prosecutor's claim that race was not the reason for a peremptory strike.

In his 2006 confirmation hearing for a seat on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh said, “I think one of the great Supreme Court decisions ever decided was Batson v. Kentucky.”

Chief Justice John Roberts Jr., who has also supported the Batson ruling, seemed concerned Wednesday about the “unusual” history of the Flowers case and whether that history could be cited in the context of his most recent trial. But by the end, Roberts seemed to have decided that no court precedent prevents the court from weighing the history.

Justice Samuel Alito Jr. also said the history of Flowers's case is “deeply troubling.” But he went on to closely question the details of the sixth trial, in which Evans struck five of the six African-American potential jurors. Alito seemed to support the notion that the sixth trial was the only one that counts in the high court's decision-making.

Justice Clarence Thomas (2015). Credit: Diego M. Radzinschi/ ALM

The argument Wednesday was also notable because Justice Clarence Thomas asked a question for the first time since 2016. He has said in the past that he comes to an argument with questions in mind, but if other justices ask his questions, he is content to remain silent.

Toward the very end of the argument Wednesday, Thomas asked a question no other justice had raised: whether the defense attorney had exercised any peremptory challenges in the most recent trial. Flowers' lawyer, Sheri Lynn Johnson, a professor at Cornell Law School, responded that Flowers' trial lawyer had struck six potential jurors, all white.

But Justice Sonia Sotomayor interjected to note that there were almost no black jurors left for the defense to strike.

 

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