Brett Kavanaugh Judge Brett Kavanaugh speaks in the East Room of the White House after President Donald Trump nominated him to the U.S. Supreme Court. July 9, 2018. Photo by Diego Radzsinchi/ALM

Updated 12:20 p.m.

The U.S. Supreme Court, with a searing dissent by Justice Clarence Thomas, overturned a Mississippi death row inmate's sentence because of racially biased juror strikes by the prosecution.

The high court, in an opinion from Justice Brett Kavanaugh, ruled 7-2 that the judge in Curtis Flowers' sixth trial for the murder of four furniture store employees in 1996 wrongly applied the Supreme Court's 1986 decision, Batson v. Kentucky. That decision said that a state may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.

Flowers, who is black, was tried each time by the same prosecutor.

“[O]ur review of the history of the prosecutor's peremptory strikes in Flowers' first four trials strongly supports the conclusion that his use of peremptory strikes in Flowers' sixth trial was motivated in substantial part by discriminatory intent,” Kavanaugh wrote.

He added: “The numbers speak loudly. Over the course of the first four trials, there were 36 black prospective jurors against whom the state could have exercised a peremptory strike. The state tried to strike all 36. The state used its available peremptory strikes to attempt to strike every single black prospective juror that it could have struck.”

Justice Samuel Alito Jr., concurring in the opinion, called the case “highly unusual” and “likely one of a kind.” Based on the “totality of the circumstances,” Alito, generally a pro-government vote, wrote, “I agree with the court that petitioner's capital conviction cannot stand.”

Thomas, joined in part by Justice Neil Gorsuch, offered a dramatically different view of the case in his 41-page dissenting opinion.

“If the court's opinion today has a redeeming quality, it is this: The state is perfectly free to convict Curtis Flowers again,” Thomas wrote. “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 although the court's opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims' families.”

Thomas said the “more fundamental problem” is the Batson decision itself. Quoting from his previous opinions involving Batson, Thomas added, “The 'entire line of cases following Batson' is 'a misguided effort to remedy a general societal wrong by using the Constitution to regulate the traditionally discretionary exercise of peremptory challenges.'”

Gorsuch did not join the portion of the dissent in which Thomas called into question the correctness of Batson and its progeny.

At the oral argument, Kavanaugh played a lead role in raising questions about the jury selection in Flowers' case. Kavanaugh, at his confirmation hearing in 2006 to the U.S. Court of Appeals for the D.C. Circuit, said: “I think one of the great Supreme Court decisions ever decided was Batson v. Kentucky.”

Sherrilyn Ifill, president and director-counsel at the NAACP Legal Defense and Educational Fund, said in a statement: “Racial discrimination in jury selection almost cost Curtis Flowers his life, but the Court's ruling vindicates the principle that racial bias must not be permitted to infect the criminal justice system.”

She continued: “Mississippi's Fifth Judicial District has a long, disturbing history of denying Black people the right to serve on and be judged by a fair jury. As today's opinion indicates, these rights are just as integral to full participation in our democracy as the right to vote, and they must be protected just as vigorously.”

 

 

The court's ruling in Flowers v. Mississippi is posted below:

 

 

Read more:

Kavanaugh Takes Lead Role Favoring Mississippi Death Row Inmate

Public Safety Depends on Juries Chosen Without Racial Discrimination

Chief Justice Roberts Joins Liberal Wing to Snub Alabama Court in Death Case

 

This story was updated with comment about the Supreme Court's ruling.