On June 21, 2019, the court, 7-2, overturned the conviction of Curtis Flowers, a black man who — after six trials by the same local prosecutor — has been on death row for 22 years for the alleged murders of four people in Winona, Mississippi. In the majority opinion, Justice Brett Kavanaugh recounted the prosecutor’s “relentless, determined effort” to eliminate black jurors.
In most trial courts, lawyers are allotted a certain number of “strikes” of potential jurors for a stated cause and a certain number of strikes, called peremptory challenges, without stating a cause. Over six trials, the prosecutor used “peremptory challenges to strike 41 of the 42 black prospective jurors,” and in the sixth trial at issue before the court, the prosecutor struck “five of the six black prospective jurors,” “engaged in dramatically disparate questioning of black and white prospective jurors,” and “struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck.” The court described these facts as “extraordinary” and “critical” to its decision.
The court reiterated its 1986 holding in Batson v. Kentucky that “[e]qual justice under law requires a criminal trial free of racial discrimination in the jury selection process,” while clarifying that this new ruling “break[s] no new legal ground.”
In Batson, the court established a procedure intended to root out exclusions of jurors based on race. A party can raise a Batson challenge based on a race-based pattern of behavior in jury selection; if the trial judge finds the allegation credible, the lawyer using peremptory challenges is required to state race-neutral reasons for the strikes. Any race-neutral reasons will do. The party who raised the challenge must then persuade the judge that the reasons given are really pretexts for discrimination. It can be credibly argued that the process of jury selection “has devolved into an exercise in finding race neutral reasons to justify racially motivated strikes.”
A plethora of recent empirical studies concur that exclusion of jurors on the basis of race is “still a core feature of jury selection” post-Batson. To quote the Flowers opinion, “[t]he numbers speak loudly.”
The court’s decision to strictly limit its analysis to the extraordinary facts of Flowers’ case means that it adds nothing to a jurisprudence already widely regarded as a failure, as Justice Thurgood Marshall predicted in his Batson concurring opinion. Justice Samuel A. Alito Jr. correctly wrote in his concurring opinion that the Flowers case is “likely one of a kind.”
In recounting the court’s decisions prior to Batson, Justice Kavanaugh noted that Swain v. Alabama required proof of the state’s systematic removal of qualified black prospective jurors in order to show a constitutional violation — a burden that “was almost impossible for any defendant to surmount, as the aftermath of Swain amply demonstrated.” The same has become true under Batson.
Justice Kavanaugh catalogs the types of evidence now permitted to show racial discrimination, including statistics comparing the prosecutor’s use of peremptory strikes against black and white prospective jurors, “side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not,” the prosecutor’s disproportionate questioning of black prospective jurors, and “misrepresentations of the record” to support nonracial reasons for strikes. However, the court has so far refused to provide concrete guidelines that can be followed in practice.
The court’s penchant to step in only in the most blatant and egregious cases supported by multiple forms of concrete proof actually undermines any efforts to improve the current system. Case in point: The court had previously instructed the Mississippi Supreme Court to reconsider Flowers’ conviction in light of the court’s decision in Foster v. Chatman, another egregious case supported by the prosecutor’s race-based commentary in jury notes. The Mississippi Supreme Court still upheld the conviction 5-4, holding that “the exceptional circumstances discussed in Foster” were not present. More of the same can be expected.
The court further limited its holding by clarifying that Flowers’ case came to the court on direct review and therefore, the court owed no deference to the Mississippi Supreme Court. This raises the possibility that the outcome in Flowers might have been different on federal habeas review — a much less generous standard of review.
In its latest foray into Batson jurisprudence, the court continues to tout the principle that race-based jury selection “undermines public confidence in the rule of law” and jeopardizes the structure of our judicial system. These are vital issues that, as the Flowers case demonstrates, actually involve life and death. But without further guidance from the court, the principle it seeks to uphold will continue to falter.
A. Kate Margolis is counsel at Bradley Arant Boult Cummings LLP.
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 Joining the decision were Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan. Justice Clarence Thomas filed a dissent that Justice Neil Gorsuch in large part joined.
 Flowers v. State, 947 So. 2d 910, 937 (Miss. 2007) (Graves, J., dissenting) (internal quotation marks and citation omitted).
 Frampton, T. (2018). The jim crow jury. Vanderbilt Law Review, 71(5), 1593-1654; Nasif, N.; Sriram, S. K.; Smith, E. (2018). Racial exclusion and death penalty juries: Can death penalty juries ever be representative. Kansas Journal of Law Public Policy, 27(2), 164. See Joshua C. Polster, From Proving Pretext to Proving Discrimination: The Real Lesson of Miller-El And Snyder, 81 Miss. L.J. 491, 502 (2012) (describing “shocking disparities in prosecutorial use of peremptory challenges against white and minority prospective jurors”).
 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court can grant habeas relief for claims decided in state court if the state court decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2).