A High Court Win Will Not End Discriminatory Jury Selection

By Tyler Maulsby | July 28, 2019, 8:02 PM EDT

Tyler Maulsby
Last month, the United States Supreme Court reversed and remanded the murder conviction of Curtis Flowers, an individual who was tried six times for the same alleged murders, based on evidence that the prosecutor racially discriminated against jurors in at least five of those trials. In addition to fairness in jury selection, Flowers v. Mississippi[1] raises important ethical issues about a lawyer's ability to discriminate in the practice of law and what the bar should do about it.


The facts of Flowers are extraordinary. In 1997, Curtis Flowers was charged with murdering four people in Winona, Mississippi.[2] According to the opinion, Winona's population is approximately 5,000 people, 53% black and 46% white.[3]

At Flowers' first trial, the prosecutor used peremptory strikes to challenge all five of the black jurors in the venire. Flowers was tried by an all-white jury, convicted and sentenced to death, but the Mississippi Supreme Court reversed his conviction on prosecutorial misconduct grounds (unrelated to jury selection).[4]

At Flowers' second trial, the prosecutor again used his peremptory strikes against all five black prospective jurors. The trial court, however, rejected one of those peremptory strikes, pursuant to Batson v. Kentucky,[5] a landmark decision that ostensibly prohibits lawyers from using peremptory strikes to discriminate against jurors on the basis of race. Flowers was convicted a second time but the Mississippi Supreme Court again reversed Flowers' conviction on prosecutorial misconduct grounds.[6]

At Flowers' third trial, the prosecutor used all 15 of its peremptory strikes against black prospective jurors, although one black juror was seated after the prosecutor ran out of peremptory strikes.[7] Flowers was convicted a third time, but the Mississippi Supreme Court again reversed, this time on Batson grounds. In its third reversal, the Mississippi Supreme Court held that "[t]he instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge."[8]

At Flowers' fourth trial, the prosecutor exercised 11 peremptory strikes, all against black prospective jurors.[9] The final jury at the fourth trial consisted of seven white members and five black members and the jury was unable to reach a verdict.[10] Flowers' fifth trial consisted of nine white jurors and three black jurors and similarly ended in a mistrial after the jury announced that it could not reach a verdict.[11]

Finally, at Flowers' sixth trial, the prosecutor used his peremptory strikes to remove five of the six black prospective jurors in the venire and sat one black prospective juror.[12] Flowers was convicted and sentenced to death.[13] The Mississippi Supreme Court affirmed Flowers' conviction and rejected his Batson arguments. [14]

The U.S. Supreme Court reversed, holding that "all of the relevant facts and circumstances taken together established that the trial court committed clear error in concluding that the State's peremptory strike of [one of the black prospective jurors] was not 'motivated in substantial part by discriminatory intent.'"[15]

In addition to the prosecutor's history of discrimination during jury selection at Flowers' previous trials, the court also noted the "dramatically disparate questioning of black and white prospective jurors in the jury selection process for Flowers' sixth trial."[16] While the prosecutor asked the eleven seated white jurors a total of 12 questions, he asked the five black prospective jurors a total of 145 questions.[17] Notably, Flowers was tried by the same prosecutor in each trial.[18]

The Ethics Issues

The pervasive discrimination that occurred in Flowers has deep implications for our criminal justice system. But that's not what this article is about. Flowers also raises serious ethical issues for lawyers, including questions about the bar's role in regulating discrimination by lawyers. Despite unequivocal findings by multiple courts that the same prosecutor continuously discriminated against black prospective jurors, that same prosecutor seems poised to decide whether to try Flowers a seventh time.

Forty-three years after Batson, it is extraordinary that the only remedy for such rampant discrimination is for Flowers to obtain yet another reversal and then wait to see if he will be afforded due process on the seventh try. The ethics rules governing our profession require that we do more.

Rule 8.4(g) of the American Bar Association Model Rules of Professional Conduct states:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

The comments to Model Rule 8.4 make clear that "[d]iscrimination and harassment by lawyers in violation of [Rule 8.4(g)] undermine confidence in the legal profession and the legal system."[19] As relevant to juror discrimination, the comments state that "[a] trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of [Rule 8.4(g)]."[20] While this comment may protect a lawyer who commits an isolated or inadvertent violation of Batson, it is not meant to excuse the type of discrimination that occurred in Flowers, which went well beyond a single trial judge's finding in one trial.

Although the ABA did not adopt Model Rule 8.4(g) until 2016, the idea that lawyers, in the course of their practice, should not engage in discriminatory behavior is not new. Earlier versions of the model rules included commentary that certain forms of discrimination were prohibited if the conduct was also "prejudicial to the administration of justice."[21] It is difficult to imagine a type of discrimination that is more prejudicial to the administration of justice than repeatedly denying someone the right to sit on a jury because he or she belongs to a certain race. The Flowers court made a similar observation.[22]

Even before the ABA adopted Model Rule 8.4(g), approximately 25 states had already adopted their own versions of a rule prohibiting discrimination and harassment in the practice of law.[23] In other words, a consensus appears to be growing among lawyers that discrimination in the practice of law should not be tolerated.[24]

Looking Forward

Despite the general opposition to discrimination in the practice of law, the legal profession struggles when it comes time to put words into actions. To that end, the ethics rules can be a helpful tool if lawyers actually want to take steps toward eradicating discrimination in the profession. The ethics rules are minimum standards of conduct for lawyers and are meant to, among other things, protect the public and ensure confidence in the legal profession.[25]

Although Flowers will receive a new trial, that does not address the underlying ethics issues, nor does it do anything to promote confidence in the legal profession. Instead, it risks sending a message to the public that because Flowers' conviction was reversed, we can just move on and hope it never happens again. But the history of Flowers tells us we are kidding ourselves. This was not the first time Flowers' conviction was reversed on Batson grounds and yet juror discrimination persisted. Unless and until we are willing to do more as a profession to combat discrimination and use the ethics rules for their intended purpose, we risk history repeating itself once again.

Correction: An earlier version of this article misspelled "peremptory" throughout. The errors have been corrected. 

Tyler Maulsby is counsel at Frankfurt Kurnit Klein & Selz P.C. He thanks Nicole Hyland, a partner at the firm, for her assistance with this article.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 588 U.S. __ (2019).

[2] Id. (Slip Op. at 3).

[3] Id.

[4] Id. (Slip Op. at 3-4).

[5] 476 U.S. 79 (1986).

[6] Flowers, 588 U.S. __ (Slip Op. at 4-5).

[7] Id. (Slip Op. at 5).

[8] Id. (Slip Op. at 5) (quoting Flowers v. State, 947 So. 2d 910, 935 (Miss. 2007)).

[9] Id. (Slip Op. at 6).

[10] Id.

[11] Id. As the Court noted, there was no information available in the record concerning the prosecutor's use of peremptory strikes at Flowers' fifth trial.

[12] Id.

[13] Id. (Slip Op. at 6-7).

[14] Id. (Slip Op. at 7).

[15] Id. (Slip Op. at 3) (quoting Foster v. Chatman, 578 U.S. __ (2016) (Slip Op. at 23)).

[16] Id. (Slip Op. at 23).

[17] Id.

[18] Id. (Slip Op. at 3).

[19] Model Rule 8.4(g), Cmt. [3].

[20] Id. Cmt. [5].

[21] See Model Rule 8.4(d), Cmt. [3] (adopted 1998 and renumbered in 2001).

[22] See Flowers, 588 U.S. at __ (Slip Op. at 15) ("Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.").

[23] See, e.g., N.Y. R. Prof. Cond. 8.4(g) (prohibiting a lawyer from "unlawfully discriminating in the practice of law"); see also ABA Center for Prof. Responsibility, Policy Implementation Committee, Jurisdictional Adoption of Rule 8.4(g) of the ABA Model Rules of Professional Conduct (June 2019), available at https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/chart_adopt_8_4_g.pdf.

[24] That is not to say that Model Rule 8.4(g) is without its detractors. See, e.g., Dennis Rendleman, The Crusade Against Model Rule 8.4(g), ABA Ethics In Review (Oct. 2018) (discussing opposition to Rule 8.4(g) on constitutional grounds). Despite this opposition to Model Rule 8.4(g), however, it was unanimously approved by the ABA's House of Delegates. See id.

[25] See Model Rules Preamble at [1].

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