With DA Out, What's Next For Curtis Flowers?

By Cara Bayles | January 12, 2020, 8:02 PM EST

Prosecutor Doug Evans' decision to recuse himself from the case of Curtis Flowers, whom Evans has tried six times for the same murder, raises fresh questions about what will happen to Flowers as he faces a possible seventh trial. (AP)

For 23 years, Mississippi prosecutor Doug Evans doggedly prosecuted Curtis Flowers, dragging him to trial six times for the same quadruple murder as Flowers maintained his innocence.

But last week, Flowers learned he won't face Evans in court again.

Evans on Jan. 6 sought to recuse himself and his office from the case. He recommended the Mississippi attorney general's office take over prosecution in a potential seventh trial.

"While I remain confident in both the investigation and jury verdict in this matter, I have come to the conclusion that my continued involvement will prevent the families from obtaining justice and from the defendant being held responsible for his actions," Evans wrote. He declined to a request for comment.

Evans drew national headlines for trying Flowers six times for the 1996 murder of four people in the Tardy Furniture store in Winona, Mississippi. Three guilty verdicts were overturned by the Mississippi Supreme Court, which found Evans had engaged in misconduct at trial. Two more trials ended without a verdict, thanks to deadlocked juries.

The most recent guilty verdict and death sentence were reversed by the U.S. Supreme Court in June. The court, in a decision authored by Justice Brett Kavanaugh, found Evans, who is white, had engaged in a "relentless, determined effort" to eliminate African-Americans from the jury deciding the fate of Flowers, who is black.

That high court opinion likely soured Evans on the case, said Bennett Gershman, a former Manhattan assistant district attorney and now a law professor at Pace University with expertise in prosecutorial misconduct.

"The Supreme Court was highly critical of his conduct, and that may have influenced his decision to leave the case," Gershman said. "He didn't want another mark against him. He's already got a number of them."

Evans' motion last week sought to pass the case to the Mississippi attorney general's office amid a changing of the guard there.

Democrat Jim Hood, who'd served as attorney general for 16 years, didn't seek reelection last year, opting instead for a failed gubernatorial bid. But he said in a statement last week that he believed the case should again go to trial. Appellate courts sometimes "allow emotions to overcome logic in tough cases," he said, and "juries get it right 99.9% of the time."

"Doug Evans has been an honest lawman and prosecutor for as long as I can remember," Hood said. "My personal two-bits is the facts are sufficient for the case to be retried. … A fair jury should resolve this case one way or another."

But, he added, "who prosecutes this case will be up to the trial court and the next AG."

Attorney General Lynn Fitch, who was sworn in on Thursday, declined to comment on the case last week.

Fitch, who served for the past eight years as the state's treasurer, billed herself as a "solutions-driven conservative." Her campaign website promised that as attorney general, she would be "tough and smart on crime," and "support crime victims and their families."

Curtis Flowers speaks with reporters as he exits the Winston-Choctaw Regional Correctional Facility in Louisville, Mississippi, in December. Flowers' murder conviction was overturned by the U.S. Supreme Court for racial bias. He was granted bond by a circuit judge and is free, with a number of conditions, for the first time in 22 years.

But getting new eyes on the Flowers case represents "a moment of hope," according to Sara Totonchi, executive director Southern Center for Human Rights, who added the case shows "the Mississippi justice system still has much further to grow if it is to disengage itself from its racist roots."

"I am optimistic Attorney General Fitch will bring a fresh level of honesty and professionalism to her review of the record of this case," she said.

Flowers' attorney, Rob McDuff, who serves as director of impact litigation for the Mississippi Center for Justice, also seemed hopeful. He told Law360 that Fitch will have to consider the trial judge's evaluation of the evidence. At a hearing last month, Circuit Judge Joey Loper called the case weak and "wholly circumstantial."

"We assume the new attorney general will conduct an independent review to evaluate whether to dismiss the charges," McDuff said in an email.

McDuff filed a motion to dismiss the case back in September, three months after the Supreme Court's ruling. Pointing to "the shortcomings of [the prosecution's] evidence and the unseemliness of its tactics," the motion argued that a seventh trial due to the state's misconduct would violate the constitution's double jeopardy clause and Flowers' due process rights.

A month later, McDuff also filed a motion to recuse Evans, arguing all four convictions in the case had been overturned due to his misconduct, and that "it is time to move forward with a new prosecutor who does not have this cloud hanging over him or her."

Evans all but disappeared from the case after the Supreme Court's decision. He didn't respond to the dismissal motion in spite of a court order to do so, nor did he argue at a bail hearing last month, where Flowers was granted his release after nearly 23 years in prison.

At that hearing, Judge Loper noted that several of the prosecution's key witnesses have recanted, leaving "wholly a circumstantial evidence case which places the higher burden on the prosecution." He also expressed surprise that Evans didn't show up to the hearing, sending Assistant District Attorney Adam Hopper in his stead.

"I want to note the troubling fact that in the nearly four months this case has been back before the court, the state of Mississippi has taken absolutely no action of any kind in furtherance of this prosecution," he said. "I have this caution for the state of Mississippi: If it continues in its dilatory conduct, the state will reap the whirlwind."

Three weeks later, Evans filed his motion to recuse.

Such motions are "extremely rare," according to Kay Levine, a law professor at Emory University.

"Where this happens it is typically due to a conflict of interest, rather than a past history of misconduct," she said in an email.

Gershman, the Pace law professor, said Evans likely decided it would be better for the prosecution if he stepped down, because "he's associated with the case in such a vile way."

But what will happen next in Flowers' case is unclear, he said. Flowers' motion to dismiss is still pending, but no reply brief has been filed.

"It's kind of tricky procedurally," Gershman said.

Judge Loper could wait for the attorney general to step in "maybe for the purpose of responding to the motion to dismiss," he said. Then, the next step would depend on whether the attorney general decides to oppose the motion or not.

But, Gershman added, Judge Loper could also take months of silence on the motion to dismiss as a lack of opposition.

"I'm not sure that the judge can't grant the motion," Gershman said. "I'm not saying he would. It would take a certain amount of courage for the judge to do it. But he's already granted bail and released Flowers and indicated his attitude about the evidence. I'm not sure it would be so unusual or improper."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Rebecca Flanagan.

Correction: A previous version of this article misstated Rob McDuff's title. The error has been corrected.

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