From The Ethics Alarms “I Don’t Understand This At All” Files: The Persecution Of Curtis Flowers

The Mississippi Supreme Court yesterday threw out the murder conviction of Curtis Flowers—again. Two months ago,  the U.S. Supreme Court ruled that the prosecutor, Doug Evans, methodically kept blacks  off the jury, a clear violation of Flowers’ rights by SCOTUS precedent. Evans is white, Flowers is black, and he has now been tried six times for the same crime, the 1996 murders of four people in a Winona, Mississippi furniture store. Every trial has ended in a mistrial or a conviction that was subsequently overturned on appeal because of prosecutorial conduct.

Just pause and take all of that in for a moment.

Flower is now 61, and has been in prison all this time—22 years– while his various trials have been botched.

I have nothing but questions. Like…

  • How does the prosecutor, Evans, still have a job?
  • Why did judges allow him to obviously prevent blacks from being empaneled on juries, when the law on this practice is clear, well-known, and long-standing?
  • In  four of the trials, held between 1997 and 200, Evans used all 36 of his peremptory challenges to strike potential black  jurors.  The jury at the sixth trial convicted Flowers in 2010 and sentenced him to death. It was composed  of one black and 11 white jurors. The Mississippi Supreme Court had affirmed that conviction and sentence. How? Why? During jury selection,  Evans asked blacks in the juror pool  an average of 29 questions each, while asking the 11 white jurors who were eventually seated an exactly one question in all but a couple of cases.

I have no idea if Flowers is guilty or not. He probably is; I’m sure Evans thinks he is. It doesn’t matter: guilty of not, the man has a right to fair trial. Does Mississippi not comprehend this basic fact of American law? How do unethical, incompetent prosecutors like Evans continue to savage the justice system without being removed from office and getting disbarred?

This is not an isolated case, just an unusually egregious one.

Finally, why isn’t there a statutory limit, or a judicial one, on the number of “bites at the apple” the prosecution gets before a defendant has to be declared free and immune from further persecution? I can think of several ways what has been done to Flowers is unconstitutional—right to a speedy trial, for example. Shouldn’t this mean a right to a fair, valid, completed trial? Flowers has been waiting for one of those for more than two decades.

A award-winning podcast on the Flowers fiasco is here.

A documentary is here.

______________________________

Pointer: Esther Covington

14 thoughts on “From The Ethics Alarms “I Don’t Understand This At All” Files: The Persecution Of Curtis Flowers

  1. I was part of a team that successfully overturned a death penalty verdict in Mississippi. The legal system there is pretty terrifying — especially if you’re poor and black.

  2. Evidently, Mr. Evans was just reelected earlier this month, having run unopposed for another term as District Attorney General for the Mississippi Fifth Judicial District.

  3. Doug Evans is zn elected dustrict attorney, so he has a job because voters keep re-electing him.

    A big question is why the state does not remove Evans’s office from the case. Assign it to the AG’s office or maybe another district attorney.

    And change the venue as well.

  4. I was part of a criminal trial jury once. During the selection process, the judge explained to us that each side had X number of people they could remove for any reason that they wanted, without having to give justification. Conflicts of interest that the judge agreed with didn’t count against that number. Is that not the case? If it is the case, why do these trials result in mistrials/prosecutor misconduct?

    Please note that I am not arguing ethics vs law, but just perplexed by what I thought was the law.

    • The issue is systematically excluding eligible jurors because they are black. Preemptive strikes are an accommodation of the ethics incompleteness theorem; because not all valid objections to a potential juror can be easily expressed, the law allows certain objections to be made without explicit explanation.

      If the basis of objection to an juror can be easily expressed, such a conflict of interest (relative or business partner of the accused or victim, etc), then the judge himself with disqualify the juror. Other objections can be more difficult; within the limited pool of potential juror a defense attorney might think a someone would be too harsh on his client or the prosecutor might think someone would be too easy on the defendant. These are hunches, based on limited information, that would difficult to express satisfactorily to judge, and the preemptive strike allows their concern to be addressed.

      However, the race of a potential juror, alone, is NOT a valid objection. Using preemptive strike to exclude a certain race is an abuse of the privilege.

      • I absolutely agree that it is an abuse, and an egregious one at that. Ethically indefensible, I would think. However, isn’t it legal? Thus, how does it lead to mistrial/prosecutor misconduct? Can’t he just say, “I had a hunch that he’d be bad?”

        Again, I’m not saying it is right, but I thought it was legal and thus don’t understand why it leads to multiple failed trials.

        • It’s not legal. That’s the result of the SCOTUS decision holding that to dismiss jurors based on race alone is unconstitutional. Proving that race was the sole or primary reason is a fact issue.

          • Yes. I have not read the Batson case, but my understanding is that part of the rationale is that jury duty is a duty as well as a right of citizenship. So, excluding someone on the basis of race violates that person’s right as a citizen.

            -Jut

            • The Flowers mess moves me a bit more toward Batson. As with gender, race is a legitimate factor in avoiding jury bias: look at the OJ jury. I dislike the opinion, but when I look at a prosecution like Flowers’ I can see how it might be the lesser of evils.

  5. How is it that this prosecutor is not in prison?

    Seriously, any serial violator of civil rights should be prosecuted and imprisoned. It is a crime, or should be if it isn’t, and Evans is a walking, talking argument for the reform of prosecutorial immunity.

    But leaving that aside, it still should be possible to remove him and charge him with misconduct. The fact it hasn’t happened lends strong evidence to the argument of institutional racism in whatever jurisdiction Evans is employed by.

  6. In one of the later trials, Doug Evans had two of the Flowers’ jurors arrested for felony perjury. This is a 2008 article from one of the local papers.

    The Daily Star

    WINONA – District Attorney Doug Evans said the two jurors charged with perjury in the Curtis Flowers murder trial will be investigated further.
    James Bibbs and Mary Annette Purnell, both of Winona, were arrested and charged with lying to the court. Reportedly, Bibbs’ actions on Tuesday resulted in a mistrial in the case.
    Flowers has been convicted three times and given the death penalty for the execution-style murders of Tardy Furniture Store owner Bertha Tardy and three of her employees in Winona in July 1996. Those convictions have been overturned on appeal, and a trial in 2007 ended in a hung jury.
    Evans said there will be a further investigation by several state agencies on the perjury cases to determine if anyone else is involved. Evans said if others are found, they will also incur felony perjury charges in connection with a capital case and would face 10 years to life in prison.

    Charges against one juror, James Bibbs, were dismissed and I don’t know the disposition of the case against the juror. It’s a small community and it’s very likely potential jurors would know the defendant or victims or any relatives of either side. I have never heard of a juror being arrested and charged with perjury for something said during voir dire.

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