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Penn Law faculty react to SCOTUS ruling on jury selection in death penalty case

June 24, 2019

In Flowers v. Mississippi, the Supreme Court voted 7-2 to overturn the conviction and death sentence in the sixth murder trial of Curtis Flowers, finding that the prosecutor had engaged in misconduct by discriminating against black people in jury selection. Penn Law faculty provided their commentary on the decision. 


Dorothy Roberts, George A. Weiss University Professor of Law and Sociology; Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights

“In its 7-2 decision, Flowers v. Mississippi, the Supreme Court correctly overturned the murder conviction of Curtis Flowers, who has been on death row for 22 years, because the prosecutor unconstitutionally struck a black prospective juror in Flowers’s sixth trial after blatantly using peremptory challenges in the prior trials to keep black people off the juries. But the Court’s requirement that defendants prove prosecutors’ discriminatory motivation discounts the systematic role all-white juries have played since the slavery era in denying justice to black defendants and permits prosecutors to persist in evading constitutional scrutiny by providing race-neutral pretexts for excluding black potential jurors. Writing for the Court, Justice Kavanaugh stressed it held such an ‘extraordinary’ instance of prosecutorial misconduct unconstitutional in order to ‘enhance public confidence in the fairness of the criminal justice system,’ without breaking any ‘new legal ground’ to end the racist rigging of death penalty cases.”


John Hollway, Associate Dean and Executive Director of the Quattrone Center for the Fair Administration of Justice 

“In Flowers v. Mississippi, the Supreme Court vacates the sixth (!) trial of an accused murderer because the prosecutor, hell-bent on a conviction and having committed misconduct that marred four of the previous trials, improperly used peremptory challenges to exclude potential black jurors in the most recent trial.  The Court expressly limits its holdings to the unique procedural context of this case, but in the process of ruling that a criminal conviction can be vacated because of racial motivations applied to a single potential juror excluded through a peremptory challenge, the Court weakens the institution of the peremptory challenge, by definition a challenge for which no reason need be given.  As Justice Thomas points out in his otherwise misguided dissent, this well-intended ruling could have the unintended consequence of impairing jury selections from defendants in the future; if every peremptory challenge can be reviewed for racial bias, one can readily imagine minority defendants seeking to eliminate whites who are believed to have racial bias now falling prey to Batson challenges.  In the meantime, four murders remain unsolved, Curtis Flowers has spent 20 years in prison on charges for which he remains unconvicted, and the recently re-elected prosecutor whose misconduct damaged the prior trials, Doug Evans, now must decide whether to attempt a seventh trial of Mr. Flowers.  One hopes he will have the sense to refer the case to another office due to a conflict of interest in his office.”