The conservative U.S. Supreme Court has seemingly abandoned an earlier policy against depriving Black defendants of a fair unbiased jury.
The hotly conservative John Roberts court did a strong about-face last week when it declined to take up an appeal by Black defendant, Tony Clark, who was convicted of murder by a nearly all-white jury in 2014. Just four years ago, however, the same court tossed a Black Mississippi death-row inmate’s conviction because of claims that prosecutors had unlawfully blocked Black people from serving on his jury. In that case, prosecutor Doug Evans tried Mississippi death-row prisoner Curtis Giovanni Flowers six times for a quadruple murder in Winona, Mississippi. When Flowers’ sixth trial ended in a conviction and death sentence, Flowers appealed to the Mississippi Supreme Court, arguing that Evans exhibited a racially discriminatory pattern by removing Black people from Flowers’ jury. Evans struck five Black jurors from his first trial, five from the second, 15 from the third, 11 from the fourth and five from the sixth. Information is not available for how many jurors Evans struck from Flowers’ fifth trial.
The court agreed with defendant Flowers and tossed his unconstitutional conviction, using an earlier pivotal Batson v. Kentucky decision that expressly prohibits the use of peremptory strikes to remove people from juries because of their race.
That decision is apparently no longer the case with the court’s recent Tony Terrell Clark v. Mississippi decision, however. With its refusal to take up Clark’s appeal, critics say prosecutors can now shamelessly maneuver and tweak juries to be nearly all white to encourage a conviction.
Supreme Court Justice Sonia Sotomayor joined with the court’s liberal block, Justice Elena Kagen and Justice Ketanji Brown Jackson, in arguing that the court’s conservative majority now encourages prosecutors to pick and choose jurors by race, which is “a stain on our justice system.”
Sotomayor argued that the Mississippi prosecutor in Clark v. Mississippi “appears to have struck as many Black prospective jurors as it thought it could get away with. The majority,” she said, “responded to … telling statistics with an equally telling silence, failing even to mention them in its … analysis. There is simply no way to square this with (it’s decision on the) Flowers (case).”
In her dissent, the three judges pointed out that the majority “failed to engage with the fact that the State conducted special investigations into some of the most qualified Black prospective jurors in an attempt to disqualify them.”
Evidence of manipulation arose in the Clark appeal after Mississippi prosecutors sought to justify their Black jury strikes with the results of two previously undisclosed investigations into two Black prospective jurors. It turns out that prosecutors had “run database searches and compiled printouts showing people with criminal records who happened to have the same last names as the Black prospective jurors.” For prospective Black juror Kathy Luckett, the state’s investigation turned up felony convictions and charges of people using the last name “Luckett” in the county. The State presented no evidence that any of these Lucketts were related to Kathy Luckett. The prospective juror even admitted under oath that she had no close family members who had been prosecuted for a felony, but prosecutors never even asked her about her family, which suggests their investigation was a sham pretext for discrimination.
Prosecution struck prospective Black juror Alicia Esco-Johnson using the same method. To justify its strike, prosecutors searched for felony convictions and charges on Madison County people carrying the “Esco” name. Once again, Esco-Johnson indicated under oath that she had no close family members with run-ins with the law, but the prosecution never even asked her this in voir dire questioning, likely because they did not want to undermine their efforts to toss her.
The office of Mississippi Attorney General Lynn Fitch told NBCNews that the purpose was “to seat a jury that would fairly consider and be willing to impose the death penalty,” and claimed both Black and white jurors were struck based solely on those considerations. However, after prosecutor tinkering, the Clark’s jury of 12 consisted of 11 white people and one Black person. There were only eight Black people out of 38 in Clark’s jury pool—21 percent—in a county that is almost 40% Black. Prosecutors blocked seven of those eight.
Sotomayor argued that the Clark case “is a perfect illustration” of abuse because no evidence exists that Madison County prosecutors gave white jurors the same scrutiny it gave Black members.
“Indeed, the State here accepted white prospective jurors without questioning them about family members that they admitted had been arrested or prosecuted or were currently incarcerated. This included close family members, such as one prospective juror’s stepson,” Sotomayor wrote.
Clark’s attorney, Alison Steiner told Black Girl Times that Madison prosecutors threw everything they had at Black jurors to remove them, no matter how ridiculous. One prosecutor tried to say a particular juror was biased because she attended the same school as Clark and so must have known him, despite that juror being several years older than Clark and denying under oath ever having met him.
“One of the really shocking things was the number of excuses authored by the prosecution (to strike jurors) … that just weren’t objectively true … that even the trial judge rejected as having no basis,” Steiner said. “They threw spaghetti at the wall … to see what would stick, and some of the spaghetti was worms.”
Sotomayor warns that the supreme court majority responded with silence to these incriminating patterns, meaning future courts will likely be filled with defendants like Clark who will have to watch as they are condemned by racially gerrymandered juries.
“Prospective jurors like Kathy Luckett,” she added, “… will learn that the color of their skin might deprive them of the right to sit as jurors in judgment of their peers. Finally, courts throughout the State will take note and know that this Court does not always mean what it says … a Black man will be put to death in the State of Mississippi based on the decision of a jury that was plausibly selected based on race. That is a tragedy, and it is exactly the tragedy that Batson and Flowers were supposed to prevent.”