At Supreme Court, Racial Justice an Elusive Goal

      Keith Tharpe and Curtis Flowers are two African American defendants convicted of capital murder and sentenced to death in southern states after trials infected with racial bias. The Supreme Court considered both of their cases last week by ending Tharpe's effort to overturn his conviction [March 17] while appearing receptive during arguments [March 19] on Flowers' plea for a new trial based on the white prosecutor's blatant racial bias in jury selection.
      The two Supreme Court cases, with one loss for racial justice and not yet a vindication for racial justice in the other, are the most recent evidence that racial discrimination remains widespread in criminal justice systems — certainly in the South and just as certainly elsewhere. Dating as far back as the Scottsboro Boys case in the 1930s, the Supreme Court has stood guard against the most blatant examples of racial injustice, but too often the present-day Court is either unwilling or unable to ensure the goal carved in the pediment above its main entrance: Equal Justice Under Law.
      To their credit, eight of the nine justices were all evidently disturbed by the blatant racism practiced by District Attorney Doug Evans in his protracted efforts over six trials dating over 13 years to convict Flowers of killing four people in 1996 at the small-town store where Flowers had formerly worked. In two of those trials, Evans, the longtime district attorney for a seven-county judicial district in north central Mississippi, was found to have violated the Supreme Court-established rule against excluding potential jurors because of their race; a third conviction was overturned because of other prosecutorial misconduct.
      The two other previous trials ended in mistrials with the predominantly white juries unable to agree on a unanimous verdict—thus, suggesting that the evidence against Flowers was less than clear-cut. Those trials with hung juries were the only ones with more than one African American juror—thus, suggesting the reason for Evans' unrelenting efforts to use so-called peremptory challenges to keep blacks off the jury.
      The 2010 conviction under review in Flowers v. Mississippi came after a trial in which Evans used all but one of his six peremptory challenges to strike black potential jurors. Viewed in isolation, Evans' actions in the sixth trial would seem less than remarkable to courthouse reporters with experience in covering racially charged criminal trials in the South or elsewhere.
      White prosecutors routinely question black jurors more aggressively than white jurors to try to develop what can pass for "race-neutral" reasons for keeping blacks off juries. The Supreme Court's precedent-setting decision in Batson v. Kentucky (1986) held that exercising peremptory challenges against potential jurors based on their race in state court trials violates the Fourteenth Amendment's Equal Protection Clause.
      Over time, lower courts have developed and the Court has accepted a three-part test to determine whether Batson has been violated. The party raising the issue, normally a black defendant, has the initial burden to show a prima facie case of discrimination; with that standard met, a court can order the other party, normally the prosecutor, to provide race-neutral reasons for excluding black jurors. The burden then shifts back to the defendant to argue and prove purposeful discrimination.
      As a practical matter, trial judges routinely defer to prosecutors' explanations: Evans may be one of the few prosecutors ever to have two adjudicated Batson violations on his resume. But Evans has been consistent in racial profiling of potential jurors, according to statistical evidence compiled by American Public Media reports. As part of a path-breaking podcast, the APM reporters found that in 225 trials in Evans' tenure, he had used peremptory challenges to strike 49.81 percent of black jurors — nearly half —  but only 11.21 percent of white jurors.
      Representing Flowers, the NAACP Legal Defense Fund's lawyer Sheri Lynn Johnson opened her argument on Wednesday by saying that the "only plausible explanation" for Evans' conduct over six trials was that he was pursuing "an unconstitutional end . . . to seat as few African American jurors as he could." From the bench, Justice Samuel A. Alito Jr., perhaps the most prosecution-oriented of the five conservatives, called the history of the case "very troubling," but he joined later with others in struggling for a general rule to craft for Batson cases in this most discreditable of cases.
      By the end of the hour-long argument, eight justices, all but Clarence Thomas, had registered their concerns about Evans' conduct. But with Johnson at the lectern for rebuttal, Thomas asked a question for the first time in three years: a gotcha question aimed at eliciting Johnson's admission that Flowers' trial counsel had exercised her peremptory challenges to exclude white, not black, jurors.
      Two days before the Flowers argument, the Court had turned aside Keith Tharpe's plea for a new trial based on late-developed evidence that one of the jurors in his capital murder trial in Jackson, Georgia, in 1991 had made blatantly racist statements in jury room arguments for sentencing Tharpe to death. Without dissent, the justices declined on procedural grounds to review the most recent federal appeals court decision to let the conviction and death sentence stand. 
      Justice Sonia Sotomayor went along with shelving Tharpe's case but only after saying she was "profoundly troubled" by the facts of the case. Quoting from a prior decision, she ended with a blunt warning: "The work of 'purg[ing] racial prejudice from the administration of justice' is far from done."