The U.S. Supreme Court heard oral argument in a jury selection bias case last month in which Mississippi death row prisoner Curtis Flowers, an African-American, was tried six times for murder. Three of his convictions were overturned (because of misconduct on the part of the prosecutor), two ended when jurors were unable to render unanimous verdicts.

What’s more, the same prosecutor in all six cases, District Attorney Doug Evans, appears to have violated the Constitution by excluding black jurors (41 of 42) in all six trials.

The New York Times reports that, “In the first four trials, held between 1997 and 2007, Mr. Evans used all 36 of his peremptory challenges — ones that do not require giving a reason — to strike black jurors from serving. Three of those trials ended in convictions reversed on appeal, and one in a mistrial.”

In Flowers’ fifth trial in 2008, there were three African-Americans on the jury, which ended in a mistrial when the jury deadlocked.

The 48-year-old Flowers was convicted and sentenced to death in 2010 for the 1996 murder of four people found shot to death in a furniture store in Winona, Mississippi. In that trial, although Evans struck five of six black potential jurors, the state Supreme Court upheld his conviction, finding that he had legitimate reasons for excluding them.

The Washington Post reports that, while most of the justices seemed troubled by the systematic exclusion of black jurors in Flowers’ trials, there was also uncertainty over whether the court should only consider the 2010 trial, and ignore the previous history. “Chief Justice John G. Roberts, Jr. and others seemed to be searching for a rule that would guide courts about how far in the past they should go to judge whether a prosecutor’s offered reasons for striking a juror is pretext.” But according to the LA Times, Justice Brett Kavanaugh said, “We can’t take the history out of this case.” And, citing the fact that Evans had struck 41 of 21 black jurors over the course of six trials, added, “How do you look at that and not come away thinking” there was racial bias.

In Batson v. Kentucky (1986), the Supreme Court ruled that potential jurors could not be excluded from serving based on their race.

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