Jury Diversification: Correcting Prosecutorial Misconduct in the Aftermath of Flowers
After two decades behind bars, Curtis Flowers was released from the Mississippi correctional facility where he was imprisoned for charges that have been dismissed after an unprecedented sequence of six trials. The Attorney General decided to dismiss the charges against Flowers after admitting that the former prosecutor had a pattern of dismissing prospective jurors on the basis of race. The discriminatory misconduct that tainted Flowers’ case, although extreme, is not uncommon in our judicial system. Competent prospective black jurors across the country have been sent home after a day of jury selection due to explicit or implicit bias by a prosecutor.
But why do prosecutors not want black jurors in their jury pool? The answer lies in the statistics: In cases with no black jurors, black defendants are convicted 81% of the time, while white defendants are convicted only 66% of the time. In 2001, Bowers, Steiner and Sandys conducted a socio-legal study to examine the effect of diverse jury composition on conviction and sentencing outcomes. The study used information from the Capital Jury Project, which interviews jurors from trials across the country, including 1,115 jurors from fourteen different states. Their findings revealed two statistically significant patterns in juror decision making:
A jury that has a white majority is more likely to impose the death penalty in cases with black defendants.
A jury with at least one black juror will increase the likelihood of imposing a life sentence instead of a death sentence.
These patterns became known as the white male dominance versus the black male presence. By creating a microcosm of diversity within the jury, jurors are able to exchange ideas and discuss outcomes with more broad perspectives. The effect of diverse juries is outcomes that are less influenced by biases and more focused on making informed conclusions based on fact. When juries become more diverse, courts can begin to counteract the disproportionate discrimination faced by black defendants in criminal trials.
Issues regarding jury selection begin with the prosecutor. Prosecutorial misconduct is an area of law that is difficult to prove and therefore reverse, especially when it comes to unconstitutional voir dire. In other areas of law, there are easier solutions to legal problems. Evidence from “the fruit of the poisonous tree” or the product of a coerced confession can be discarded by a judge with the proper motion. With prosecutorial misconduct, on the other hand, an unconstitutional use of peremptory challenges usually results in a reversal or dismissal of charges. It is difficult to identify and counteract these issues because improper peremptory challenges are one of the subjects of law that take intent into consideration.
The idea of “unconstitutional jury selection” is founded in the Equal Protection Clause of the Fourteenth Amendment, which applies due process to the states. The Equal Protection Clause provides that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” When the Court reviews issues on improper peremptory challenges, justices look to the Equal Protection Clause and consider its interpretation of the law to determine how it applies to cases before the Court.
To resolve the issue of prosecutorial misconduct and improper peremptory challenges, the Supreme Court decided Batson v. Kentucky. This landmark case began to remedy the problem of racial discrimination that occurs during jury selection. In Batson, the prosecutor used four peremptory strikes to excuse all of the black prospective jurors. The defendant was also black. The court held in Batson that, under the Equal Protection clause, prospective jurors cannot be dismissed for reasons based solely on race. Further, although prosecutors are entitled to challenges without cause, a defendant is entitled to jury selection that is free from racial prejudice. It is unconstitutional for a juror to be struck when the sole reason of being struck is belonging to the same race as the defendant.
The Batson test is still used when there is a claim alleging discriminatory or improper peremptory strikes. In 2019, the Supreme Court used the Batson test to decide Flowers v. Mississippi, one of the more recent cases that revolve around prosecutorial misconduct, jury selection, and racial discrimination. The Supreme Court held that, in Flowers’ sixth trial, the state prosecutor committed a Batson violation during jury selection.
When using the Batson test, the court examined the totality of the circumstances to reach its holding, including the prosecutor’s history, patterns of discrimination, time spent on each juror during selection, and reasoning for dismissal. After reviewing trial transcripts, the court discovered a clear pattern of discrimination. The prosecutor for Flowers’ first four trials attempted to strike every black prospective juror and was found guilty of Batson violations twice prior to Flowers’ sixth trial. Further, during jury selection, there were five black prospective jurors and eleven white prospective jurors. The prosecutor asked the black jurors one hundred and forty-five questions; he asked the white prospective jurors eleven questions. Because the prosecutor’s pattern of discrimination was so egregious, the Supreme Court affirmed the alleged Batson violation, and remanded the case for a trial consistent with their ruling. Flowers was an indication to the Court that the Batson test was not preventing the type of discrimination it was intended to prevent. Curtis Flowers’ case is an example of the ever-present racial biases in the courtroom and the struggle of obtaining justice for black defendants.
Some courts have gone one step further in preventing racial biases from tainting a jury pool. In 2018, the Washington Supreme Court expanded on the Batson test. The Court held that explicit racial discrimination was prohibited during voir dire and jury selection, per the Batson test, but extended that prohibition to include “implicit, institutional, and unconscious” racial biases. The test created by the Washington Supreme Court was that of the “objective observer”. If it is clear objectively that improper peremptory challenges have been used in the process of juror selection, that peremptory challenge will not be upheld within the state of Washington.
Although our criminal justice system has made lengthy strides forward in the last few decades, there is still much work to be done. To fix the problem of predominantly white juries and prosecutorial misconduct, implicit bias should be prohibited in peremptory challenges nationwide. Further, juries need to be diversified to create more fair and just convictions for black defendants in criminal trials.
 Rob McDuff, Curtis Flowers: Press Release Dismissal Final 9 4 20, (Sep. 4, 2020) https://features.apmreports.org/documents/?document=7203814-Curtis-Flowers-Press-Release-Dismissal-Final-9-4.  Janell Ross, How big of a difference does an all-white jury make? A leading expert explains., (May 30, 2016) https://www.washingtonpost.com/news/the-fix/wp/2016/05/30/how-big-a-difference-does-an-all-white-jury-make-a-leading-expert-explains/.  William J. Bowers, Benjamin D. Steiner, Marla Sandys, Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, 3 J. of Const. L. 174-274 (2001).  Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U. L.Q. 713 (1999).  U.S. Const. Amend. VI; See also, U. S. Const. amend. XIV.  Batson v. Kentucky, 476 U.S. 79 (1986).  Flowers v. Mississippi, 139 S. Ct. 2228 (2019).  New Rule Addresses Failings of U.S. Supreme Court Decision (April 9, 2018) https://www.aclu.org/press-releases/washington-supreme-court-first-nation-adopt-rule-reduce-implicit-racial-bias-jury.