Race-based jury tactics at issue in appeals court arguments

Civil rights advocates are asking a federal appeals court to revive their lawsuit against a Mississippi prosecutor accused of routinely rejecting Black jurors in criminal cases simply because of their race

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Civil rights advocates asked federal appeals court judges Friday to revive a lawsuit they filed against a Mississippi prosecutor accused of routinely rejecting Black jurors in criminal cases simply because of their race.

District Attorney Doug Evans' jury selection tactics have been under scrutiny for years. His exclusion of Black jurors in one high-profile murder case led to the Supreme Court overturning the conviction of Curtis Flowers in 2019, with Justice Brett Kavanaugh citing a “relentless, determined effort to rid the jury of black individuals.”

Friday's arguments at the 5th U.S. Circuit Court of Appeals in New Orleans involve a lawsuit focused not on a specific case but on the overall practice of using race as a sole reason for rejecting jurors. It was filed in 2019 by leaders of the Attala County branch of the NAACP and four Mississippi voters, including Sharon Young, who was rejected as a jury candidate in one of Flowers’ trials. They asked a federal judge to declare Evans' policy unconstitutional and issue to an injunction preventing Evans and his staff from making race-based jury strikes.

U.S. District Judge Debra Brown, while acknowledging that the plaintiffs' claims against Evans may have merit, dismissed the lawsuit in September 2020. She said the injunction sought would put the federal court in the improper role of conducting an “ongoing audit” of current and future state court proceedings. She also said that those who suspect a prosecutor of race-based jury exclusions have avenues to make challenges in state courts.

Christopher Kemmitt, an attorney for the NAACP Legal Defense Fund, argued Friday that Evans' practice of striking jurors for racial reasons constitutes a barrier to jury service that must be addressed. He also sought to allay concerns that efforts to remedy the situation through federal courts would hamstring individual state court cases.

“We would never seek to intervene in a pending jury selection proceeding,” Kemmitt told the panel of three appellate judges. He echoed arguments in briefs that the state-level opportunities for challenging the race-based jury selection practices are limited, particularly for prospective jurors who want the chance to serve but who are not parties to any particular criminal case.

Arguing to uphold Brown's dismissal, Scott Stewart of the Mississippi attorney general's office never directly addressed whether Evans strikes jurors because of their race, focusing instead on court precedents he said preclude a ruling against Evans in the lawsuit. The injunction sought by the NAACP, he said, is “overreaching and improper.”

It was unclear when the 5th Circuit panel — judges Jennifer Walker Elrod, Leslie Southwick and Gregg Costa — will rule.

Flowers, meanwhile, has filed his own lawsuit against Evans.

Flowers was tried six times after being charged in the 1996 shooting deaths of four people at a furniture store in Winona. He has always maintained his innocence.

The 2019 Supreme Court ruling that led to his freedom came after American Public Media’s “In the Dark” investigated the case. The podcast recorded jailhouse informant Odell Hallmon in 2017 and 2018 recanting his testimony that Flowers had confessed to him. The podcast also presented an analysis finding a long history of racial bias in jury selection by Evans.

In March, a judge ordered Mississippi to pay Flowers $500,000 for wrongful imprisonment — the maximum under a state law that allows up to $50,000 a year for 10 years.