Supreme Court Justice Clarence Thomas broke a three-year silence on the bench when he asked a question Wednesday during oral arguments in a case dealing with race discrimination and juror selection.
A majority of his colleagues raised concerns with the case, in which a white prosecutor won conviction of a black man after excluding black people from juries.
They questioned county prosecutor Doug Evans’s methods across six trials against Curtis Flowers, who was convicted of murdering four people at a furniture store from which he had been fired.
Out of 42 potential black jurors, 41 were stricken.
Flowers says that violated his constitutional right to a fair trial, and is asking that his conviction be overturned.
But Justice Thomas wondered whether the same wasn’t true of Flowers’ defense team.
“What was the race of the jurors struck?” he asked.
“She only exercised peremptories against white jurors,” responded Sheri Johnson, the lawyer arguing the appeal at the high court.
“But I would add that the motive — her motivation is not the question here. The question is the motivation of Doug Evans,” Ms. Johnson said.
Flowers was tried six times. He was convicted the first three, but each was overturned by the Mississippi Supreme Court, in part due to prosecutorial misconduct. The fourth and fifth trials resulted in hung juries. The sixth trial ended with a conviction and Flowers is currently on death row.
The justices were concerned with Mr. Evans’s passion to pursue the prosecution instead of allowing the state attorney general to step in and handle the case after the first few bungles.
“Could we say in this case because of the unusual and really disturbing history, this case just could not have been tried this sixth time by the same prosecutor?” Justice Samuel A. Alito said.
Jason Davis, who argued on behalf of Mississippi, said state law only allows the state attorney general to get involved if the county prosecutor requests assistance.
The justices were also troubled by the number of questions black jurors were asked and the tone Mr. Evans took in questioning them.
“The numbers themselves are staggering, the number of questions that were asked to African-Americans versus whites,” Justice Elena Kagan said.
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