In The Dark - S2 E13: Oral Arguments

Episode Date: March 26, 2019

After nearly nine years of appeals of his sixth trial, Curtis Flowers finally had his case argued before the U.S. Supreme Court. At issue was whether DA Doug Evans tried to keep African-Americans off the jury in the 2010 trial. Flowers wasn't at the Supreme Court -- he remains on death row in Mississippi -- but the In the Dark team was. This is what we saw.  Learn about your ad choices: dovetail.prx.org/ad-choices

Previously on In the Dark. The United States Supreme Court has granted Curtis Flowers petition for review. The court will determine whether there was racial bias on. Now it is unconstitutional to strike a prospective juror on account of race. So the prosecution. No doubt he's trying to get rid of all the black folks. That's exactly what he's trying to do. He just told me that, you know, I was under arrest, you know,

and they had the police come and put handcuffs on me and take me to jail, you know. Right there from the courtroom? Yeah. Did all of these guys agree on this? They asked a lot of questions. All kinds of questions. They don't say why. They don't say why. They just say you can go.

Group 9 passengers are walking aboard Z14 to D.C. This is In the Dark, an investigative podcast by APM Reports. I'm Madeline Barron. This season is about the case of Curtis Flowers, a black man from a small town in Mississippi who spent the past 22 years fighting for his life, and a white prosecutor who spent that same time trying just as hard to execute him. Today we go to Washington, D.C., to the nation's highest court, to hear oral arguments in the case of Curtis Flowers v. Mississippi. At the center of all of this is a question. Did District Attorney Doug Evans violate the Constitution in Curtis' latest trial, the sixth one?

Did he strike black people from that jury because of their race? If the Supreme Court finds that the answer is yes, then it will overturn Curtis' conviction and death sentence. Okay, we're here in the Supreme Court. Let's do it. March 20th. We got to the Supreme Court around 6 in the morning. It was still dark out, and the court building was all lit up.

Already there was a long line of people that curved down the block and around the corner. People waiting to get in to watch oral arguments. Is this the front of the line? This is the beginning of the line. The end of it is all the way around there, which they're not going to make it. I've been here since midnight. Are you serious? Yeah.

My dad here flew from Japan. He flew from Japan to see this. Wow. Well, he wouldn't. Why not fly from Japan so he could come out here at midnight and sit in the 20 degree temperatures? This is great. I figured I was going to come early. I might as well come really early.

Alex Bransford. Alex Bransford is a law student. And one of his professors is Sherry Johnson, the lawyer for Curtis, who is going to be arguing in front of the court today. I texted her at 1246. I sent her a picture of me lying on the ground with the Supreme Court behind me. And I said, I'm number two in line to see you. And I'm actually mortified that I did that because I don't know if I woke her up. It's a big deal. Yeah, she, yeah, I mean, it feels like you can tell she knows it's a big deal. She, it's, I deal. You see this person who's so intimidating and seems to know everything and see her act a little bit nervous.

It's kind of humbling. All right, we're going to go walk this line. So how long have you been in line? Since four. My cousin came with me, and he's the one that's doing the coffee runs. Came from Massachusetts. Massachusetts? Yeah.

What made you want to come out today? Just the injustice of it all. Like, come on. It's crazy. When do they say stop? What did you bring today? What's your setup? I just brought a chair because I knew it was going to be a while.

A couple of hand warmers, a battery pack, earphones and a blanket to keep warm. My feet are cold, that's it. But other than that, I feel pretty good. Yeah. When we got to the Supreme Court, there were already more than 100 people in line. And more people kept showing up.

Hundreds of people. More than 400 in all. So the sun is out now, sort of. The line is long. A lot of these people are not getting in. I would say most people are not getting in. Do you think you're going to get in? I don't know.

I mean, you know this is a podcast line, right? So I was here for McCoy against Louisiana last January. I was here at five in the morning, so 20 minutes later than I got here today. And I was number two. There's no question this is more. A teenage girl named Lily and her father were holding signs. So there's a picture of Curtis and then under the picture it says free Curtis so yeah my dad made it the other day and so we decided to bring it up we also made t-shirts that also say free Curtis so you know give it out to anyone that wants one I'm wearing one so what made you want to make the shirts um well I've been writing to Curtis

since like June and when you guys announced the trial would Well, I've been writing to Curtis since like June. And when you guys announced the trial would be here, I was like, oh, well, you know, I feel like I want to, you know, show my support for him because he can't be here. So what do you think is going to happen? Um, I don't really know. Honestly, I mean, it seems really egregiously wrong. And so I hope that they recognize that. I am going to be watching the questioning from Justices Roberts and Kavanaugh. I think those two have been the swing votes in some of the cases that have come out recently with them siding with the liberals. What do you hope will happen?

Like everybody else, that the court will decide by June to overturn his conviction. Hopefully. I'm optimistic. Hey, Tucker. While we were outside, we ran into Tucker Carrington, one of the lawyers working on Curtis' post-conviction. Hey, y'all. How's it going? Good. Nice to see you. How's it going?

I'm called out here. How are you feeling? Good. I'm feeling good. I think it will be all right. That's what I'm hoping. One way or the other, we'll win this case somehow. Do you think you'll win it here? I'm hoping that we win it here. It'd be easier that way. But I, you know, I feel confident. One way or the other, one of these days. but I feel confident, one way or the other, one of these days. Since the press is starting to go in, we're going to go in.

Okay. All right. Samara and I had press passes, so we didn't have to wait in line. A little before 10 a.m., we took our seats inside the court, in the press area, off to one side. The room where the Supreme Court hears cases is small. It's all one level. There are floor-to-ceiling windows on two sides. Up at the front, there are nine high-backed black leather chairs. And behind them, four big marble pillars and thick red velvet curtains with gold fringe, and an American flag on either side. The seats in the audience filled up right away. Maybe about 250 people were there.

Once we'd all sat down, it wasn't long before a buzzer went off, and two people shouted, Oye, oye. And all of a sudden, the nine justices were there. They hadn't filed in. They'd just emerged all at once from behind openings in the curtains. There was a chief Justice, John Roberts. He sat down in the middle seat. There were the more liberal justices, Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg. When Justice Ginsburg sat down, her head was so low,

I could only see the part in her hair. And there were the more conservative justices, Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch. I could only see the part in her hair. And there were the more conservative justices. Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch. The courtroom was so small that from where I was sitting was probably no more than 40 feet from Justice Gorsuch. Chief Justice Roberts spoke first. We'll hear an argument this morning in case 179572,

Flowers v. Mississippi. Curtis Flowers wasn't at the hearing. Neither was DA Doug Evans. Curtis was being represented at the Supreme Court by a lawyer from New York named Sherry Johnson. She's a law professor and the assistant director of the Cornell Death Penalty Project. Miss Johnson. Sherry Johnson approached the podium. She had a precise manner about her. Her posture was straight. She didn't move around a lot. She looked, in a word, composed. Mr. Chief Justice, and may it please the court,

the only plausible interpretation of all of the evidence viewed cumulatively is that Doug Evans began jury selection in Flowers 6 with an unconstitutional end in mind to seat as few African-American jurors as he could. The numbers alone are striking. In the first four trials, Mr. Evans exercised 36 peremptory challenges, all of them against African-American jurors. In the sixth trial, he exercised five out of six of his challenges against African-American jurors. If we look at the numbers regarding his questioning, they are likewise stark.

He asked of the struck African-American jurors an average of 29 questions. He asked of the seated white jurors an average of 1.1 questions. But these numbers do not stand alone. Mr. Evans was twice found to have discriminated on the basis of race in the exercise of his peremptory challenges against African-American defendants in trials of the same case against the same defendant. Here, Sherry Johnson was referring to the two times Doug Evans had been caught striking Black prospective jurors because of their race in Curtis's earlier trials. It's called a Batson violation. It's named after a Supreme Court case called Batson v. Kentucky.

Curtis Flowers' third conviction was actually overturned because Doug Evans committed a Batson violation. There is no one who has a record of discrimination, adjudicated discrimination, like that of Mr. Evans. Lawyers who argue before the court rarely get to talk long without being interrupted with a question. And that's exactly what happened with Curtis's lawyer. After Sherry Johnson laid out the main points of her case, one of the more conservative justices, Justice Alito, jumped in. The history of the case prior to this trial is very troubling, and you've summarized that, and it is cause for concern, and it's certainly relevant to

the decision that ultimately has to be made in the case. But Justice Alito didn't want to talk about the bigger theme of history. He wanted to talk about the details of what had happened in jury selection in the sixth trial. But if we were, I'm not suggesting that this is the way it should be analyzed. This is not the way it should be analyzed. But if we were to disregard everything that happened before this trial, and we looked at the strikes of the black prospective jurors as we would in any other Batson case. Do you think you'd have much chance of winning? The evidence still is clear and convincing that Mr. Evans acted with discriminatory motivation in this case, even if we set aside his history and the reasons that he was unwilling to tell the truth in previous cases.

If we look at the jurors in question one by one, there are aspects that I think would cause any prosecutor anywhere to want to get that jury, that juror off the jury. Justice Alito kept going, and he was being pretty tough on Curtis's lawyer. He was saying maybe Doug Evans did have valid reasons to strike those five Black prospective jurors in the sixth trial, reasons that didn't have anything to do with race. There's a juror who said that she couldn't view the evidence objectively. She couldn't make a decision based just on the evidence. There's one who said that she, because of her acquaintance with members of the Flowers family, she would

lean toward the defendant. Another one who admitted that she made a false statement on her juror questionnaire because she'd say anything to get off the jury. Do you think those are bats in claims that would likely succeed if this troubling history had not preceded this case? This court has demanded a sensitive inquiry into all of the circumstances that prove racial discrimination. And again, even setting aside his history, there are many circumstances here that suggest racial motivation. In her briefs to the Supreme Court, Johnson told the court that Doug Evans treated Black jurors differently from white jurors. She said Evans asked Black jurors more questions,

a lot more questions. There's a phrase for this, disparate questioning. And the court in earlier cases has found that disparate questioning can be evidence of racial discrimination. The thinking is that if you're a prosecutor and you're looking to strike Black people from your jury, one way to do it and get away with it is to just ask Black people a lot of questions. Because if you ask potential jurors enough questions, eventually they'll say something that you could use to strike them. And can I ask you about the disparate questioning? This is Justice Elena Kagan. She was appointed by President Obama.

Because you referred to something which struck me as I read through all of this. This is, unlike some bats in cases you see, it's a very small town where everybody knows everybody, apparently, or many people know many people. And it's a largely segregated town where you might think that African Americans knew more African Americans than they would whites or vice versa. So does that account for some of the differential questioning? In other words, just sort of looking at the environment and saying, I have to push more on whether X knew Y, because given the circumstances of the town, X might very well have known Y. The Mississippi Supreme Court said that it accounted for some of the differential questioning, and I think that's correct. There are more African-American jurors who report relationships

with defense witnesses or the defense family members. But there are five white jurors who report such relationships and whom the prosecutor did not ask questions about those relationships. Like Larry Blalock, a white man who was called for jury duty in Curtis's latest trial. Blalock knew a lot of people involved in the Flowers case. He knew victims and witnesses. He was good friends with the DA's lead investigator. And he had a cousin who committed murder and had been prosecuted by Doug Evans. Blalock told us he figured he'd be struck for sure. And yet, he ended up on the jury. Blalock thought that was odd. And so did Justice Sotomayor.

I found it strange, or unusual, I should say, not strange, unusual, that there were some white jurors who had people accused of crimes in jail, relatives accused of crimes in jails. Were there any questions about how that affected those white jurors? No, there were no questions about that at all. If the Supreme Court is going to find in Curtis's favor, they need to find that at least one of the five African Americans struck from the jury in Curtis's sixth trial was struck because of race. The court doesn't need to find that all five black prospective jurors

were struck unconstitutionally. Even just one juror would be enough. So Justice Alito asked Sherry Johnson what her strongest strike was. In other words, the one that she thought was the most obviously egregious. What is your strongest strike? I think the most, the clearest case is that of Carolyn Wright. Carolyn Wright was a Black woman who was called for jury duty in trial six. In many ways, Wright seemed to be a good juror for the prosecution. She'd written on her jury questionnaire that she was strongly in favor of the death penalty. She had an uncle who worked as a prison guard and had been the victim of a

violent crime. But Doug Evans struck Carolyn Wright from the jury. When he was asked for his reasons, Evans said he struck Carolyn Wright because she'd been sued by Tardy Furniture after the murders for an unpaid bill. Did he even ask Ms. Wright how she felt about that suit and whether it would affect her in this case? That's Justice Sotomayor. In fact, she was asked about the suit, and when she was asked about the suit, what she said is that she had paid the debt and that she had no ill will toward the Tardis. Doug Evans also said he struck Carolyn Wright because she worked with Curtis's father at Walmart. But isn't it true she also worked with the defendant's father? This is Justice Alito.

She worked in the same location as the defendant's father. She worked in the same store. She worked in the same store. The world's smallest Walmart. That's what the trial court described it as. But it is important to notice that when she was asked, does he still work there, she didn't even know if he still worked there. Justice Sotomayor was also interested in Carolyn Wright, but she took it a step further. She wanted to compare Carolyn Wright with another woman in the jury pool.

She wanted to compare Carolyn Wright with another woman in the jury pool. Compare her with Pamela Chastain, though that comparison is the one that I'm most interested in. Pamela Chastain was a white woman who was called for jury duty in Flowers' sixth trial. And Chastain wasn't struck by the prosecution. Pamela Chastain got a lot of attention from the justices in oral arguments. And the reason for that was, in some ways, she didn't seem all that different from Carolyn Wright, the Black juror who was struck. Chastin also knew the Flowers family, as Curtis's lawyer explained to the court. Juror Chastin worked as a teller in a bank where all five of them came.

And she said that she knew the father as well. Yes, she knew the father and the mother and two sisters and a brother. So white juror Pamela Chasteen knew the Flowers from helping them at the bank where she worked. And the black juror, Carolyn Wright, who was struck, knew Curtis's father, Archie Flowers, from working at the same Walmart. Justice Ginsburg spoke up. That relationship of a bank teller to someone who comes to make a deposit is different from someone who is a co-worker. And it would encounter someone in the work setting on a daily basis.

would encounter someone in the work setting on a daily basis? It is a different relationship, or it could be a very different relationship. We can't actually even know the closeness of either relationship unless there was inquiry. But Doug Evans did not make that kind of inquiry. Indeed, what he said to Gerard Chastain is, and that was a purely professional relationship. He didn't ask whether she had a close relationship, whether she was worried. He instead presumed, reassured everyone that she

All the questions. During oral arguments, each side gets 30 minutes to talk, including the questions from the justices. It wasn't until about halfway through Curtis's lawyer's time that the chief justice, John Roberts, wasn't until about halfway through Curtis's lawyer's time that the Chief Justice, John Roberts, asked his first question. This was the moment everyone was waiting for, to see if Chief Justice Roberts would give any kind of clue as to how he might vote. Because if Curtis was going to win, he would need the vote of at least one conservative justice. And the Chief Justice, based on his record, seemed like he might be the best bet. I mean, of course, as my colleagues have recognized, the case is unusual because you have the extensive history,

and I think that's probably why the case is here for review. And I'm interested, because obviously the rule we adopt will apply in other cases, how far your argument that we need to look at the past history is pertinent. What Chief Justice Roberts is getting at is that the lower courts in this country look to the Supreme Court for guidance on how to make decisions. So if what the court says in the Flowers case isn't clear, that could create a lot of confusion. could create a lot of confusion. If the prosecutor had had one Batson violation in his 30-year career 20 years ago, is that something that should be brought out and pertinent in the assessment of the current Batson challenges? Chief Justice Roberts was saying it's clear the history matters.

The question is, how much? Curtis's lawyer, Sherry Johnson, told Chief Justice Roberts that in his hypothetical, that kind of really old Batson violation would be worth considering, but it wouldn't be as relevant as the history in Curtis's case, where the same prosecutor had committed Batson violations more than once

across multiple trials in the same case. So I think when we conduct a consensitive inquiry, we look, as we would in a criminal case, we look at how recent a fabrication has been, whether it's on a relatively similar matter, whether the person has the same motive. So a case that occurred 30 years ago would be very different in terms of motive.

It also would be quite different in terms of the established law of this court. So someone who violates Batson before it's announced or someone who violates Batson immediately thereafter, that's less probative than someone who has done so repeatedly. MR. So what is the rule you would have us adopt as a general rule, not just in a particular case as extreme as this one? The general rule is a rule that you have already adopted. Johnson was telling the court that they didn't need to create a new rule.

They didn't need to announce some big shift in legal interpretation. All they had to do was correctly apply Batson, a rule they already had. And it makes sense that Curtis's lawyer would say this, because her job isn't to rewrite the law, it's to win the case for Curtis. And the easiest way to do that is to say, you don't need to create a new rule to overturn this conviction. The law is already clear.

All you have to do is apply it. With the court's permission, I will reserve the rest of my time for rebuttal. Thank you, counsel. After the break, the state takes its turn. Hi, this is David Remnick, and I'm pleased to share the news that I'm Not a Robot, a live-action short film from the New Yorker's Screening Room series, has been shortlisted for the Academy Awards.

This thought-provoking film grapples with questions that we can all relate to about identity and technology and what it means to be human in an increasingly digital world. I encourage you to watch I'm Not a Robot, along with our full slate of documentary and narrative films, at newyorker.com slash video. of films at newyorker.com slash video. Now it was the state's turn. The state was being represented by a man named Jason Davis. He's a lawyer from the Mississippi Attorney General's office. He's not the Attorney General himself. That man's name is Jim Hood. He's actually running for governor right now in Mississippi as a Democrat. Jason Davis got up and stood at the podium. He's a tall guy, well over six feet, but as he stood at the podium, he slumped forward a Democrat. Jason Davis got up and stood at the podium. He's a tall guy, well over six feet, but as he stood at the podium, he slumped forward a bit.

Mr. Chief Justice, may it please the court. Right away, Jason Davis conceded a pretty big point. The history in this case is troubling, but the history is confined to this case, and as Mr. Chief Justice pointed out, it is unusual. This is the sixth trial in this small town, a small town of approximately 5,000 individuals. Davis started to address the question of the role history should play in the case. If we disengage this troubling history, and I agree, I'm not suggesting that, as Justice Alito said, however, if we take that out of the case, we don't have any taints. Could I just ask you a question of Mississippi law?

Right away, Justice Alito had a question, and he looked frustrated when he asked it. Could the Attorney General have said, you know, enough already? We're going to send one of our own people to try this case, preferably in a different county where so many people don't know so many other people. Could he have done that? Statutorily, the attorney general's office is allowed to assist, is allowed to take over, but only upon request by that district attorney. So that was not an option in this case.

We were not so requested. Jason Davis had barely begun speaking, and already Justice Alito, one of the court's most conservative justices, was jumping in, wanting to know why no one took the case away from the DA, Doug Evans. Things weren't going well for the state.

And then Justice Kavanaugh spoke. He's another one of the court's more conservative justices. You said if we take the history out of the case, we can't take the history out of the case. Oh, no, Justice Kavanaugh. I'm not saying that's what I was saying exactly. 42, 42 potential African-Americans and 41 are stricken, right? Yes, that is correct. That's relevant, correct? That is relevant, yes, Your Honor. As this court has held in Miller Ale, history is part of the consideration. This was a key moment. Justice Kavanaugh is the newest justice on the court, so his positions aren't as well staked out as a lot of the other members.

And what he was saying seemed favorable to Curtis. Justice Kavanaugh was clearly interested in talking about the history of the case and the importance of that history. Justice Kavanaugh pointed out that DA Doug Evans struck almost every black juror he could. Although, and this is just an aside, our analysis found slightly different numbers than the ones Justice Kavanaugh is citing. We found that Doug Evans actually struck 41 of the 47 black jurors our analysis found slightly different numbers than the ones Justice Kavanaugh is citing. We found that Doug Evans actually struck 41 of the 47 black jurors he had the power to strike.

Justice Kagan, one of the more liberal justices, picked up on what Justice Kavanaugh was saying. So you agree that it's not only the adjudicated bats and violations that are relevant, but also the number of strikes such as Justice Kavanaugh listed? I do with qualification. The strikes were unique. The strikes in this case are supported in the record. Each of the jurors that were struck either worked with a relative, were related, or knew intimately family members, the defendant or his family members, up to and including one juror who lied on her questionnaire and then admitted to lying on the stand. The argument wasn't going well for the state, but up until this point, at least the mood in the room was pretty restrained. People weren't showing much reaction to what the lawyers or the justices were saying.

Everyone was just listening. But if I could point to a moment when that shifted irreversibly, it would be this moment right here. And this is one of the issues with this case is that each one of these strikes that we have... Jason Davis was answering a question about the jury strikes in Trial 6 when one of the court's more liberal justices, Justice Breyer, interrupted him. We don't have one single reason. We have... All right, let's look at them. But you do have history. Trial one, five black juror possibles. He uses peremptories, strikes all five. Trial two, five jack jurors possible. Uses all five, strikes all five blacks. Okay. Trial number three, there were 17 black possible. He uses only 15 this time. Why? Because he ran out of peremptories. He only had 15.

All right. Fourth trial, 16 black. He only struck 11. That's because he only had 11 peremptories, perhaps. All right. Now we come to this trial with that background. Okay. And I don't think it's going to take much once you have that background. It wasn't a surprise that Justice Breyer would say something like this, given that he is one of the more liberal justices on the court. But it had an effect. People started stirring in their seats and glancing at each other, like something was about to happen.

What Justice Breyer seemed to be saying was, look, given all this history, it's not going to be hard to convince me that the prosecutor violated the Constitution in the latest trial. And Justice Breyer kept going, right into the facts of jury selection in the sixth trial, and back to the jurors, Carolyn Wright and Pamela Chastain. So now let's look at one black juror, one white one, potential. Okay, let's call them one and two. Both are women. Both are in their mid-40s. Both have some college education. Both strongly favor the death penalty. Now,

the potential black actually has a brother serving as a prison guard. Now, you would have thought that might have favored the prosecution in the prosecutor's mind. Okay, so that's one difference. I don't think that cuts in your favor. Then, have they ever had anybody arrested? No, neither has. And do they know people in the case? Yeah. They each know something over 30 people. Same, same, same, same. Now, is there a connection with the Flowers family? Well, the black juror did, in fact, possibly work at some distance, we don't know quite what, with the father at Walmart, and the white one knew his father, mother, sister, cousin, through her work as a bank teller. And then we get the last thing, which the Mississippi Supreme Court thought was so crucial, is that the black potential juror was sued for overdue credit,

and maybe she paid the garnishment of $30. I don't know. But the white juror had been a friend of the victim's daughter in high school. Okay, there we have potential black, potential white, and we have the whole background. Looking at that, you tell me, what was the difference as to why he could strike? Is that background Carolyn Wright, the potential African-American juror who was number four, and Pamela Chesterton, the potential white American juror who was number 17. What's the difference? What's the difference given all those similarities? Juror 14, Carolyn Wright, was struck because she was sued by Tardy. Yeah. Juror 14, Carolyn Wright, worked with the defendant's father, Archie, at Walmart. Yep. The distinction would be...

Wait, you didn't add that juror number 17 had been a friend of the victim's daughter in high school and also knew Flower's father, mother, sister, and a cousin through her work as a teller at the bank. as a teller at the bank. Wright's relationship with the father was a work relationship, an employee-employee relationship. Chastain was a bank teller, admitted that she just saw them coming in through the bank. So this was an employee and customer relationship, which the Mississippi Supreme Court made a distinction. In other words, it was closer, the first relationship. And the record, when I read that, will bear out that the first one really was a closer relation than seeing them every week or whatever as a bank teller. Will it say that? I don't think it will because I think they said, well, how closely physically did you work with the father? And there was no answer to

that question. The record would bear out that the district attorney only struck those individuals that worked with members of his family, and that was consistent. Okay, so that's the reason. The distinction is when I go back in the record, I have to say, knowing Flowers' father, mother, sister, cousin through the work as a bank teller is not a good reason for striking somebody. But working with Flowers' father at some unknown distance at Walmart is. And that's the crucial difference I will find. There is a difference there, but is there anything else?

Because after all, I have the history, plus now I've narrowed it down. That's why I asked. I've narrowed it down to that being the difference. Again, Justice Breyer, I would also say that one of the differing things was that she was sued by Tardy, which was a theme with at least one other. And so I also should look at that and then decide whether that really is more significant than the fact that number 17 was friends with the victim's daughter in high school. You know, sometimes you're friends with your high school pals you don't forget.

So those are the two things I should look at. Is there anything else? I think that's enough, Your Honor. Well, I do too. Many respects, Mr. Davis. Jason Davis was in a tough position. He couldn't dispute the record in the case, that Doug Evans had been found twice to have violated the Constitution

in jury selection in the earlier Flowers trials. That had already been decided. And Jason Davis knew that the Supreme Court had already found in earlier cases that the history of a prosecutor matters. So he didn't really have much choice but to concede that Evans had the history of a prosecutor matters. So he didn't really have much choice but to concede that Evans had a history of discrimination and that that history matters. Perhaps sensing weakness in the state's case, the other justices pounced. Justice Sotomayor brought up other misconduct on the part of Doug Evans in the Flowers trials, misconduct that the

Mississippi Supreme Court had cited when it overturned Curtis's previous convictions. Weren't there two cases that were overturned or in which prosecutorial misconduct, at least the first, was overturned on prosecutorial misconduct? They didn't even reach the Batson challenge. Yes, Your Honor. But doesn't that tell you something about this man's passion for this case? I don't even need to call it anything else, but doesn't that tell you how you should be looking at this case? I can't speak to his passion for the case, Your Honor. I can speak to

his pursuit of conviction in this in the sense of the six trials in which they were... But he didn't, I understand he didn't ask the Attorney General to step in, which he could have, to prosecute the case. Justice Sotomayor is a former prosecutor. So is Justice Alito. And both of them seemed incredulous that Doug Evans was still allowed to try this case. They wanted to know whether the AG's office had ever tried to intervene. Here's Justice Alito. What would you 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. That you just cannot, in light of the history, you just can't untangle what happened before

from the particular strikes in this case. But again, Your Honor, hindsight's 20-20. I was not involved in any consideration on that. Had I been, it might have been a suggestion of mine that that be the case, but that wasn't. Experts who had gamed out what might happen in oral arguments had told us that the justice to watch would be the chief justice, John Roberts. That Roberts, of all the conservative justices, would be the one who'd be the most likely to say something that would indicate some

sign of support for Curtis Flowers. But it wasn't Chief Justice Roberts who did that. It was the newest justice on the court, Brett Kavanaugh. In Batson, we held that a prosecutor cannot state merely that he challenged jurors in the defendant's case of the defendant race, on the assumption or his intuitive judgment that they would be partial to the defendant because of their shared race. That was really the critical sentence in Batson, and the dissent disagreed with that, the critical change. You can't just assume that someone's going to be favorable to someone because they share the same race. And then, Justice Kavanaugh asked what was arguably one of the toughest questions the state got.

And when you look at the 41 out of 42, how do you look at that and not come away with thinking what was going on there was what the dissent in Batson said was permissible, was going on there was what the dissent in Batson said was permissible, but the majority said was not permissible, that there's a stereotype that you're just going to favor someone because they're of the same race as the defendant. Respectfully, in this case, in no way agree that there was some prior determination made by the district attorney that because of this person's race, they were not going to be favorable. Again, this case has spanned some 23 years now in this small community. One of the inherent problems... I guess I don't understand how you can say this. Justice Kagan interrupted. In this case, there were three adjudicated Batson violations.

Two. Okay, two. Two. The Flowers three and Flowers two both had adjudicated Batson issues. That the trial court was aware of that was evident. The same trial judge presided over the fifth trial. Jason Davis was talking about the trial judge, Judge Joey Loper. This is Justice Sotomayor. Did you just say that the same judge who tried the fifth trial also tried the sixth trial? Yes, Your Honor. And wasn't he the judge that ordered Mr. Evans to prosecute the sole holdout juror in the fifth trial? That juror was James Bibbs, a Black man who'd held out against voting for guilt in the fifth trial. After the trial ended in a hung jury, he was arrested for perjury on Judge Loper's

order and let out of the courtroom in handcuffs. The case against Bibbs was later transferred to the AG's office and then dismissed. The legal term for this is null prost. And didn't Mr. Evans do that? And the attorney general take over the case and say there was no basis for that prosecution? There were two jurors that were bound over to the grand jury on the basis of perjury. One pleaded guilty to that, and the other was Nall Prost. Again, and that was handled by the Attorney General's office, not my division, but another. But I think the Attorney General Nall Prost, because there was no basis for that prosecution. I don't know that there was not a basis.

I just know that it was Noel Prost. Toward the end of the state's time, Justice Brett Kavanaugh looked out at the audience assembled in the room, and then he turned back to Jason Davis. Part of Batson was about confidence of the community and the fairness of the criminal justice system, right? Yes, Your Honor. And that was against a backdrop of a lot of decades of all-white juries convicting black defendants.

Swain said, let's put a stop to that, but really didn't give the tools for eradicating discrimination. So he had another 21 years of that until Batson. And then Batson said, we're going to give you the tools to eradicate that so that the, not just for the fairness to the defendant and to the juror, but the community has confidence in the fairness of the system. And can you say, as you sit here today, confidently you have confidence in the, how this all transpired in this case? I have confidence in this record, Justice Kavanaugh. I have confidence in the strikes that this district attorney made based on the four corners of this record. I have confidence that if

reviewed with an eye towards what actually transpired, it supports the Mississippi Supreme Court's decision in this case. That I have confidence in. Thank you. It was a devastating conclusion to the state's argument. The newest conservative justice on the court appeared to be siding with Curtis Flowers. If Curtis were to get Justice Kavanaugh's vote, plus the votes from at least the four liberal justices,

those five votes alone would be enough to overturn his conviction. And it seemed, based on the oral arguments, it was possible that Curtis could also get the votes of some of the other conservative justices. Curtis's lawyer, Sherry Johnson, had reserved a few minutes of her time for rebuttal. Thank you, counsel. You have four minutes remaining, Ms. Johnson. But in an apparent show of confidence... Unless this court has further questions, I will waive rebuttal. A few seconds passed, and then something happened that no one in the room was expecting.

I'm Ms. Johnson. It was Justice Clarence Thomas. He was asking a question, something he hadn't done since 2016. This was only the second question Justice Thomas had asked in oral arguments in the past 13 years. It seemed as though everyone in the room rose out of their chairs a bit to make sure that what we were all hearing was actually happening, a question from one of the most silent justices in the court's history. Would you kind enough tell me whether or not you exercise any peremptories? A question from one of the most silent justices in the court's history.

Justice Thomas wanted to know not about the state strikes, but about the strikes by the defense in Curtis's latest trial. And what was the race of the jurors struck there? She only exercised peremptories against white jurors. But I would add that her motivation is not the question here. The question is the motivation of Doug Evans. At this point, Justice Sotomayor jumped in, apparently to help Curtis's lawyer explain why the defense only struck white people from the jury. She didn't have any black jurors to exercise preemptories against except the first one. Except the first one. Curtis's defense used strikes against white people because by the time it was their turn to make their strikes, the district attorney, Doug Evans,

had already struck almost all the Black people from the jury. There was only one Black prospective juror for the defense to strike. Everyone else was white. Sherry Johnson wrapped up. When all of the evidence in this case is considered, just as in Foster v. Chapman, the conclusion that race was a substantial part of Evans' motivation is inescapable, and the Mississippi Supreme Court's conclusion to the contrary is clearly erroneous.

Thank you, counsel. The case is submitted. And with that, oral arguments were over. And with that, oral arguments were over. Outside, people were streaming out of the court and milling around on the plaza out front. Curtis's lawyer, Sherry Johnson, appeared at the top of the courthouse steps. So this is the applause for the defense side. They've all gathered at the top of the courthouse.

Sherry Johnson set up for a quick press conference. I'm Sherry Johnson, S-H-E-R-I. The crowd dispersed. After almost everyone had left, I spotted Jason Davis, the attorney who'd argued for the state. He'd come out of side exit with a few colleagues. We're not answering questions, so go. We're not answering questions, so go. We're not answering questions.

Go on. I'm not. I can't answer questions. Our office doesn't allow it. It has to go through them. There are times I wish I could, but I'm prohibited from doing so. Is this one of those times? Yes, I can't.

They won't allow me. I like my job. So no comment on how you felt? He just said that. I can't. He just said it. Don't ask questions. Just go on. Thank like my job. So no comment on how you felt? He just said that. He just said it. Don't ask questions. Just go on. Thank you. Okay. Doug Evans, the district attorney whose handling of the case had led it to this point, wasn't there. I don't know if Evans followed the arguments or what he

made of them. When we tried to call his office on Wednesday, no one answered. And when we tried to follow up later that week, he never got back to us. So now, we wait. The Supreme Court is expected to announce the decision by the end of June. As soon as it does, we'll bring you a new episode. In the Dark is reported and produced by me, Madeline Barron, senior producer Samara Fremark, producer Natalie Jablonski, associate producer Raymond Tungakar,

and reporters Parker Yesko and Will Kraft. In the Dark is edited by Catherine Winter. Web editors are Dave Mann and Andy Cruz. The editor-in-chief of APM Reports is Chris Worthington. Original music by Gary Meister and Johnny Vince Evans. This episode was mixed by Corey Schreppel. documentary series have been shortlisted for the Academy Awards. And they are Incident, Seat 31, Zoe Zephyr, and Eternal Father. And they all immerse you in the finest cinematic journalism, exploring themes of justice, identity, and the bonds that shape us.

These extraordinary films, which were created by established filmmakers, as well as emerging artists, will inform, challenge, and move you I Encourage you to watch them along with our full slate of documentary and Narrative films at New Yorker comm slash video