In The Dark - S2 E18: The Recusal

Episode Date: January 6, 2020

District Attorney Doug Evans has prosecuted Curtis Flowers for 23 years and six trials. Now he says he's done.  Learn about your ad choices: dovetail.prx.org/ad-choices

I'm Madeline Barron, and this is In the Dark. I'm coming to you today because I have some big news to report about the man who's prosecuted Curtis Flowers for so many years, District Attorney Doug Evans. Since the very first time we spoke with Doug Evans. Hi, Mr. Evans. Can I help you? Hi, I'm Madeline. This is Parker.

He's always insisted on one thing. So are you confident that you have the right person, that Curtis Flowers is guilty? That I will answer definitely. No question at all. No question about his guilt. There never has been. He is guilty, and he deserves to be convicted. And Doug Evans still feels that way. In a document he filed with the court late yesterday, Evans wrote that he remains confident

in the investigation and the jury verdicts. But, Evans wrote in this filing, he wants out of the Flowers case. He's stepping aside. Technically, he's voluntarily recused himself from the case. And that means that after more than two decades of relentlessly prosecuting the case, six opening statements, six closing arguments,

thousands of pages of court transcripts produced and motions filed, Doug Evans and his office are finally done. In his filing to the court, Evans wrote, quote, I have personally prosecuted the defendant in all six of his prior trials. While I remain confident in both the investigation and jury verdicts in this matter, I've come to the conclusion that my continued involvement will prevent the families from obtaining justice and from the defendant being held responsible for his actions. It is for these reasons that I voluntarily recuse my office from further

involvement in the prosecution of the above-styled manner. In that same filing, Evans asked the trial judge, Judge Joey Loper, to appoint the Mississippi Attorney General's office as lead prosecutor in the case. So far, Judge Loper hasn't responded. Evans' filing comes just three weeks after Judge Loper blasted the state at Curtis' bail hearing. Judge Loper was upset that Evans had decided not to show up at the hearing. Evans sent an assistant instead. Evans had decided not to show up at the hearing. Evans sent an assistant instead.

And Judge Loper was frustrated that Evans and his office hadn't responded to a series of motions the defense had filed. Judge Loper told the state that it would, quote, reap the whirlwind if it continued with its, quote, dilatory conduct. District Attorney's Office, William. I can help you. Hi, William. This is Madeline Barron calling. I was wondering if Mr. Evans was in?

No, he's not. Okay. Do you know where would be a good place to reach him? Not here, but he's not here. Okay. Yeah, I just was wanting to talk with him because I just read the filing he made before the court recusing himself from the Flowers case. What's your last name, Madeline? Oh, it's Barron. Barron.

Podcast. I can leave my message, but he's not here right now. All right. Well, how are things going in your office otherwise? Oh, business as usual. I'm from one case to the next. Okay. All right.

Well, I'll try back tomorrow then. All right. Okay. Thank you. Okay. Bye. Bye. We tried back'll try back tomorrow then. All right. Okay. Thank you. Okay. Bye. Bye. We tried back the next day, several times, but always got a busy signal.

I sent Doug Evans an email, but he didn't respond. We also called Curtis's attorney, Rob McDuff, of the Mississippi Center for Justice. So, this is a pretty short filing with the court. And I guess my main question is just what's your reaction? Well, several weeks ago, we filed a motion asking the judge to recuse Doug Evans if he didn't voluntarily recuse himself. Obviously, he has now decided to recuse himself, which I think is the right thing to do at this juncture. He had no business staying on this case, particularly given his record of misconduct over the last six trials. And at this point, there is no reason to continue wasting taxpayer money and putting everyone through a seventh trial.

Curtis Flowers is innocent, and this misguided prosecution, which has been plagued from the beginning by misconduct and racial discrimination, should come to an end 23 years after it began. Have you spoken with Curtis about the news? I have not. I received a text from his sister. As I was reading it and responding to press calls, I received a text from his sister. So they're aware of it as well, but I've not spoken to him on the phone. And have you talked to the AG's office about whether it wants

the case? I mean, I'm not in a position to comment about any conversations I've had with anybody about that. It appears from the filing that Doug Evans has spoken with the attorney general's office and that they have agreed to take the case. So I'm assuming they have. If they haven't, I certainly hope they will take it. And what is next now in this case? Well, I think the next step is for the attorney general to step in and review the case and conduct an independent evaluation, and I think that any independent evaluation will lead to a dismissal. To a dismissal. So this doesn't, in your mind, look like it's headed now for a seventh trial? It certainly shouldn't head to a seventh trial. And so at this point, I think any independent and sensible evaluation of the way, even though there never was a strong case against him.

I guess my only other question is just how is Curtis doing? He's doing very well. I mean, you know, Curtis has left Winona, and he is at an undisclosed location. But, you know, he's doing very well. location. But he's doing very well. And he's pleased to be out of prison. After 23 years, he is happy to be able to spend time with his family, particularly during the holidays. And so he's doing very well. What McDuff told me, that this is a positive development for Curtis, matches what we'd heard months, even years ago at this point,

from other people who work on alleged wrongful convictions. In 2018, I talked with a woman named Nina Morrison. She's a senior litigation counsel at the Innocence Project in New York. We were talking about what was at that point only a far-out hypothetical, what it would mean if Doug Evans stepped aside from the case. That could make all the difference in the world. Nina Morrison told me that a new prosecutor might have different political beliefs or a different view of the criminal justice system.

I guess to me I wonder more about the personal investment in the case. If you're negotiating with someone who has believed in this case so much that he's tried it six times, that person has already been very clear about what they think about the case. And you could understand why they would be reluctant to drop it versus just a new person who might not view the criminal justice system differently or have a different type of politics or something, but they just don't have that same personal investment. Like they're not the person who's tried it six times. And they're not the person who if they drop it now, people are going to say, well, why did you try it to begin with? Right? Yeah, it's, it's, it's always very difficult. I mean, we, the hardest cases that

we've ever had to negotiate, whether it's getting a new trial ordered or getting original charges dismissed, have been the ones where the original trial prosecutor is still in office. When they're gone, you tend to get fresher eyes and a more objective approach. Doesn't mean we always succeed in negotiating, but it's a lot easier. It now seems more likely than not that the Mississippi Attorney General's office will take the case. Then the AG's office would review the file and decide whether to try it again, a seventh trial, or offer Curtis a plea deal, or ask the court to dismiss the charges. Right now, the Attorney General is a man named Jim Hood. He's a Democrat and a former prosecutor. We asked him for comment, and through a spokesperson, he emailed us a statement.

Jim Hood said, quote, Doug Evans has been an honest lawman and prosecutor for as long as I can remember. My personal two bits is the facts are sufficient for the case to be retried. Appellate courts are made up of humans just like us all. In extremely rare cases, I have seen them allow emotions to overcome logic in tough cases. I've spent my entire career believing in our criminal justice system. I know juries get it right 99.9% of the time. A fair jury should resolve this case, one way or another.

End quote. So Jim Hood believes that there's enough evidence to retry the case. But Jim Hood isn't the person who'll be making the decision about what to do with this case if the AG's office gets it. And that's because Jim Hood didn't run for re-election. Instead, he ran for governor and lost. The new attorney general is getting sworn in this Thursday. Her name is Lynn Fitch. She won election this fall. Everybody, it has been a very historical night, and I'm here with the woman of the hour.

She is the first female to be elected to the Attorney General's office in Mississippi, Treasurer Lynn Fitch. Ma'am, congratulations. Thank you so very much. I'm so honored. I'm so humbled that the people of the state of Mississippi... Lynn Fitch is a Republican.

Unlike the outgoing Attorney General, she's never worked as a prosecutor, and she doesn't have a background in criminal law. She's currently the state treasurer. In the days before the election, our reporter Parker Yesko found Lynn Fitch at an event and asked her about the Flowers case. Well, Sony, that's just a case that will have to be evaluated when I get into the office and look at the parameters, as will all cases. You know, anytime an attorney general comes into an office, you now evaluate what cases you have at hand, which ones need to continue to move forward, how do you enhance certain ones, how do you dismiss certain ones. So I'll be looking at all cases when I get into the attorney general's office. We tried to contact Lynn Fitch today, but we weren't able to reach her. Thank you. One person we did manage to speak with was someone with a personal connection to the case,

a woman named Kathy Permenter. She's the mother of Bobo Stewart, the 16-year-old who was shot to death at the furniture store. Her son, had he lived, would now be 39 years old. Our producer Natalie Jablonski talked to her on the phone. Hi, Ms. Permenter? Yes, ma'am. My name's Natalie Jablonski, and I'm a reporter with American Public Media. Oh, yes, ma'am. And I just wanted to give you a call to see if you heard the news that Doug Evans is recusing himself from the Flowers case. I did hear that on the news last night, so yes, ma'am. Oh, okay. So is that how you found out about it?

It is, yes, ma'am. Well, I just wanted to call and see what your reaction to that is And just how you feel about it Not really happy about it at all So, you know, I definitely don't feel good about things for sure I mean, you know, if he thinks that's the best thing for him to do Then I feel like, you know, he's smart enough to know what he should do and should not do.

Does it make me happy? No. I don't know who's going to be in charge now, so, I mean, you know, I always felt like, you know, if I had questions, I could contact their office. And so now I just, you know, I don't know who I contact or if anyone will even talk to me about it. So, you know, I'm hoping somebody will contact us and let us know what it means for the case, if we're going back to trial or not,

or what's going to happen at this point. So do we start back at square one? Do we, you know, I just don't know. Yeah, and it sounds like you didn't get a heads up about it from the DA's office. Mm-mm, I didn't. I had no idea. When was the last time you heard from them? A bail hearing, you know, he didn't show up for that, which, you know, we were all disappointed with. But I didn't know what was going on.

And I did contact his office like the next day just to see if I could get any information, you know, about why it didn't, but I didn't get anything from anybody. Do you still feel like Curtis Flowers is guilty? Oh, yes, ma'am. There's no doubt. There's just no doubt, mama. How would you feel if it was your son? If you had a son and it was your son? Yeah, I can't imagine what you've been through.

Yeah. You know, nobody knows the rest of this, Dana. I mean, this is something that, you know, I don't wish upon anybody to have to ever go through something like this, that their child be taken away from somebody shooting them in the head, you know. My God,

poor child was innocent and just trying to work on a summer job and make you some extra money and goes into work and what happens, you know. So, Natalie asked Kathy Pementer what she hopes will happen next. Well, I just, I mean, I don't really know. You know, when all that came up on the news last night and I saw it, I was just, I'm just like at a dead end myself. I feel like I'm in a dead end and I'm boxed in to where, you know, every time I look around, I can see a wall because I don't know which way to turn or who to go to anymore.

So, you know, yeah, I want justice for my son. Definitely I want justice for my son. Because that's not right. It's just not fair. We'll continue to keep you updated on major developments in the case. Also, I want to say thank you to everyone who supported our work in any way this year. By listening, by telling your friends to listen, by donating money, we really appreciate your support. In the Dark is reported and produced by me, Madeline Barron, senior producer Samara Fremark, producer Natalie Jablonski,

associate producer Raymond Tablonski, 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 Craig Thorson. Hi, this is David Remnick. I'm proud to share the news that three films from the New Yorker 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 newyorker.com slash video.