Today, Explained - Tried six times for the same crime

Episode Date: March 20, 2019

Today the Supreme Court hears oral arguments about Curtis Flowers, who has been tried six times for the same crime: a quadruple homicide at a furniture store in Mississippi. Madeleine Baran, host of the “In the Dark” podcast, explains how this case represents a fundamental problem with jury selection in the United States. Learn more about your ad choices. Visit podcastchoices.com/adchoices

A thing I learned today, over 40 million people around the world use an app called Calm to help reduce anxiety and stress and improve their sleep. And you can get 25% off a premium subscription to Calm at calm.com. Calm.com sounds funny. That's C-A-L-M.com. All right, it's Wednesday morning, March 20th. Spring is here, but it's about 40 degrees outside the United States Supreme Court. There's a massive line of people, bigger than usual. I thought I'd ask them what they're standing in line for. Do you have any idea what case you're hearing today?

Yeah, it's Flowers v. Mississippi. I'm actually in a, my senior seminar is about the death penalty, so we studied the case in class. When you listen to the Flowers, you know, what we know about the Flowers case, it's like, if that's not structural racism, I don't know what is. And I read, like, we don't know if he killed four people, apparently. Allegedly, he's killed four people. Been overturned six times or something wild like that. So I guess they're trying to decide. Yeah.

I don't know if it's guiltier or not guiltier, death row or... The question I heard was, did the Mississippi State Supreme Court correctly apply a previous ruling that the U.S. Supreme Court had with respect to jury selection? It's just a shit show is what it is. Yeah. Madeline Barron, you host In the Dark. The second season of your podcast is all about a guy named Curtis Flowers. And his case, as we just heard, is at the Supreme Court today for oral arguments. Who is Curtis Flowers?

Let's start with that. So Curtis Flowers is a black man in Mississippi. He's currently in Parchman Prison on death row. And he grew up in this tiny town in north central Mississippi called Winona. And he was kind of had your average childhood. He, you know, went to school there in public schools. He sung in a gospel group, has a very religious family. And his life was pretty unremarkable until we get to 1996. And what happens then? So in 1996, there is a murder that happens at the furniture store in the town where Curtis lives. And four people are found shot in the head.

They all worked at the store. In any town, this would be a large case, a huge news story. But in this town of Winona, especially so. And right away, the cops, of course, are trying to solve it. There's a problem, though. No one witnessed the shootings. There doesn't seem to be on the face of it any really good evidence to start out with. And so how does this case find Curtis Flowers as a suspect?

So Curtis had worked at the store earlier that summer. He'd only worked there for three days. But the cops narrow in on him very quickly because that very same morning of the murders, the husband of one of the victims tells people that, you know what, Curtis, there's a problem with Curtis as an employee at the store, that he had an attitude problem. And other family members of the victims, and we're talking here about white family members of the victims, and Curtis is black. These white family members of the victims started talking about how Curtis didn't act right in the store. One person told me, Curtis, he made too much eye contact with my wife in the store. Another man told me that Curtis, oddly enough, didn't make enough eye contact with people at the store. And so the cops narrow in on Curtis. Curtis didn't have a criminal record. He didn't have a violent past or anything like that. He didn't own a gun, as far as anyone knew. He's never been found to have owned a gun. But they start building a case against him and they bring him in for questioning that same day. He denies having anything to do with the murders. But the cops keep investigating and they build this case based basically on circumstantial evidence. They charge him and they take him to trial for this murder.

And the prosecutor in this case that indicts Curtis and takes him to trial is a man named Doug Evans. And Doug Evans has been the prosecutor on this case since the beginning. Tell me a bit more about Doug Evans. So he is the elected district attorney for this circuit court area in Mississippi. He's white. He's been reelected every time with no problem. He usually runs unopposed. And he won office in 91 and became the DA in 92 on, you know, very common at that time, a tough on crime message. This is the early 90s. He said, you know, he was going to stand up for victims of crime. He was going to make sure that, you know, crimes

don't go unpunished. He also, when he was running for office, campaigned by speaking in front of some groups that are avowedly white supremacist groups in their thinking. And this is an area of Mississippi that is slightly majority white. And he gets involved in this case from the very beginning. So he is at the furniture store day one. And of course, the people in the town, not just the victims' families, but everyone is looking at Doug Evans and law enforcement to do something about it, you know, find the person who did it and prosecute him. And so what kind of case do they make against Curtis Flowers? So it's a circumstantial case for the most part. So what Doug Evans says is, number one, the motive is that Curtis was angry. Curtis lost his job at the furniture store,

so he went there to kill the store's owner. He says that the way Curtis did that was that Curtis, although he didn't have a gun, he woke up that morning. Curtis walked across town, breaks into a car. He steals a gun. He walks home, leaves his house again, walks to the furniture store with a stolen gun, kills the four people there, walks home. And when the cops show up, they don't find the you know, the sort of things you'd expect to find. You know, clothes with the blood of the murder victims on it, the gun, things like that. But what Doug Evans says at trial is that although he doesn't have those things,

he has a string of witnesses, not witnesses to the murder, but witnesses to seeing Curtis walking this route on the morning of the murders. So Doug Evans puts people on the stand who say, you know, I saw Curtis leaving his house that morning. I saw Curtis three blocks away. I saw Curtis, you know, from his house. I saw Curtis on this route. And those people were convincing because they knew Curtis. It wasn't like, you know, they did a police sketch or something.

Those are people that have known him their whole lives. In addition to that, Doug Evans also had someone who testified, two people in the first trial and a person later on, who said, you know, I was in jail with Curtis, jail or prison, and Curtis actually confessed to the murders. You contacted us through your attorney indicating that you want to give a statement as to what occurred between you and Curtis Flowers. Is that true? Yes, sir. So although Curtis never confessed to law enforcement, the jurors heard from basically jailhouse informants saying, Curtis confided in me and said that he committed the murders. And that kind of testimony is very powerful because it's like you've been let in on a secret.

You know, Curtis didn't want us to know this, but he did make the mistake of telling someone. All this adds up to something that's very powerful for the state's case, and the jury convicts him. And what's the sentence? So he's sentenced to death. Does he immediately appeal? He does. He appeals to Mississippi Supreme Court. And he wins.

And the Mississippi Supreme Court says that the prosecutor engaged in misconduct. So specifically, Doug Evans said things to the jury that wasn't true. And also, basically, that he had misstated the facts of the case in front of the jury. So they overturned the conviction. And Doug Evans decides to try the case again. And what happens the second time? Same thing. So the case, he gets convicted, he appeals, he wins his appeal, he gets tried again a third time, he appeals, he wins his appeal, he gets tried again. Fourth time, there's a hung jury, can't agree on a verdict. Fifth time, hung jury, can't agree on a verdict.

Until we get to the sixth trial, the most recent one, 2010. Again, Curtis is convicted and sentenced to death. Six trials? Yes. And was Doug Evans prosecuting each of these trials? Yes. Yeah, he's been the prosecutor throughout the entire time. Wow. I mean, what does he say about why he kept bringing this case against Curtis Lowers when he doesn't have any strong evidence?

Well, he thinks he does. So, I mean, what Doug Evans will say is, look, I have the right person. And how do I know this? I've convinced a jury of it, you know, at this point, four times. Any juror that I have heard except the ones that were lying to get on the jury, I haven't seen one yet that tried to say in any way that the evidence was not strong. What does Curtis have to say about being tried six times on the same counts? Well, I have never talked to him still. So this is one of the unique things about this story is that so Curtis is in a solitary cell in Parchman Prison in the Delta.

The prison won't let me interview him, won't let me talk to him on the phone or in person. His defense lawyers won't let him write back to me. So I've written him letters, which I know that he's received through his family,

but he's not been allowed to write back. But I do know from talking to his family and friends that he's very religious. He believes that justice will be done. He loved looking in magazines where they're cooking. He'd watch all the cooking shows and whatever. Then he'd tear out all the different recipes out of magazines, and he'd send them to me and tell me to put them up for him. Like, last night he was going to tell me, don't you be using my recipes. I'm going to use them myself when I get there.

I said, okay. I didn't touch them. They're still in the envelope. But, you know, we're talking about a very long time. I mean, he went into prison, a man in his 20s. He's now nearly 50. He can't wait until he gets home and he's going to cook this and that. He was telling

me about some short ribs last night. I said, I can't wait to taste. And how does Curtis's case finally end up at the Supreme Court? So in the sixth trial, Curtis is convicted and sentenced to death. It's familiar for Curtis. This has happened to him before. And so he does the next thing that he always does, which is appeal to the Mississippi Supreme Court. Every other time that he's done that, he's won his appeal. He's no longer convicted, and the case goes to trial again. This was the first time after the sixth trial that the Mississippi Supreme Court found for the state. They turned down Curtis's after the sixth trial that the Mississippi Supreme Court found

for the state. They turned down Curtis's appeal. They upheld the conviction. And so then Curtis had to go one step up. So that's where the case went to the U.S. Supreme Court. And, you know, it's interesting. It'll be very interesting to see what the Supreme Court does with this, because we've seen in recent years the court taking some of these racism in jury selection cases, which is at the heart of this case. And so it's clearly something that has gotten the court's attention. And when we think about all of the things that can get the U.S. Supreme Court's attention, it really is remarkable that this case, you know, this quadruple murder in a small town in Mississippi has gotten the attention of the highest court in the U.S.

The case of Curtis Flowers heads up to the Supreme Court of the United States, right after a quick break. I used to work on a podcast that, like, released 10 or so episodes a year. And now I work on a podcast that releases about 250 episodes a year. What I'm trying to say is, I'm no stranger to stress. I am, however, a stranger to the Calm app. But what I've been finding out is that it's the number one app to help you reduce your anxiety and stress and to help you sleep better. They've got sleep stories, which are bedtime stories for adults designed to help you relax. You can head to the magical lavender fields of southern France with Stephen Fry or explore the moonlit jungles of Africa with Leona Lewis. I don't even know who

that is. It sounds great. Today, Explained listeners, right now you get 25% off a Calm premium subscription at calm.com slash explained. My new homepage, that is C-A-L-M dot com slash explained. Unlimited access to all the calm stuff. Check it out. Maybe you'll stop stressing. So Madeline, what exactly is at issue in this Supreme Court case today? What will they be considering in the case? So what they're not considering is whether Curtis is innocent or not.

Or whether there was good evidence in his case or not. It's not about that at all. It's about what happened in jury selection. The court is going to be looking at, did the prosecutor, Doug Evans, violate the U.S. Constitution by intentionally striking Black people from the jury in Curtis's sixth trial? Which has been illegal since, what, the 80s because of something called the Batson rule, right? Yeah, so you can, you know, prosecutors, both sides, can strike people from the jury in jury selection. It's called peremptory challenges. And you can strike people for basically almost any reason you want. You know, the only reason, one of the few reasons you cannot strike someone is because of their race.

So that's against the Constitution. And there's this court case that creates a process for that that is called Batson that's from the 80s. Thank you, gentlemen. The case is submitted. We'll hear arguments next in Batson against Kentucky. And what Batson says is that if you're the defense and you're sitting there and you're watching the prosecutor strike one black juror after another and you're starting to think, wait a minute, I don't think these people are being struck because they know the victim or know the defendant. I think they're being struck because of their race. You can raise what's called a Batson challenge. And what happens then is the judge can decide to ask the prosecutor to give his reasons why these jurors were struck.

And so the prosecutor then give his reasons why these jurors were struck. And so the prosecutor then gives his reasons. And any reason basically is fine, except one reason that is not fine is because they're black. So what we often see prosecutors giving other reasons, sometimes those reasons are perfectly valid. Sometimes those reasons are what are known as pretexts, like basically excuses to strike black jurors because of their race. It's incredibly hard to prove, and it's completely up to the judge to decide whether there is a Batson violation or not. What's the case that this is what Doug Evans was doing? So even though it is very hard to find a

Batson violation, in the Flowers case alone, he has been caught doing this twice. In the second trial, during the trial, where Doug Evans was caught by a judge doing this, and by the Mississippi Supreme Court in Curtis's appeal of his third conviction. What's being determined today at the Supreme Court is whether there were Batson violations in the sixth and final trial of Curtis Flowers, what did the jury end up looking like that sixth time? So that jury was 11 white people, one black person. And it's important to note, like, this area where the case was tried is only slightly majority white.

And so a jury that's 11 white people and one black person is immediately going to be something that stands out. What reason did Doug Evans give for striking jurors in this particular jury? So he said that some people had been sued by Tardy Furniture where the murders happened, that they had furniture accounts there that were past due. He said that some of the people he struck knew people in the Flowers family, worked with people in the Flowers family, knew witnesses in the case. So there's a whole bunch of reasons that Doug Evans gives. And that's very typical when you're asked why, to give a number of reasons. And the trial judge in trial six was fine with those reasons.

He accepted those reasons. Curtis was convicted and sentenced to death. And the Mississippi Supreme Court accepted those reasons, too, when Curtis appealed. So now the question will be, will the Supreme Court of the United States accept those reasons too when Curtis appealed. So now the question will be, will the Supreme Court of the United States accept those reasons? So now what, like the nine justices are just going to relitigate the reasons that Doug Evans gave? Well, maybe, sort of. That is the question. But what the defense wants to argue in front of the Supreme Court is that if you look at the specifics of this case, those are not real reasons. Those are fake reasons, the defense will

say. But also that you shouldn't trust this prosecutor because this prosecutor has been caught doing this twice in this very same case. And so they want to point to what they're calling a pattern of conduct by Doug Evans, which gets to, I mean, if you're trying to show someone's intent, if you can show in the past that their intent was bad or their intent violated the Constitution, the defense is saying, well, that's a powerful argument that we shouldn't give him the benefit of the doubt in the latest trial. You know, Madeline, I actually reported a piece about Batson's strikes and the Batson case that went up to the Supreme Court for more perfect a few years ago.

And I actually met with the prosecutor who tried James Batson in Kentucky. And he told me now, looking back on that case, he just thinks that there's no room for peremptory strikes in the judicial system because it's impossible to not use biases to get rid of jurors and that the system isn't built to get rid of those biases. And even with this rule, you can't get rid of these biases. Is there a chance the Supreme Court looks at what Doug Evans did and says, you know, you're clearly violating the system and potentially getting away with it? Maybe we just should get rid of these peremptory strikes so that, you know, the jury you receive is the one you get? That would be extraordinary.

I mean, that would definitely not be expected. Justice Thurgood Marshall had this same concern, as you probably know, like in the Batson decision. He was justice on the court at the time, and he said, listen, okay, fine, let's overturn Batson's conviction, but I have some serious concerns about whether peremptory strikes can ever be fair. Because peremptory strikes are, you know, they're kind of an interesting thing. I mean, they're different than the strikes that say, you know, I have a sick kid. I can't be on the jury. I've got a medical condition. I can't sit, you know, for a full day. This is saying this has to do more with strategy. So there definitely are people that say, why even allow this? Because how then can you ever root out

possible racism that comes into play? So that is a longstanding debate. But I would be very surprised if the court decided to make some kind of ruling like that. I mean, of course, with the Supreme Court, you never know. But I think that would surprise a lot of people. And is Curtis's case unique? Is it rare that you see this happening to someone? In some ways, Curtis's case is unique. and in other ways, it is altogether common. So certainly it is very unusual to try someone six times for the same crime. It also seems unusual, though the tracking of it is very poor across the country, that you would have a prosecutor repeatedly be called out for the same misconduct and continue to try the case over and over again. You know, this is a case that has gone on for more than 20 years.

But there's other aspects of Curtis's case that are not at all uncommon. So when we look at, you know, some of the evidence in the case, problems with the evidence, those are more common features. You know, there's some concerns about junk science, faulty jailhouse informants, people changing their testimony. But the issue that's at the heart of what the Supreme Court is going to be looking at is something that is really not tracked very much in the United States. So you'd think that we would care a lot in this country about tracking race in jury selection. Like if we wanted to know, does my district attorney strike most

black people from the jury, that there might be a form that gets filled out or an annual report. But in reality, there's nothing like that. And so we only have like a handful of studies in across the country about whether or not black people are being disproportionately struck from juries. What we did in this case is we actually conducted our own study of Doug Evans. So Doug Evans has been the DA since 1992. And what we did is we went about trying to find, we spent a year doing this, scanning in trial transcripts, all the trials that we could find transcripts for that Doug Evans and his office had tried since 1992. And then we looked at, got all the records we could get from jury selection, the jury lists, the race of the jurors. And then we analyzed that data and we found that Doug Evans and his office were striking black people from the juries at a rate nearly four and a half times that of white people. One way to look at this is to say, okay, what does that mean? That means

that those defendants got a jury that was not racially representative of the place where they live. But there's also something else that to me is equally worth thinking about, which is that if I am a black person living in this area, my chances of serving on a jury seem to be lower than that of white people. You know, that I am, you know, if I were African American living in this area, I would be being denied in a lot of cases the ability to take part in what is one of the most powerful ways you can take part in a democracy, which is deciding someone's guilt. And so when we see a pattern of basically disenfranchisement from being on a jury, that to me is the other concern that arises beyond was a particular trial fair or not but the reality is that unless a year long study is conducted

with paper documents scanned spreadsheets made, methodologies created no one will ever know whether or not this is happening where you live. And just to bring this back to Curtis, what would happen to him if he wins at the Supreme Court? So that would mean his conviction would get overturned. But that doesn't mean that he would necessarily get out of prison, because even if the court finds in Curtis's favor, which would be finding that Doug Evans violated the Constitution by intentionally striking black people from the jury, D.A. Doug Evans would still have the chance to try this case again. So Doug Evans could bring it to trial for a seventh time. Madeline Barron is the host of In the Dark.

It's a podcast all about the case of Curtis Flowers, and a few more episodes about him and his case will drop after today's oral arguments, and again once there's a decision. I'm Sean Ramos for M. This is Today Explained. Thanks again to Calm for supporting the show today. Right now, you can get 25% off a premium Calm subscription at my new favorite website, calm.com slash explained. That is C-A-L-M.com slash explained. Unlimited access to all that good Calm content at calm.com slash explained.