MARY LOUISE KELLY, HOST:
More decisions out of the U.S. Supreme Court today. The justices struck down the conviction of an African American death row inmate who was prosecuted six times for the same crime by the same prosecutor in Mississippi. The court said that that prosecutor had deliberately sought to exclude African Americans from the juries in each and every trial. NPR legal affairs correspondent Nina Totenberg is here. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi there.
KELLY: Six trials, same crime, same prosecutor - what happened?
TOTENBERG: Well, this all took place in Winona, Miss. - population 5,000. The crime was just awful. It was the murder of four people at a furniture store. Months later, this guy Curtis Flowers, who had once worked at the store, was arrested. He had no prior criminal record. Now, this is a majority black town, but the DA was white, and so were most of the jurors. The Mississippi Supreme Court struck down the first three convictions, saying that the prosecutor had engaged in misconduct that ranged from misleading the jury about evidence that didn't even exist to racial discrimination in jury selection.
In the fourth and fifth trials, where the prosecutor ran out of peremptory strikes, there was more than one black juror on each of those trials, and the jury deadlocked in both. But in the sixth trial, there was one - just one black juror again, and Flowers was convicted and sentenced to death again.
KELLY: Just before we move on, you mentioned peremptory strikes. For people who might not know what - how does that work?
TOTENBERG: In a jury trial, each side is allowed a certain number of peremptory challenges. And that means that the prosecution or the defense can strike a prospective juror for no reason at all. Now remember; this is a majority black town. But in the six trials, the prosecutor used up his peremptory challenges to strike 41 out of 42 prospective black jurors.
KELLY: Forty-one out of 42.
TOTENBERG: Yeah.
KELLY: Wow.
TOTENBERG: The juries that deadlocked were the only ones that had more than one black juror. And they only had more than one black juror because he ran out of strikes. Right.
KELLY: Because he ran out of strikes, right. So - but how does this happen?
TOTENBERG: Well, Justice Alito asked that very question of the state's attorney at the oral argument. Take a listen.
(SOUNDBITE OF ARCHIVED RECORDING)
SAMUEL ALITO: 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?
UNIDENTIFIED ATTORNEY: Only upon request by that district attorney. We were not so requested.
TOTENBERG: So today, the Supreme Court reversed the conviction in that sixth trial. Justice Brett Kavanaugh, writing for the court majority, said that the totality of the numbers speak loudly here and cannot be ignored. And in the sixth trial, the one that was technically at issue here, the prosecutor asked the five black prospective jurors who were struck a total of 145 questions, whereas he asked the 11 white jurors who were seated just 12 questions. None of this, he said, can be viewed as happenstance.
KELLY: Now, Nina, this decision was a 7-2 split. Who were the two? Who dissented?
TOTENBERG: The two were Justices Clarence Thomas and Neil Gorsuch. In their view, there was no evidence of discrimination at any of the trials. Writing for the two, Thomas, who is the court's, of course, only black justice, blamed the media attention for the court's decision. He said today's decision, quote, "only encourages the litigation and relitigation of criminal trials in the media."
KELLY: And we just have a few seconds left, but I can't let you go without asking what happens to this death row inmate, to Curtis Flowers now?
TOTENBERG: Well, he's been on death row for 22 years. And the state now will have to decide if the case against him is good enough that it should retry him for the seventh time, presumably with a different prosecutor. And by the way, if you want to know more about this case, American Public Media did an "In The Dark" podcast about it.
KELLY: All right, we will listen up. That is NPR legal affairs correspondent Nina Totenberg. Thank you, Nina.
TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.
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