Justice Thomas speaks as U.S. top court confronts racial bias in jury selection

[March 21, 2019]  By Lawrence Hurley

WASHINGTON (Reuters) - U.S. Supreme Court justices appeared poised to side with a black Mississippi death row inmate put on trial six times for a 1996 quadruple murder who accused a prosecutor of repeatedly blocking black potential jurors, though the court's only black member sounded skeptical.

Justice Clarence Thomas, who had not posed a question during an oral argument in three years, asked several in the case involving Curtis Flowers, 48, who has argued that his constitutional right to a fair trial was violated.

Thomas, an idiosyncratic conservative and only the second African American ever appointed to the court, signaled through his questions he might vote against Flowers, who otherwise drew broad support among the other justices, both liberal and conservative.

The case is the latest to reach the nine-member court over allegations of racial bias against minorities in the American criminal justice system. Some prosecutors, including in Southern states like Mississippi, have been accused over the decades of trying to ensure predominately white juries for trials of black defendants to help win convictions.

Prosecutors and defense lawyers can dismiss - or "strike" - a certain number of prospective jurors during jury selection without giving a reason. In 1986, the Supreme Court ruled that people cannot be excluded from a jury because of their race based on the right to a fair trial under the U.S. Constitution's Sixth Amendment and the 14th Amendment promise of equal protection under the law.

Thomas focused on whether lawyers for Flowers sought to exclude white people from the jury in the most recent trial, which would indicate that both sides used race as a factor in selecting jurors.

First Thomas asked whether the defense struck any jurors. Then he asked, "What was the race of the jurors struck there?" Sheri Lynn Johnson, Flowers' attorney, said the jurors the defense sought to block were white, but argued that what was relevant in the case was the motives of the prosecutor, not the defense lawyer.

The other justices largely sounded supportive of Flowers' claim. "We can't take the history out of this case," conservative Justice Brett Kavanaugh told the state's lawyer, Jason Davies.

Another conservative, Justice Samuel Alito, said "the history of this case prior to this trial is very troubling" and noted that it was "cause for concern and certainly relevant" to how the justices decide the dispute.

Liberal Justice Elena Kagan questioned why prosecutors excluded a black potential juror, Carolyn Wright, who had said she supported the death penalty and had an uncle who is a prison security guard.

"Except for her race, you would think that this is a juror that a prosecutor would love when she walks in the door. Isn't she?" Kagan asked.

A ruling is due by the end of June.

U.S. Supreme Court Justice Clarence Thomas is seen in his chambers at the U.S. Supreme Court building in Washington, U.S. June 6, 2016. REUTERS/Jonathan Ernst/File Photo

QUESTIONS FROM THOMAS

Thomas not had asked a question since a February 2016 gun rights case in which he voiced concern that people convicted of domestic-violence misdemeanors could permanently lose the right to own a firearm. In another 2016 case, Thomas was the sole dissenter when the court ruled in favor of a black Georgia death row inmate who made a similar jury claim.

On race issues, Thomas has been a decisive vote to restrict affirmative action programs designed to help minorities overcome past discrimination. In 2013, he was part of the majority when the court struck down a key section of the Voting Rights Act, passed in 1965 to protect black voters in Southern states from ongoing discrimination.

The justices heard Flowers' appeal of his 2010 conviction - in his sixth trial - on charges of murdering four people at the Tardy Furniture store where he previously worked in the small central Mississippi city of Winona.

His lawyers accused long-serving Montgomery County District Attorney Doug Evans of engaging in a pattern of removing black jurors that indicated an unlawful discriminatory motive. Evans has given non-racial reasons for striking jurors.

Flowers was found guilty in his first three trials but those convictions were thrown out by Mississippi's top court. Several blacks jurors participated in the fourth and fifth trials, which ended without a verdict because the jury both times failed to produce a unanimous decision. In the sixth trial, there were 11 white jurors and one black juror.

The jury in the first trial was all-white. One black juror took part in each of the three other trials.

Prosecutors said Flowers was upset with the store owner for firing him and withholding his paycheck to cover the cost of batteries he previously had damaged. He was convicted of killing store owner Bertha Tardy, 59; bookkeeper Carmen Rigby, 45; delivery worker Robert Golden, 42; and part-time employee Derrick Stewart, 16. All except Golden were white.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

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