A lopsided Supreme Court majority has ordered a new trial for a criminal defendant who has already been tried six times for capital murder, ruling that the sixth trial violated the defendant's rights under the Equal Protection Clause because the prosecutor was motivated by discriminatory intent in striking a black woman from the jury. Relevant to this holding was the Court's finding that the prosecutor had a history of racially-discriminatory juror selection practices in this case.
The case is Flowers v. Mississippi, decided on June 21. The vote was 7-2. The same lead prosecutor handled all six trials. The Supreme Court says, "in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck[.]" At the sixth trial, the state "engaged in dramatically disparate questioning of black and white prospective jurors" and it "then struck at least one black prospective juror, . . . who was similarly situated to white prospective jurors who were not struck by the State"
Under Supreme Court precedent, the Equal Protection Clause is violated when prospective black jurors are excluded from sitting on the case because of their race. That's the Batson case, from 1986. Parties raise Batson challenges during jury selection, and when that happens, the other side has to advance a race-neutral reason for excluding the juror. The trial court's ruling on that issue is reviewed for an abuse of discretion on appeal.
The Supreme Court orders a new trial for Flowers because of the significant racial disparity in the potential jurors who were sent home. Another reason for this was the questioning during the sixth trial, when prosecutors struck Carolyn Wright, purportedly because she knew several defense witnesses and had worked at the same store where Flowers' father had worked. But, Justice Kavanaugh writes for the majority, white prospective jurors who also had relationships with members of Flowers' family were not hit with follow-up questions in order to explore the depth of those relationships.
Justice Thomas dissents. After taking apart the majority's reasoning on the Batson challenges of this case, determining that the prosecutor had race-neutral reasons for excluding the black jurors, he restates his objection to the Batson principle and says "the entire line of cases following Batson is a misguided effort to remedy a general societal wrong by using the Constitution to regulate the traditionally discretionary exercise of peremptory challenges." Thomas said this in 1998 and he says again in this case. While some Justices in the past have suggested eliminating peremptory strikes altogether, Thomas does not see it that way, as "the peremptory system has always been held essential to the fairness of trial by jury," and the basic premise for eliminating peremptory challenges, "that a juror's racial prejudices can make a trial less fair, has not become 'obsolete.'" Rather, Thomas says, the racial composition of a jury matters because racial biases, sympathies, and prejudices still exist." Under the peremptory challenge system, "the Court continues to apply a line of cases that prevents, among other things, black defendants from striking potentially hostile white jurors."