S2 E13: Oral Arguments

The newest and perhaps most controversial member of the U.S. Supreme Court, Brett Kavanaugh, appeared to side heavily with lawyers for Curtis Flowers during oral arguments Wednesday morning, in a case that centers on racial discrimination in jury selection.

The emphatic questions from Kavanaugh, who joined the court in October after a divisive confirmation process, indicated that a majority of the justices will likely vote to set aside Flowers' conviction and death sentence, handed down by a jury of 11 whites and one African-American.

Flowers' attorneys contend that his rights were violated when District Attorney Doug Evans struck African-Americans from the jury at Flowers' 2010 trial, his sixth for the 1996 murders of four people at the Tardy Furniture store in Winona, Mississippi.

The justices' decision will turn on whether they think the Mississippi Supreme Court, in denying Flowers' appeal, correctly applied the 1986 ruling in Batson v. Kentucky, in which the nation's highest court ruled that removing people from juries because of their race violates the Fourteenth Amendment.

Court observers view Kavanaugh and Chief Justice John Roberts as possible swing votes in the case.

The full transcript of oral arguments in the Curtis Flowers case, with analysis, context and fact-checks from our team of reporters.

JOHN ROBERTSChief Justice

We'll hear argument this morning in Case 17-9572, Flowers versus Mississippi.

Ms. Johnson.

The court is smaller than you'd expect. Every seat was filled. There are carved friezes along the top of the walls and the ceiling is patterned with inlaid flowers in red, blue, gold and white. And in the front, the justices sit in nine high-backed, black leather chairs. Behind them are thick marble columns and red drapes with gold fringe hanging from floor to ceiling.-Madeleine Baran 

SHERI JOHNSONon behalf of Curtis Flowers

Mr. Chief Justice, and may it please the Court:

The only plausible interpretation of all of the evidence viewed cumulatively is that Doug Evans began jury selection in Flowers VI with an unconstitutional end in mind, to seat as few African American jurors as he could.

A strong opening from Flowers' lawyer, getting right to heart of her argument: that Doug Evans intentionally discriminated. -Parker Yesko 

The numbers alone are striking. In the first four trials, Mr. Evans exercised 36 peremptory challenges, all of them against African American jurors. In the sixth trial, he exercised five out of six of his challenges against African American jurors.

Evans did use the majority of his strikes against black prospective jurors, but he didn't use all his strikes against black prospective jurors. In the first four trials, Evans used 44 strikes total, 36 against black prospective jurors and eight against white ones. -Will Craft 

If we look at the numbers of his — regarding his questioning, they are likewise stark. He asked of the struck African American jurors an average of 29 questions. He asked of the seated white jurors an average of 1.1 questions.

But these numbers do not stand alone. Mr. Evans was twice found to have discriminated on the basis of race in the exercise of his peremptory challenges against African American defendants in trials of the same case against the same defendant.

In Flowers' second trial, Evans struck a black prospective juror because, according to Evans, he'd been sleeping during jury selection and was part of a gang. Neither claim turned out to be true. The trial judge ruled that Evans had struck the man because of his race and ordered him back on the jury.

And then after Flowers' third trial, in which Evans used all 15 of his peremptory strikes against black prospective jurors, the Mississippi Supreme Court found that Evans had discriminated in jury selection. The court called Evans' actions "as strong a prima facie case of racial discrimination as we have ever seen" and threw out Flowers' conviction. -WC 

There is no one who has a record of discrimination, adjudicated discrimination, like that of Mr. Evans.

SAMUEL ALITOAssociate Justice

The history of the case prior to this trial is very troubling, and you've summarized that. And it is — it is cause for concern and is certainly relevant to the decision that ultimately has to be made in the case.

A remarkable opening from one of the most conservative justices on the court. An early indication there's at least some agreement across the ideological spectrum on a fundamental premise of Johnson's argument. Flowers needs five votes to win. If he can convince one of the Republican-appointed justices, then he stands a good chance of seeing his conviction reversed. -PY 

But if we were — and I'm not suggesting that this is the way it should be analyzed; this is not the way it should be analyzed — but, if we were to disregard everything that happened before this trial, and we looked at the strikes of the black prospective jurors as we would in any other Batson case, do you think you'd have much chance of winning?

This case is all about whether the Mississippi Supreme Court properly applied the Batson ruling when it denied Flowers' appeal in 2017.

Batson refers to the landmark 1986 Supreme Court decision in Batson v. Kentucky, which found that it is unconstitutional to strike jurors because of their race.

Batson established a three-step test to determine if racial bias motivated a strike. -PY 

The Supreme Court is a notoriously secretive place, so no one knew exactly how oral arguments in the case of Curtis Flowers would unfold on March 20. After listening to 54 minutes of legal debate, those in the packed courtroom reclaimed their wireless devices from the press area and public lockers, and emptied onto the streets of Capitol Hill. Then the tweeting began.

The consensus seemed to be that Flowers' lawyer, Sheri Johnson of the Cornell Death Penalty Project, had handily defeated Jason Davis, the assistant Attorney General from Mississippi, who'd been sent to the nation's high court to defend District Attorney Doug Evans' handling of Flowers' 2010 trial.

The headlines were about Justice Brett Kavanaugh's emphatic defense of Batson, the 1986 ruling that made it unconstitutional to strike jurors on the basis of race.

In the Dark host Madeleine Baran was struck by the support that most of the justices showed for Johnson's argument. It wasn't just Kavanaugh who appeared to be disturbed by Evans' record of striking many black prospective jurors over the course of six trials. At points, even Justices John Roberts and Samuel Alito expressed dismay at Evans' history in the case.

For Flowers to prevail, he needs at least one of the more conservative justices to side with him. That almost certainly will not be Justice Clarence Thomas, who broke three years of silence on the bench to pose a question. Thomas grabbed the headline in the New York Times:

Many people remarked at how Justices Sonia Sotomayor and Alito grilled Davis about why his office, headed by Mississippi Attorney General Jim Hood, hadn't stepped in to take the case away from Evans years ago.

The lawyers on both sides were silent about the arguments on social media. So too were the Mississippi Attorney General's office and Evans. But people in-the-know were ready to call the case in favor of Flowers, including reporters who cover the Supreme Court day in and day out ...

... for the Associated Press,

The Washington Post,

USA Today,

and Bloomberg Law.

In the Dark reporters also checked in after the hearing with several people familiar with the case to see how they thought the justices might split.

"The over-under would be 6-3, unless something comes up during deliberations to upset the applecart," said Garrett Epps, a law professor at the University of Baltimore who covers the Supreme Court for The Atlantic.

"I try not to predict based on oral argument alone but, that said, it is hard for me to see why the court granted this case at all unless there are at least four votes to reverse," Epps said. "Based on the comments, I would say that Justices Alito and Thomas are definite affirms; Gorsuch is leaning to affirm; and Chief Justice Roberts and Justice Kavanaugh are leaning to reverse."

"Finding out where Kavanaugh seemed to be positioned basically gave a sense that there were enough votes for Mr. Flowers," said Chris Kemmitt, an attorney at the NAACP Legal Defense Fund, who authored a friend-of-the-court brief in support of Flowers' case.

"There are multiple justices who didn't exactly declare their thoughts, so you could imagine a range of different scenarios. If forced to take an exact vote breakdown, I think I would pick 7-2 or 8-1," Kemmitt said.

Yale Law School professor Stephen Bright also thinks Johnson may have helped deliver a landslide victory for her client. And he's been in her shoes. Bright successfully argued the last two Supreme Court cases that set precedents on race discrimination in jury selection.

"Who won? Flowers and the black jurors that were struck," Bright said. "I would expect the Court will decide for [him], 7-2. ... I would not be surprised if Kavanaugh writes the opinion."

A ruling is expected before the end of the court's term in late June or early July.

• Full transcript of this episode
• Source notes for this season