Johnson v. The Goodyear Tire & Rubber Company Brief for Plaintiffs-Appellants

    No. 17-9572
In  T h e

Supreme Court of tfje QEntteti States.
C u r t is  G io v a n n i F l o w e r s ,

Petitioner,

v.

S t a t e  o f  M i s s i s s i p p i ,

Respondent.

On Writ of Certiorari 
to the Mississippi Supreme Court

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC. IN SUPPORT OF PETITIONER

S h e r r il y n  A. I f il l  
Director-Counsel 

J a n a i S. N e l s o n  
S a m u e l  S p it a l  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , I n c . 
40 Rector St., 5th Floor 
New York, NY 10006

C h r is t o p h e r  K e m m it t * 
K e r r e l  M u r r a y  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , I n c . 
700 14th St. NW Suite 600 
Washington, DC 20005 
(202) 682-1300 
ckemmitt@naacpldf.org

Counsel for Amicus Curiae 
NAACP Legal Defense & 
Educational Fund, Inc.

December 27, 2018 * Counsel of Record

mailto:ckemmitt@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF AUTHORITIES..........................   iii

INTERESTS OF AMICUS CURIAE............................ 1

INTRODUCTION AND SUMMARY OF
ARGUMENT................................................................2

ARGUMENT..................................................................... 3

I. THE RIGHTS TO SERVE ON—AND BE 
TRIED BY—AN IMPARTIAL, FAIRLY 
CONSTITUTED JURY, ARE INTEGRAL
TO FULL AMERICAN CITIZENSHIP................. 3

II. THROUGH DETERMINED EVASION,
RECALCITRANT STATES HAVE
SUBORDINATED THE RIGHTS TO 
SERVE ON AND BE TRIED BY FAIRLY 
CONSTITUTED JURIES TO ANTI­
BLACK DISCRIMINATION................................... 6

A. Reconstruction’s Collapse Engendered
Immediate Denial of the Jury-Trial 
Right......................................................................7

B. The States Innovated to Elude This
Court’s Decisions Combatting Post- 
Reconstruction Jury-Service
Suppression........................................................ 10

C. Jury  Discrimination Remains Common
After Batson ........................................................13

PAGE



11

III. WINONA AND THE FIFTH JUDICIAL
DISTRICT HAVE A LONG HISTORY OF 
DENYING AFRICAN AMERICANS 
EQUAL RIGHTS......................................................17

IV. DOUG EVANS HAS A HISTORY OF
DISCRIMINATING AGAINST AFRICAN 
AMERICAN JURORS, AND THAT 
PATTERN OF DISCRIMINATION HAS 
PERSISTED THROUGHOUT MR. 
FLOWERS’ TRIALS................................................30

A. Mr. Evans’ Office Strikes African
American Jurors at a Much Higher 
Rate Than White Ju ro rs..................................30

B. Doug Evans’ Actions Throughout the
Six Curtis Flowers Trials Reveal an 
Intent to Remove as Many African- 
American Jurors as Possible..........................31

CONCLUSION.............................   37

TABLE OF CONTENTS
(CONTINUED)

PAGE



I l l

TABLE OF AUTHORITIES

Akins v. Texas,
325 U.S. 398 (1945).................................  11

Alexander v. Louisiana,
405 U.S. 625 (1972).....................................................1

Batson v. Kentucky,
476 U.S. 79 (1986).......................................... passim

Blakely v. Washington,
542 U.S. 296 (2004)............................................  4

Carter v. Jury Commission of Greene 
County,
396 U.S. 320 (1970)........................................1, 5

Cassell v. Texas,
339 U.S. 282 (1950)..................................................12

Edmonson v. Leesville Concrete Co.,
500 U.S. 614 (1991)......................   1

Flowers v. Mississippi,
158 So. 3d 1009 (Miss. 2014)................................. 35

Flowers v. Mississippi,
947 So. 2d 910 (Miss. 2007)...............  27-28, 32, 33

Georgia v. McCollum,
505 U.S. 42 (1992).......................................................1

PAGE(S)

CASES



IV

Ham v. South Carolina,
409 U.S. 524(1973)....................................................1

Hill v. Texas,
316 U.S. 400 (1942)........................................... 10, 11

J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994).................................................... 5

Johnson v. California,
545 U.S. 162 (2005).....................................................1

McDonald v. City of Chicago,
561 U.S. 742 (2010).................................................... 6

Miller-El v. Cockrell,
537 U.S. 322 (2003).....................................................1

Miller-El v. Dretke,
545 U.S. 231 (2005).......................................1, 13, 14

Neal v. Delaware,
103 U.S. 370 (1881)............................................. 7, 11

Neely v. City of Grenada,
438 F. Supp. 390 (N.D. Miss. 1977).....................25

Norris v. Alabama,
294 U.S. 587 (1935).................................... 10, 11, 16

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



V

Parsons v. Bedford, Breedlove & Robeson,
28 U.S. (3 Pet.) 433 (1830) (Story, J . ) ....................3

Peha-Rodriguez v. Colorado,
137 S. Ct. 855 (2017)......’..................... .................. ..9

Powers v. Ohio,
499 U.S. 400 (1991)................................. ..............4, 5

Rose v. Mitchell,
443 U.S. 545 (1979)................................................... 5

Schick v. United States,
195 U.S. 65 (1904)..................................................... 4

Strauder v. West Virginia,
100 U.S. 303 (1880)...................... .................... 2, 4, 7

Swain v. Alabama,
380 U.S. 202 (1965)................................1, 12, 13, 16

Turner v. Fouche,
396 U.S. 346 (1970)................................. ....... .......... 1

Williams v. Mississippi,
170 U.S. 213 (1898)............................................... 7, 8

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



VI

STATUTES & CONSTITUTIONS

18U.S.C. § 243...........................................................6, 36

Miss. Code Ann. § 99-15-35 ..........................................35

U.S. Const, amend. V .......................................................4

U.S. Const, amend. V I .................................................... 4

U.S. Const, art. III. § 2.................................................... 4

OTHER AUTHORITIES

Alan Bean, Doug Evans and the Mississippi 
Mainstream, Friends of Justice 
(Oct. 20, 2009),
https://friendsofjustice.blog/2009/10/20/d 
oug-evans-and-the-mississippi- 
m ainstream C............................................................. 27

Alan Blinder & Kevin Sack, Dylann Roof Is 
Sentenced to Death in Charleston Church 
Massacre, N.Y. Times (Jan. 10, 2017)................ ..28

Albert W. Alschuler & Andrew G. Deiss,
A  Brief History of Criminal Jury in the 
United States, 61 U. Chi. L. Rev. 867 
(1994)....................... ................................................ 6, 7

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)



vii

TABLE OF AUTHORITIES
(CONTINUED)

OTHER AUTHORITIES

PAGE(S)

Ann M. Eisenberg et. al., I f  It Walks Like 
Systematic Exclusion and Quacks Like 
Systematic Exclusion: Follow-Up on
Removal of Women and African- 
Americans in Jury Selection in South 
Carolina Capital Cases, 1997-2014, 68 
S.C. L. Rev. 373 (2017)...........................................15

AP, Grenada Negroes Beaten at School,
N.Y. Times (Sept. 13, 1966),
http s ://timesmachine. nytim es. com/time s
machine/1966/09/13/79311321.html?aeti
on=click&contentCollection=Archives&
module=ArticleEndCTA&region=Archiv
eBody &p gtyp e=article &p age Number= 1............25

Arielle Dreher, State Rep. Karl Oliver Calls 
for Lynching over Statues, Later 
Apologizes, Jackson Free Press 
(May 21, 2017),
http://www.jacksonfreepress.eom/news/2 
017/may/21/report-mississippi-rep-karl- 
oliver-calls-lynching-/............................................29,

Brett M. Kavanaugh, Note, Defense Presence 
and Participation: A  Procedural
M inim um  for Batson v. Kentucky 
Hearings, 99 Yale L.J. 187 (1989) 16

http://www.jacksonfreepress.eom/news/2


V l l l

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PAGE(S)

OTHER AUTHORITIES

Bruce Hartford, Grenada Mississippi— 
Chronology of a Movement (1967), 
http s ://w w w. cr m ve t . or g/ info/gr e nada. ht

Catherine M. Grosso & Barbara O’Brien,
A  Stubborn Legacy: The Overwhelming 
Importance of Race in Jury Selection in 
173 Post-Batson North Carolina Capital 
Trials, 97 Iowa L. Rev. 1531 (2012) ......................14

Citizen’s Council/ Civil Rights Collection 
1954-1977, 1987-1992, Univ. of S. Miss. -  
McCain Library & Archives, 
http://lib.usm.edu/spcol/collections/manu 
scripts/finding_aids/m099.html (last 
visited Dec. 19, 2018)........................................19, 20

Comm, for S.B. 2069, Reg. Sess. 2009 
(Miss. 2009),
http://billstatus.ls.state.ms.us/document 
s/2009/pdf/SB/2001-2099/SB2069PS.pdf..............35

The Congress: Black’s White, Time
(Jan. 24, 1938),
http://content.time.com/time/subscriber/ 
article/0,33009,758933-2,00.html..........................17

http://lib.usm.edu/spcol/collections/manu
http://billstatus.ls.state.ms.us/document
http://content.time.com/time/subscriber/


IX

TABLE OF AUTHORITIES
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PAGE(S)

OTHER AUTHORITIES

Dave Mann, Did jury makeup decide Curtis 
Flowers’ fate and send him to death row?,
Clarion Ledger (June 24, 2018),
https://www.clarionledger.com/story/new 
s/2018/06/24/r ace -j uror s -pre dicte d - 
outcome -curtis-flowers-trial- 
analysis/726802002/............ ....................................36

Donna Ladd, From Terrorists to Politicians, 
the Council of Conservative Citizens Has 
a Wide Reach, Jackson Free Press 
(June 22, 2015),
http://www.jacksonfreepress.eom/news/2 
015/jun/22/terrorists-politieians-council- 
conservative-citize/...........................................26, 29

Douglas L. Colbert, Challenging the 
Challenge: Thirteenth Amendment as a 
Prohibition Against the Racial Use of
Peremptory Challenges, 76 Cornell L.
Rev. 1 (1990)........................................................ 8, 12

Douglas L. Colbert, Liberating the 
Thirteenth Amendment,
30 Harv. C.R.-C.L. Rev. 1 (1995)......................9, 10

Dylann Roof’s Manifesto, N.Y. Times 
” (Dec. 13, 2016).......................................................... 28

https://www.clarionledger.com/story/new
http://www.jacksonfreepress.eom/news/2


X

TABLE OF AUTHORITIES
(CONTINUED)

OTHER AUTHORITIES

PAGE(S)

Emily Prifogle, Law and Local Activism: 
Uncovering the Civil Rights History of 
Chambers v. Mississippi, 101 Cal. L. Rev.
445, 508 (2013)..........................................................20

Equal Justice Initiative, Illegal Racial 
Discrimination in Jury Selection: A  
Continuing Legacy (Aug. 2010), 
https://eji.org/sites/default/files/illegal- 
racial-discrimination-in-jury- 
selection.pdf....................................................... 14, 15

Fannie Lou Hamer, Testimony Before the 
Credentials Committee, Democratic
National Convention, Atlantic City, New 
Jersey, APM: Say It Plain Series (Aug.
22, 1964),
http://americanradioworks.publicradio.o 
rg/features/sayitplain/flham er.htm l..................... 22

FBI, Prosecutive Report of Investigation 
Concerning Roy Bryant, et al.
(Feb. 9, 2006),
http  s: //static 1. s quar e sp ace. com/s t atic/5 5 
bbe8c4e4b07309dc53b00f/t/55c03e28e4b 
06f6d00a58dl3/1438662184287/Emmett 
+Till+FBI+Transcript.pdf. 18, 19

https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf
https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf
https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf
http://americanradioworks.publicradio.o


XI

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

Federalist No. 83 (Hamilton)............. .............. .............3

Gene Roberts, White Mob Routs Grenada 
Negroes, N.Y. Times (Aug. 10, 1966), 
https://timesmachine.nytimes.com/times 
machine/1966/08/10/issue.html?action=c 
lick&contentCollection=Archives&modul 
e=ArticleEndCTA&region=ArehiveBody
&pgtype=article........................................................24

H.B. 302, Reg. Sess. 2009 (Miss. 2009), 
http  ://billstatus.ls. s ta te . ms .us/document 
s/2009/pdf/HB/0300-0399/HB0302IN.pdf..............5

Hon. J. Harvie Wilkinson III, In  Defense of 
American Criminal Justice, 67 Vand. L.
Rev. 1099 (2014).........................................................5

Howard Kester, Lynching by Blow Torch 
(Apr. 13, 1937), https://fmding-
aids.lib.unc.edu/03834/#folder_217#l........... 17, 18

In  the Dark Season Two: The Trailer 
(Apr. 16, 2018),
http s: //www .apmreports.org/story/2018/ 
04/16/in-the-dark-season-two-trailer...................32

https://timesmachine.nytimes.com/times
https://fmding-


OTHER AUTHORITIES

xii

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(CONTINUED)

PAGE(S)

In  the Dark Season Two, Episode 8: The
D.A., APM Reports (June 12, 2018).................... 26

Incident Sum m ary -  Mississippi, Student 
Nonviolent Coordinating Committee,
Lucile Montgomery Papers, 1963-1967;
Freedom Summer Digital Collection,
Univ. of Wis.
(Jan. 1965),
http://content.wisconsinhistory.org/cdm/ 
ref/collection/pl5932col 12/id/35295 .................... 23

Jackson House, This Boy’s Dreadful 
Tragedy: Emmett Till as the Inspiration 
for the Civil Rights Movement, 3 Tenor of
Our Times, art. 4 (2014)........................................ 18

Jam es Forman, Jr., Juries and Race in the 
Nineteenth Century, 113 Yale L. J. 895 
(2004).............................................................................9

Janice Hamlet, Fannie Lou Hamer: The 
Unquenchable Spirit of the Civil Rights 
Movement, 26 J. of Black Studies 560 
(1996).................................................   22,

Jared  A. Goldstein, The K lan’s Constitution, 
9 Ala. C.R. & C.L.L. Rev. 285 (2018)........ 19



X l l l

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(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

Jeffrey S. Brand, The Supreme Court, Equal 
Protection, and Jury Selection: Denying 
that Race Still Matters, 1994 Wis. L. Rev.
511, 556 (1994)......................................................... 11

John Edmond Mays & Richard S. Jaffe,
History Corrected—the Scottsboro Boys 
Are Officially Innocent, Champion 
(Mar. 2014),
https://www.nacdl.org/Champion.aspx7i 
d=32656...............................................................10, 11

John Herbers, City Negro Beaten Up, Panel 
Told, Delta Democrat-Times
(Sept. 26, 1961),
https://www.newspapers.com/image/215 
81794.......................................................................... 21

Karen M. Bray, Comment, Reaching the 
Final Chapter in the Story of Peremptory 
Challenges, 40 U.C.L.A. L. Rev. 517 
(1992)...........................................................................13

Lacey McLaughlin, Majority White Jury in 
Flowers Trial, Jackson Free Press 
(June 11, 2010),
http://www.jacksonfreepress.eom/news/2 
010/jun/ll/majority-white-jury-in- 
flowers-trial/.............................................................. 34

https://www.nacdl.org/Champion.aspx7i
https://www.newspapers.com/image/215
http://www.jacksonfreepress.eom/news/2


XIV

OTHER AUTHORITIES

Letter from Paul Brest, Miriam Wright, and 
Iris Brest to parents (Dec. 20, 1966), 
https://www.crmvet.org/docs/6612_grena 
da_parents-letter.pdf.................................. ............25

Michael J. Klarman, The Racial Origins of 
Modern Criminal Procedure, 99 Mich. L.
Rev. 48 (2000) ..............................................................9

Michael J. Klarman, Scottsboro,
93 Marq. L. Rev. 379 (2009)............................10, 11

Mississippi White Population Percentage, by 
County (2013),
https://www.indexmundi.com/facts/unite 
d-states/quick-facts/mississippi/white- 
population-percentage#map.............................   35

Monica Land, Sixth trial set in Winona 
murders, Grenada S tar (Sept. 22, 2009), 
https://www.grenadastar.com/2009/09/22 
/sixth-trial-set-in-winona-m urders/......................34

Morton Stavis, A  Century of Struggle for 
Black Enfranchisement in Mississippi:
From the Civil War to the Congressional 
Challenge of 1965—A nd Beyond, 57 Miss.
L.J. 591(1987)...................................................... 7, 23

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

https://www.crmvet.org/docs/6612_grena
https://www.indexmundi.com/facts/unite
https://www.grenadastar.com/2009/09/22


XV

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PAGE(S)

OTHER AUTHORITIES

Nicholas Targ, Human Rights Hero Fannie 
Lou Hamer (1917-1977), Hum. Rts.,
Spring 2005...............................................................23

Parker Yesko, Acquitting Emmett T ill’s 
Killers, Am. Pub. Media (June 5, 2018), 
http s ://w w w. ap mr ep orts. or g/story/2018/ 
06/05/all-white-jury-acquitting-emmett- 
till-killers....................................................... .....18, 19

Parker Yesko, Letter from Winona: A  year at 
the crossroads of M ississippi,” APM 
(May 1, 2018),
http s ://w w w. ap mr ep ort s . or g/ story/ 2018/ 
05/01/winona-a-town-at-the-crossroads.............. 21

Parker Yesko, The rise and reign of Doug 
Evans, APM (June 26, 2018),
http://explorerproducer.lunchbox.pbs.org 
/blogs/pmp/the-rise-and-reign-of-doug-
evans / .........................................................................27

Paul Alexander, For Curtis Flowers, 
Mississippi Is Still Burning, Rolling 
Stone (Aug. 7, 2013)................................................ 27

http://explorerproducer.lunchbox.pbs.org


XVI

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PAGE(S)

OTHER AUTHORITIES

Robert J. Smith & Bidish J. Sarma, How and 
Why Race Continues to Influence the 
Administration of Criminal Justice in 
Louisiana, 72 La. L. Rev. 361 (2012)................... 16

Ronald F. W right et. al.. The Jury Sunshine  
Project: Jury Selection Data as a Political 
Issue, 2018 U. 111. L. Rev. 1407 (2018).................15

Ruth Bloch Rubin & Gregory Elinson,
Anatomy of Judicial Backlash: Southern 
Leaders, Massive Resistance, and the 
Supreme Court, 1954-1958, 43 Law &
Soc. Inquiry 944 (2018)...................... ..............20, 21

Southern Poverty Law Ctr., Council of 
Conservative Citizens,
https://www.splcenter.org/fighting- 
hate/extremist-files/group/council- 
conservative-citizens
(last visited Dec. 19, 2018).................19, 20, 26, 28

https://www.splcenter.org/fighting-hate/extremist-files/group/council-conservative-citizens
https://www.splcenter.org/fighting-hate/extremist-files/group/council-conservative-citizens
https://www.splcenter.org/fighting-hate/extremist-files/group/council-conservative-citizens


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PAGE(S)

OTHER AUTHORITIES

Southern Poverty Law Ctr., Dozens of 
Politicians Attend Council of 
Conservative Citizens Events, Intelligence 
Report (Oct. 14, 2004),
https://www.splcenter.org/fighting~ 
hate/intelligence-report/2004/dozens- 
politicians-attend-council-conservative- 
citizens-events.......................................................... 28

Thomas B. Edsall, With “Resegregation,”Old 
Divisions Take New Form, Wash. Post 
(Mar. 9, 1999),
https://www.washingtonpost.com/archiv 
e/politics/1999/04/09/with-rese gre gation- 
old-divisions-take-new-form/2bff9044~ 
b356-4115-bllf-
a9al56dlec5c/?utm_term=.f8f7650031b2...........20

Thomas Ward Frampton, The Jim  Crow
Jury, 71 Vand. L. Rev. 1593 (2018)...........9, 14, 15

Tom Scarbrough, Miss. State Sovereignty 
Comm’n, Winona—Montgomery County,
Miss. Dep’t of Archives & History (Feb.
23, 1962), https://bit.ly/2STDGYG................ 21, 22

https://www.splcenter.org/fighting~
https://www.washingtonpost.com/archiv
https://bit.ly/2STDGYG


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OTHER AUTHORITIES

PAGE(S)

The Trials of Curtis Flowers, APM Reports 
(June 5, 2018),
http s ://w w w. ap mr ep orts. or g/story/2 018/ 
06/05/in-the-dark-s2e7......................................33, 34

Ursula Noye, Blackstrikes: A  Study of the 
Racially Disparate Use of Peremptory 
Challenges by the Caddo Parish District 
Attorney’s Office (Aug. 2015), 
https://perma.cc/EE7P-HUXJ............ ................ ...16

W.E.B. Du Bois, Black Reconstruction in
America (1962)............................................................9

Will Craft, Peremptory Strikes in 
M ississippi’s Fifth Circuit Court District,
APM Reports,
https://www.apmreports.org/files/perem
ptory_strike_methodology.pdf
(last visited Dec. 19. 2018)..............................30, 31

3 William Blackstone, Commentaries on the
Laws of England
(Phila., J.B. Lippincott Co., 1893)...................... 4, 5

4 William Blackstone, Commentaries on the
Laws of England
(Phila., J.B. Lippincott Co., 1893)...........................7

https://perma.cc/EE7P-HUXJ
https://www.apmreports.org/files/perem


INTEREST OF AMICUS CURIAE
The NAACP Legal Defense & Educational Fund, 

Inc. (“LDF”) is the nation’s first and foremost civil 
rights legal organization. Through litigation, 
advocacy, public education, and outreach, LDF strives 
to secure equal justice under the law for all 
Americans, and to break down barriers tha t prevent 
African Americans from realizing their basic civil and 
hum an rights.

The LDF has a long-standing concern with the 
influence of racial discrimination on the criminal 
justice system in general, and on jury selection in 
particular. We represented the defendants in, inter 
alia, Swain v. Alabama, 380 U.S. 202 (1965), 
Alexander v. Louisiana, 405 U.S. 625 (1972) and Ham  
v. South Carolina, 409 U.S. 524 (1973); pioneered the 
affirmative use of civil actions to end jury 
discrimination, Carter v. Jury Commission of Greene 
County, 396 U.S. 320 (1970), Turner v. Fouche, 396 
U.S. 346 (1970); and appeared as amicus curiae in 
Batson v. Kentucky, 476 U.S. 79 (1986), Edmonson u. 
Leesuille Concrete Co., 500 U.S. 614 (1991), Georgia v. 
McCollum, 505 U.S. 42 (1992), Miller-El v. Cockrell, 
537 U.S. 322 (2003), Johnson v. California, 545 U.S. 
162 (2005), and Miller-El v. Dretke, 545 U.S. 231 
(2005).1

1 Pursuan t to Supreme Court Rule 37.6, counsel for amicus 
curiae state th a t no counsel for a party authored this brief in 
whole or in part and th a t no person other than  amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. All parties have provided 
w ritten consent to the filing of this brief.



2

INTRODUCTION AND 
SUMMARY OF ARGUMENT

The right to serve on, and be tried by, an im partial 
jury constituted in a nondiscriminatory m anner is as 
integral to full participation in our democracy as the 
right to vote. For precisely th a t reason, those who 
seek to deny full citizenship to African Americans 
have always sought to deny this right. Since Strauder 
v. West Virginia in 1880, this Court has been clear 
th a t discriminatory jury practices violate the 
Constitution. But the devil has been in the details. 
Since Strauder—and to this day—recalcitrant state 
and local officials have worked assiduously to evade 
this Court’s m andates.

The racially motivated use of peremptory strikes 
is one discriminatory tactic th a t has been particularly 
difficult to root out. In Batson v. Kentucky, this Court 
recognized th a t its past efforts in the field had been 
inadequate and attem pted to implement a more 
meaningful remedy. Thirty-two years later, the state 
of play is clear: without robust, searching judicial 
review of prosecutors’ ostensibly neutral reasons for 
strikes, Batson s promise will rem ain unkept.

The history of racial discrimination in 
Mississippi’s Fifth Judicial District and Doug Evans’ 
record of discriminatory conduct highlight both the 
depth of the problem and the need for searching 
judicial review of peremptory challenges. White 
residents of the Fifth Judicial District have employed 
various means since the Civil War to deny African 
Americans full citizenship: lynching, Jim  Crow, mob 
violence, economic coercion, and the denial of voting 
and jury-service rights. Local officials have perm itted 
this discrimination at best and directed it a t worst.



3

Doug Evans’ tenure as District Attorney is but the 
latest chapter in this history of discrimination. Mr. 
Evans has an unprecedented track record of 
discriminatory jury selection. Over the course of his 
twenty-five years in office, Mr. Evans has used 
peremptory challenges on African American jurors at 
4.4 times the rate of white jurors. Mr. Evans has also 
taken multiple actions—prosecuting an African 
American juror who refused to vote for Mr. Flowers’ 
conviction, lobbying local legislators to pass laws tha t 
would make it easier to avoid seating African 
American jurors in this case, and speaking on 
multiple occasions to a white supremacist group— 
th a t demand heightened scrutiny of his peremptory 
strikes in Mr. Flowers’ case.

Mr. Evans’ pattern  of discrimination confirms 
what is clear from the transcript of Mr. Flowers’ trial: 
the prosecution unconstitutionally discriminated 
against African Americans in jury selection.

ARGUMENT
I. THE RIGHTS TO SERVE ON—AND BE 

TRIED BY—AN IMPARTIAL, FAIRLY
CONSTITUTED JURY, ARE INTEGRAL TO 
FULL AMERICAN CITIZENSHIP.
The right to tria l by an im partial jury is “justly 

dear to the American people . . . and every 
encroachment upon it has been watched with great 
jealousy.” Parsons v. Bedford, Breedlove & Robeson, 
28 U.S. (3 Pet.) 433, 446 (1830) (Story, J.). At a 
contentious Constitutional Convention, one of the few 
uncontroversial points was the importance of the 
right to tria l by jury in criminal cases. See, e.g., 
Federalist No. 83 (Hamilton). And the crim inal-trial



4

jury receives three separate mentions in the 
Constitution’s main text and the Bill of Rights. See 
U.S. Const, art. III. § 2; U.S. Const, amend. V; U.S. 
Const, amend. VI. Blackstone, “the most satisfactory 
exposito[r] of the common law of England,” Schick v. 
United States, 195 U.S. 65, 69 (1904), saved his 
highest praise for the right. He considered the power 
to demand “the unanimous consent of twelve of his 
neighbours and equals” before any deprivation of 
liberty to be “the most transcendent privilege” and the 
“glory of the English law.” 3 William Blackstone, 
Commentaries on the Laws of England  379 (Phila., 
J.B. Lippincott Co., 1893); see also Strauder v. West 
Virginia, 100 U.S. 303, 308—09 (1880) (referencing 
Blackstone).

The Founders understood tha t a robust jury-trial 
right is indispensable to a government th a t claims to 
derive its “just powers from the consent of the 
governed.” The Declaration of Independence para. 2. 
“Ju st as suffrage ensures the people’s ultim ate control 
in the legislative and executive branches, jury tria l is 
m eant to ensure their control in the judiciary[,]” 
Blakely v. Washington, 542 U.S. 296, 306 (2004). At 
its best, this quintessentially democratic institution is 
a critical bulwark “against the arbitrary exercise of 
power[,]” Batson v. Kentucky, 476 U.S. 79, 86 (1986), 
tha t “guards the rights of the parties” and “ensures 
continued acceptance of the laws by all of the 
peoplef,]” Powers v. Ohio, 499 U.S. 400, 407 (1991).

Because the jury helps sustain our democracy, 
nondiscriminatory access to this institution is no less 
a part of full citizenship than  suffrage. See, e.g., id. at 
407 (“[Wjith the exception of voting, for most citizens 
the honor and privilege of jury duty is their most



5

significant opportunity to participate in the 
democratic process.”)- The jury does not just protect 
the defendant: it “preserves in the hands of the people 
tha t share which they ought to have in the 
adm inistration of public justice.” 3 Blackstone, supra, 
at 380. As De Tocqueville recognized, it “places the 
real direction of society in the hands of the governed” 
and “invests the people . . . with the direction of 
society.”2 That means illegitimate jury composition 
harm s not just the accused, but “the “law as an 
institution,” the “community at large,” and “‘the 
democratic ideal reflected in the processes of our 
courts.”’ Rose v. Mitchell, 443 U.S. 545, 556 (1979) 
(citation omitted). Accordingly, this Court’s cases 
recognize and protect the rights of “potential jurors” 
as much as defendants, J.E.B. v. Alabama ex rel. T.B., 
511 U.S. 127, 128 (1994). Persons “excluded from 
juries because of their race are as much aggrieved as 
those indicted and tried by juries chosen under a 
system of racial exclusion.” Carter v. Jury Comm’n of 
Greene Cty., 396 U.S. 320, 329 (1970).

2 Hon. J. Harvie Wilkinson III, In  Defense of American Criminal 
Justice, 67 Vand. L. Rev. 1099, 1157 (2014) (quoting Alexis de 
Tocqueville, Democracy in America 293-94 (Philip Bradley ed., 
Vintage Books 1945) (1835)).



6

II. THROUGH DETERMINED EVASION, 
RECALCITRANT STATES HAVE 
SUBORDINATED THE RIGHTS TO SERVE 
ON AND BE TRIED BY FAIRLY 
CONSTITUTED JURIES TO ANTI-BLACK 
DISCRIMINATION.
African Americans have historically been 

excluded from the rights and privileges associated 
w ith full personhood in this country. The right to a 
jury tria l—and to participate as a juror—is no 
exception. Of course, enslaved Black persons were 
deprived of the rights of citizenship. But even in the 
“free” Northern states, it appears th a t no African 
Americans served on a jury before two served in 
M assachusetts in I860.3 It took a Civil War and three 
Reconstruction Amendments to defeat the claim tha t 
African Americans could not be full citizens of this 
country. See McDonald v. City of Chicago, 561 U.S. 
742, 807 (2010) (Thomas, J., concurring).

Since the Civil Rights Act of 1875, it has been a 
crime to discriminate in the jury selection process. See 
Civil Rights Act of 1875, ch. 114, § 4, 18 Stat. 335, 
336-37 (codified as amended at 18 U.S.C. § 243). And 
since 1880, it has been clear tha t the racial exclusion 
of jurors violates the Fourteenth Amendment. See 
Batson, 476 U.S. a t 85 (citing Strauder). But in the 
150 years since the Fourteenth Amendment’s 
enactment, the battle against discrimination in the 
jury selection process has resembled nothing so much 
as Hercules’ battle against the many-headed Hydra. 
Blackstone warned of “secret machinations” to erode

3 See Albert W. Alschuler & Andrew G. Deiss, A  Brief History of 
Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 884 
(1994).



7

the right to tria l by a jury “indifferently chosen[,]” 4 
William Blackstone, Commentaries on the Laws of 
England  350 (Phila., J.B. Lippincott Co., 1893). But 
our history is replete with as many open 
machinations as secret ones.

A. Reconstruction’s Collapse Engendered 
Immediate Denial of the Jury-Trial 
Right.

Even at the height of the federal government’s 
attem pt to protect the rights of the freedmen during 
Reconstruction, some jurisdictions managed to avoid 
seating African American jurors.4 Initially, the 
judicial branch pushed back. In 1880, Strauder 
invalidated West Virginia’s explicitly discriminatory 
state statute. See 103 U.S. a t 305, 310, 312. And the 
next year, Neal v. Delaware vacated a conviction 
where—despite a facially neutral jury-selection 
sta tu te—African Americans had been “uniform[ly] 
exclu[ded]” from jury service in the state. 103 U.S. 
370, 389-90 394, 396-97 (1881). But the Court issued 
those decisions as Reconstruction ground to a halt, 
and the states of the former Confederacy seized the 
opportunity to devise new ways to suppress jury- 
service and jury-trial rights as they simultaneously 
suppressed the right to vote. See, e.g., Batson, 476 
U.S. at 103 (Marshall, J, concurring).

Mississippi was an innovator in both realm s.5 Its 
concurrent attacks on jury and voting rights are 
evidenced in Williams v. Mississippi, 170 U.S. 213

4 Id. a t 887.
5 See Morton Stavis, A  Century of Struggle for Black 
Enfranchisement in Mississippi: From the Civil War to the 
Congressional Challenge of 1965—And Beyond, 57 Miss. L.J. 
591, 602-07 (1987).



8

(1898), which concerned a challenge to a m urder 
conviction obtained after indictment by an all-white 
jury. See id. a t 213-14 (syllabus). The drafters of 
Mississippi’s 1890 constitution wished “to obstruct 
the exercise of the franchise” by African Americans 
“within the field of permissible action” under the 
federal constitution. Id. a t 222 (quoting Ratcliff v. 
Beale, 20 So. 865, 868 (Miss. 1896)). The drafters also 
wanted to prevent African Americans from serving on 
juries. They accomplished both goals by vesting 
discretion in registrars regarding eligibility to vote, 
pegging eligibility for jury service to tha t 
determination, and then providing by statu te  tha t 
selected jurors be of “good intelligence, sound 
judgment, and fair character. Id. a t 217 n .l  (syllabus), 
220-23. For both voting and jury-service rights, 
registrars exercised th a t discretion in a predictable, 
discriminatory way. Nevertheless, this Court failed to 
invalidate this suppressive tactic, reasoning th a t the 
law “reach[ed] weak and vicious white men as well as 
weak and vicious black men” and demanding difficult - 
to-obtain evidence regarding “how or by what means” 
the scheme actually worked in a discriminatory 
manner. Id. at 222-23. Williams unleashed a flood of 
copycats as states scrambled to employ similar means 
to disfranchise African Americans and deny them  the 
right to serve on juries.6

The recalcitrant states desired all-white juries for 
the same reason they wanted an all-white electorate: 
“the perpetuation of white supremacy within the legal

6 Douglas L. Colbert, Challenging the Challenge: Thirteenth 
Amendment as a Prohibition Against the Racial Use of 
Peremptory Challenges, 76 Cornell L. Rev. 1, 77-78 (1990).



9

system depended substantially on the preservation of 
all-white juries.”7 Their goal was to “punishj] black 
defendants particularly harshly, while 
simultaneously refusing to punish violence by whites 
. . . against blacks and Republicans.” Pena-Rodriguez 
v. Colorado, 137 S. Ct. 855, 867 (2017). They 
succeeded. During this period of largely unchecked 
race-based terrorism  in the South, see id., “all-white 
juries” repeatedly “acquitted or failed to indict whites 
suspected of killing blacks.”8 Conversely, for Black 
defendants, all-white juries reliably convicted on 
petty-crime charges, guaranteeing continued 
economic exploitation.9 And, in cases where Black 
defendants escaped lynching, all-white juries in 
capital cases ensured th a t they met death with a 
patina of legality.10 Without federal judicial, 
executive, or legislative support, jury-service and 
jury-trial rights were effectively eliminated for 
African Americans.

7 Michael J. Klarman, The Racial Origins of Modern Criminal 
Procedure, 99 Mich. L. Rev. 48, 62 (2000); see also Thomas Ward 
Frampton, The Jim  Crow Jury, 71 Vand. L. Rev. 1593, 1595 
(2018).
8 Jam es Forman, Jr., Juries and Race in the Nineteenth Century, 
113 Yale L. J. 895, 918, 931 (2004); see also id. a t 931-33; 
Colbert, supra note 6, a t 79 & n.396, 86-87; cf. Peha-Rodriguez, 
137 S. Ct. a t 867 (describing acquittal of all 500 white defendants 
charged with killing African Americans in Texas in 1865-1866).
9 Forman, supra note 8, a t 915—16; see also W.E.B. Du Bois, 
Black Reconstruction in America, 167-180 (1962).
10 See Douglas L. Colbert, Liberating the Thirteenth Amendment, 
30 Harv. C.R.-C.L. Rev. 1, 44 & nn.267-68 (1995); Colbert, supra 
note 6, a t 79, 86-87.



10

B. The States Innovated to Elude This 
Court’s Decisions Combatting Post- 
Reconstruction Jury-Service
Suppression.

After several decades in which African American 
jury participation reached a nadir, this Court 
recalibrated its willingness to look behind facially 
neutral justifications for decreased participation. In 
Norris v. Alabama, the Court considered two counties 
in which no witness could recall African Americans 
ever serving on juries. 294 U.S. 587, 591—92, 596—99 
(1935).11 Looking past Alabama’s “general assertions” 
th a t it simply could not find qualified jurors, the 
Court determined to “inquire not merely w hether [a 
federal right] is denied in express term s but also 
whether it was denied in substance and effect.” Id. a t 
590, 598. Applying th a t more rigorous review, it 
invalidated the challenged conviction. See id. a t 596, 
599. Similarly, Hill v. Texas vacated a conviction 
obtained pursuant to a facially neutral practice of 
grand-jury commissioners summoning persons “with 
whom they were acquainted and whom they knew to 
be qualified to serve,” where the commissioners for

u  Norris was one of this Court’s “Scottsboro cases,” in which nine 
Black youths were accused of raping two white women on a 
northern Alabama train. See Michael J. Klarman, Scottsboro, 93 
Marq. L. Rev. 379, 379 (2009). In  “hastily arranged trials,” with 
the specter of lynching looming, eight were given death 
sentences. See id. a t 379-81. By the time this Court heard 
Norris, one of the accusers had recanted, see id. a t 401, and today 
it is accepted th a t the youths were innocent, see id. a t 52 n.13, 
79; John Edmond Mays & Richard S. Jaffe, History Corrected- 
the Scottsboro Boys Are Officially Innocent, Champion (Mar. 
2014), https://www.nacdl.org/Champion.aspx?id=32656.

https://www.nacdl.org/Champion.aspx?id=32656


11

years “consciously omitted to place” any Black 
person’s name on the jury list. 316 U.S. 400, 401—02, 
04 (1942).

These cases did not make new law so much as 
reinvigorate old law. See, e.g., id. at 405 (relying on 
the rule laid down in 1881’s Neal v. Delaware). But, 
ra ther than  comply with the Court’s new willingness 
to enforce the rights of potential jurors, states 
modified their discriminatory practices yet again.12 
One Southern attorney’s response to Norris in the 
New York Times is emblematic: “[t]here are enough 
legal loopholes and hum an ingenuities on hand to 
keep [African Americans] excluded . . . for a long time 
to come.”13 The Charleston News and Courier flatly 
declared in an editorial th a t Noi'ris would be 
“evaded,” as the Fourteenth Amendment was ‘“not 
binding upon [the] honor or morals of the South.’”14

Two main tactics were employed. First, some 
states interpreted the new cases as simply prohibiting 
the total exclusion of Black persons from jury pools, 
and thus worked to ensure tha t some—but as few as 
possible—Black persons entered the jury pool. For 
example, in Akins v. Texas, Dallas County’s grand- 
jury commissioners conceded th a t their “intentions 
were to get just one [African American] on the grand 
jury[.]” 325 U.S. 398, 406 (1945). Indeed, after Hill,

12 Jeffrey S. Brand, The Supreme Court, Equal Protection, and  
Jury Selection: Denying that Race Still Matters, 1994 Wis. L. 
Rev. 511, 556 (1994).
13 Id. a t 564 n.265 (quoting Alabama Seeks End of Scottsboro 
Case, N.Y. Times, Nov. 17, 1935, a t D7).
14 Klarman, supra note 11, a t 410 (quoting various News and 
Courier editorials) (alteration in original).



12

for 21 successive panels between 1942 and 1947, 
Dallas County’s grand juries had no more than  one 
and sometimes no African Americans. See Cassell v. 
Texas, 339 U.S. 282, 293 (1950) (Frankfurter, J., 
concurring).

Second, deviation from the policy of total 
exclusion raised the specter of African American 
jurors slipping on to petit juries.15 To address tha t 
eventuality, states began to lean on the
discriminatory peremptory strike.

Swain v. Alabama  illustrates this tactical shift. In 
the 1950s and early 1960s in Alabama’s Talladega 
County, African Americans were still 
underrepresented on venires, likely because of efforts 
like those employed in Dallas County to limit their 
presence in the jury pool. See 380 U.S. 202, 205-06, 
208. While petit jury venires did have an average of 
six to seven African Americans per venire, no African 
Americans actually served as petit jurors, including 
on Swain’s petit jury. See id. a t 205—06. The Court 
rebuffed Swain’s challenge to the peremptory strike, 
emphasizing tha t tactic’s “old credentials,” and 
refusing to hold th a t striking African Americans “in a 
particular case” could deny equal protection. Id. at 
212, 221. Swain  suggested, however, th a t systematic 
peremptory use to remove African Americans “in case 
after case, whatever the circumstances” might raise 
constitutional concerns. Id. at 223.

In practice, th a t suggestion proved inadequate to 
prevent the discriminatory use of peremptory 
challenges over the next twenty-one years. See, e.g.,

15 Colbert, supra note 6, a t 85 & n.424.



13

Batson, 476 U.S. a t 103-04 (Marshall, J., concurring). 
In fact, only two defendants satisfied Swain  during 
this period.16 Observing tha t Swain  had imposed a 
“crippling burden of proof,” Batson overruled it, 
holding th a t a single peremptory strike can be 
challenged as discriminatory and developing a 
burden-shifting framework to guide the inquiry into 
the question of discrimination. Batson, 476 U.S. at 
93-98.

C. Jury Discrimination Remains Common 
After Batson.

Batson represented a significant step forward. 
But even as it was decided, Justice M arshall warned 
th a t it “w[ould] not end the illegitimate use of the 
peremptory challenge.” Id. a t 105 (Marshall, J., 
concurring). As he pointed out, it is easy to “assert 
facially neutral reasons for striking a juror,” and if 
mere facial neutrality suffices to discharge the 
prosecution’s burden, Batson s “protection . . . may be 
illusory.” Id. a t 106; see also Miller-El v. Dretke, 545 
U.S. 231, 240 (2005) (“If any facially neutral reason 
sufficed to answer a Batson challenge, then Batson 
would not amount to much more than  Swain.”). For 
this reason, sometimes courts must “look[| beyond the 
case at hand” to “all relevant circumstances” to 
resolve a Batson issue. Miller-El, 545 U.S. at 240.

Legal scholars and members of this Court have 
catalogued ream s of evidence that “the discriminatory 
use of peremptory challenges rem ains a problem.” 
Miller-El, 545 U.S. at 268 (Breyer, J., concurring); see

16 Karen M. Bray, Comment, Reaching the Final Chapter in the 
Story of Peremptory Challenges, 40 U.C.L.A. L. Rev. 517, 530 
n.63 (1992).



14

id. a t 267-69 (collecting studies and evidence 
regarding persistence of discriminatory peremptory 
strikes). An article published this year reviewed 
seven published empirical studies th a t evaluated 
Batson, all of which “concur in the basic finding . . . 
th a t prosecutors disproportionately use peremptory 
strikes to exclude black jurors.”17

To note just a subset of the evidence:
• A 2010 report by the nonprofit Equal Justice 

Initiative detailed the prevalence of the 
discriminatory peremptory, including 
common disingenuous “neutral” reasons for 
strikes and the lack of lasting consequences 
for prosecutors found to have violated 
Batson.18 Mississippi’s prosecutors have been 
repeated culprits.19

• A 2012 study examining peremptory strikes 
in capital tria ls of all defendants on North 
Carolina’s death row as of July 1, 2010, found 
th a t “prosecutors struck eligible black venire 
members at about 2.5 times the rate” they 
struck non-Black eligible venire members.20

17 Frampton, supra note 7, a t 1624 & n. 178 (collecting studies 
and other resources containing empirical findings on Batson)
18 See Equal Justice Initiative, Illegal Racial Discrimination in
Jury Selection: A  Continuing Legacy 16—18, 21, 24, 28 (Aug. 
2010) (hereinafter “E JI Report”),
https://eji.org/sites/default/files/illegal-racial-discrimination-in-
jury-selection.pdf.
19 See, e.g., id. a t 20, 23-24, 28, 29 (Montgomery County).
20 Catherine M. Grosso & B arbara O’Brien, A  Stubborn Legacy: 
The Overwhelming Importance of Race in Jury Selection in 173 
Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 
1531, 1533 (2012).

https://eji.org/sites/default/files/illegal-racial-discrimination-in-


15

• A 2017 study covering South Carolina capital 
cases between 1997-2012 found 
disproportionate strikes of Black potential 
jurors—“35% of black strike-eligible venire 
members” were excluded, compared to “12% of 
white strike-eligible venire members[.]”21

• A 2018 study, which covered 1306 North 
Carolina felony tria ls in 2011, found that 
prosecutors exercised peremptory strikes 
against Black jurors “at more than  twice the 
rate that they excluded white jurors [.]”22

• Between 2011 and 2017, investigative 
journalists in Louisiana compiled a dataset 
pegged to over 5000 criminal trials in that 
state.23 Their data shows tha t “prosecutors 
disproportionately strike black jurors no 
m atter who they are prosecuting,” and strike 
Black jurors more frequently when a Black 
person is the defendant.24

• A 2015 study using data collected from over 
300 felony trials between 2003 and 2012 in 
Louisiana’s Caddo Parish found that 
prosecutors struck Black jurors “at three

21 Ann M. Eisenberg et. al., I f  It Walks Like Systematic Exclusion 
and Quacks Like Systematic Exclusion: Follow-Up on Removal 
of Women and African-Americans in Jury Selection in South 
Carolina Capital Cases, 1997-2014, 68 S.C. L. Rev. 373, 380 
(2017).
22 Ronald F. Wright et. al., The Jury Sunshine Project: Jury  
Selection Data as a Political Issue, 2018 U. 111. L. Rev. 1407, 
1419, 1422, 1426 (2018).
23 See F rampton, supra note 7, a t 1620-21 (describing data set 
and study methodology).
2“ Id. a t 1628.



16

times the rate of [non-Black jurors].”25 A 
study of 390 felony tria ls in Louisiana’s 
Jefferson Parish between 1994 and 2002 also 
found th a t prosecutors struck Black 
prospective jurors at three times the rate they 
struck non-Black prospective jurors.26 27

These stark  facts are now predictable. Ju s t as 
“reliance solely on the good faith of prosecutors [was] 
misguided in light of the history of peremptory 
challenges in the period between Swain  and 
Batson[,]”21 it rem ains misguided in light of the 
history of strikes since Batson. If Batson is to have 
any meaning, the Court m ust continue to adhere to 
its promise in Norris to examine “not merely whether 
[rights were] denied in express term s but also 
whether [they were] denied in substance and effect.” 
294 U.S. a t 590. An examination of all relevant facts 
shows th a t they were denied in Curtis Flowers’ sixth 
trial.

25 U rsula Noye, Blackstrikes: A  Study of the Racially Disparate 
Use of Peremptory Challenges by the Caddo Parish District 
Attorney’s Office 2 (Aug. 2015), https://perma.cc/EE7P-HUXJ.
26 See Robert J. Smith & Bidish J. Sarma, How and Why Race 
Continues to Influence the Adm inistration of Criminal Justice in 
Louisiana, 72 La. L. Rev. 361, 387 & nn. 146—147 (2012) (citing 
Richard Bourke, Joe Hingston & Joel Devine, La. Crisis 
Assistance Ctr., Black Strikes: A  Study of the Racially Disparate 
Use of Peremptory Challenges by the Jefferson Parish District 
Attorney's Office (2003)).
27 B rett M. Kavanaugh, Note, Defense Presence and 
Participation: A  Procedural M inim um  for Batson v. Kentucky 
Hearings, 99 Yale L.J. 187, 199 (1989).

https://perma.cc/EE7P-HUXJ


17

III. WINONA AND THE FIFTH JUDICIAL 
DISTRICT HAVE A LONG HISTORY OF 
DENYING AFRICAN AMERICANS EQUAL 
RIGHTS.
As in any case concerning purposeful 

discrimination, the context m atters. See Batson, 476 
U.S. a t 93 (requiring “‘a sensitive inquiry into such 
circum stantial and direct evidence of intent as may be 
available’”) (quoting Arlington Heights v. Metro. 
Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). Here, 
th a t context is comprised in significant pa rt by the 
history of racial discrimination in Winona and the 
Fifth Judicial District.

White residents of Winona and the Fifth Judicial 
District have long endeavored to deny African 
Americans full citizenship. These efforts—often led or 
facilitated by local officials—ranged from brutal 
violence and economic coercion to abuse of 
government power.

In 1937, a particularly heinous lynching in 
Winona spurred the United States House of 
Representatives to pass a rare anti-lynching bill.28 
After police arrested two African American men for 
the m urder of a white man, a mob seized the men from 
the Winona courthouse and blow-torched them  to 
death before a crowd of 300-400 men, women, and 
children.29 According to an NAACP investigator, the

28 The Congress: Black’s White, Time (Jan. 24, 1938),
http://content. time, com/time/subscriber/article/0,33009,758933- 
2,00.html.
29 Howard Kester, Lynching by Blow Torch 2-4 (Apr. 13, 1937), 
https://finding-aids.lib.unc.edU/03834/#folder__217#l.

http://content
https://finding-aids.lib.unc.edU/03834/%23folder__217%23l


18

sheriff and district attorney made no effort to identify 
or prosecute the m urderers even though the 
abduction occurred in front of the district attorney 
and Mississippi’s Secretary of State, and “[t]here are 
a thousand people in Montgomery County who can 
name the lynchers.”30 Based on his interviews, he 
observed tha t “[t]he citizens . . . seem[ed] ra ther well 
pleased with themselves.”31

In 1955, 14-year-old Em m ett Till met a similar 
fate. Following a tra in  ride from Chicago, Mr. Till 
disembarked at the Winona station and traveled 30 
miles east to his cousin’s house.32 While visiting his 
relatives, Mr. Till entered a local grocery store, and 
may have whistled at or near a white woman who 
worked there.33 The woman took offense, and a few 
days later, her husband and friends kidnapped Mr. 
Till from his great uncle’s home.34 They proceeded to 
pistol-whip and shoot him before tying his neck to a 
gin fan with barbed wire and dumping him into the 
Tallahatchie River.35 Two of the perpetrators were

30 Id. a t 4, 7.
31 Id. a t 8.
32 Jackson House, This Boy's Dreadful Tragedy: Em mett Till as 
the Inspiration for the Civil Rights Movement, 3 Tenor of Our 
Times, art. 4, 14-15 (2014).
33 FBI, Prosecutive Report of Investigation Concerning Roy
Bryant, et al. 6 (Feb. 9, 2006),
https://staticl.squarespace.com/static/55bbe8c4e4b07309dc53b0 
0f/t/55c03e28e4b06f6d00a58dl3/1438662184287/Emmett+Till+ 
FBI+Transcript.pdf (hereinafter “FBI Report”).
34 See id.
35 See House, supra note 32, a t 17; Parker Yesko, Acquitting
Em m ett T ill’s Killers, Am. Pub. Media (June 5, 2018) 
(hereinafter “APM”),

https://staticl.squarespace.com/static/55bbe8c4e4b07309dc53b0


19

charged with the m urder and tried before an all-white 
jury.36 Before jury deliberations occurred, “[e]very 
juror [was] visited by members of the [White 
Citizens’] Council to make sure they . . . voted ‘the 
right way.’”37 The jurors heeded the message and 
acquitted the defendants in an hour and five 
m inutes.38 ‘“If we hadn’t  stopped to drink pop,’ one 
juror said in an interview, ‘it wouldn’t have took that 
long.’”39

The role of the White Citizens’ Council in the Till 
tria l represented one small part of its pro-segregation 
activities. From its inception in 1954 until the 1970’s, 
the Council spearheaded white resistance to 
integration in Mississippi and much of the South. 
Dubbed the “uptown Klan” by Thurgood M arshall,40 
the Citizens Council was founded in Indianola, 
Mississippi just weeks after the Supreme Court 
decided Brown v. Board of Education A1 Three months 
later, the group formed a state of association of 
councils headquartered in Winona.42 The group’s

https://www.apmreports.org/story/2018/06/05/all-white-jury- 
acquitting-emmett-till-killer s ..
36 See House, supra note 32, a t 23 (citation omitted).
37 FBI Report a t 17 (citation omitted).
38 See Yesko, supra note 35.
3̂  Id.
40 Southern Poverty Law Ctr., Council of Conservative Citizens, 
https://www.splcenter.org/fighting-hate/extremist- 
files/group/council-conservative-citizens (last visited Dec. 19, 
2018).
41 Jared  A. Goldstein, The Khan's Constitution, 9 Ala. C.R. & 
C.L.L. Rev. 285, 344-45 (2018).
42 Citizen’s Council/ Civil Rights Collection 1954-1977, 1987- 
1992, Univ. of S. Miss. -  McCain Library & Archives,

https://www.apmreports.org/story/2018/06/05/all-white-jury-acquitting-emmett-till-killer
https://www.apmreports.org/story/2018/06/05/all-white-jury-acquitting-emmett-till-killer
https://www.splcenter.org/fighting-hate/extremist-files/group/council-conservative-citizens
https://www.splcenter.org/fighting-hate/extremist-files/group/council-conservative-citizens


20

founder, Robert Patterson, explained his reason for 
founding the Council as such: “Integration represents 
darkness . . . totalitarianism  . . . and destruction. 
Segregation represents . . . the survival of the white 
race. These two ideologies are now engaged in mortal 
conflict and only one can survive.”43

Funded by the State of Mississippi itself,44 the 
Citizens’ Council was largely composed of the white 
power structure: “bankers, merchants, judges,
newspaper editors and politicians.”45 Indeed, its 
“titu lar spokesman” was Senator Jam es Eastland,46 
and “the philosopher” of the group was Mississippi 
Supreme Court Justice Thomas Pickens Brady.47 
“Sanctioned by Mississippi’s political elites, the 
sta te’s White Citizens’ Councils embarked on an oft- 
violent campaign to suppress civil rights agitation 
and to quell African American political participation. 
As one white Mississippian proclaimed: ‘There’s open

http://lib.usm.edu/spcol/collections/manuscripts/finding_aids/m 
099.html (last visited Dec. 19, 2018).
43 Thomas B. Edsall, With “Resegregation,” Old Divisions Take
New Form, Wash. Post (Mar. 9, 1999),
https://www.washingtonpost.com/archive/pohtics/1999/04/09/wi 
th-resegregation-old-divisions-take-new-form/2bff9044-b356- 
4115-bllf-a9al56dlec5c/?utm_term=.f8f7650031b2_.
44 Citizen’s Council/ Civil Rights Collection, supra note 42.
45 Southern Poverty Law Ctr., supra note 40.
46 Ruth Bloch Rubin & Gregory Elinson, Anatomy of Judicial 
Backlash: Southern Leaders, Massive Resistance, and the 
Supreme Court, 1954-1958, 43 Law & Soc. Inquiry 944, 964-65 
(2018).
47 Emily Prifogle, Law and Local Activism: Uncovering the Civil 
Rights History of Chambers v. Mississippi, 101 Cal. L. Rev. 445, 
508 (2013).

http://lib.usm.edu/spcol/collections/manuscripts/finding_aids/m
https://www.washingtonpost.com/archive/pohtics/1999/04/09/wi


21

season on the negroes now.’”48 The group’s presence 
was particularly strong in Winona. As a local election 
commissioner there explained, “You have to 
remember till about 1978, you couldn’t get elected if 
you wanted to run for state representative unless you 
were approved by the White Citizens’ Council.”49

The Council did not act alone. The Winona Police 
also acted as violent, armed enforcers of segregation. 
In August 1960, an African American college student 
attem pted to ride in the front of a bus from A tlanta to 
Jackson, Mississippi.50 When the bus stopped in 
Winona, the sheriff and his deputy were waiting for 
the student.51 They beat him with a blackjack and 
their fists and were joined by a group of white 
civilians.52 After the beating, the officers arrested the 
victim on a charge of disturbing the peace.

The following year, the Winona police beat 
another African American m an in the basem ent of the 
City Hall.53 When the m an’s white, pro-segregation 
employer spoke to the police on his behalf, the police

48 Rubin & Elinson, supra note 46, at 964—65.
49 Parker Yesko, Letter from Winona: A  year at the crossroads of
M ississippi,” APM (May 1, 2018),
https://www.apmreports.org/story/2018/05/01/winona-a-town- 
at-the-crossroads.
50 John Herbers, City Negro Beaten Up, Panel Told, Delta
Democrat-Times (Sept. 26, 1961),
https://www.newspapers.com/image/21581794.
« Id.
52 Id.
53 Tom Scarbrough, Miss. State Sovereignty Comm’n, Winona— 
Montgomery County, Miss. Dep’t  of Archives & History (Feb. 23, 
1962), https://bit.ly/2STDGYG.

https://www.apmreports.org/story/2018/05/01/winona-a-town-at-the-crossroads
https://www.apmreports.org/story/2018/05/01/winona-a-town-at-the-crossroads
https://www.newspapers.com/image/21581794
https://bit.ly/2STDGYG


22

beat the man a second tim e.54 His employer then 
broached the m atter with the FBI because “he wanted 
. . . to stop the whipping of his Negroes for apparently 
no reason at all.”55

In June of 1963, the Winona police garnered 
national attention for their violent opposition to civil 
rights for African Americans. The police arrested 
Fannie Lou Hamer, a field secretary for the Student 
Nonviolent Coordinating Committee (hereinafter 
“SNCC”), and several of her colleagues after their bus 
stopped in Winona. A few bus riders had attem pted to 
use the bathroom in a nearby restaurant, prompting 
the chief of police to expel Ms. Ham er’s colleagues and 
arrest the entire group.56 Ms. Hamer was taken to the 
county jail, where a state highway patrolm an 
informed her, “[w]e are going to make you wish you 
was dead.”57 The officer then ordered two inm ates to 
beat her with a blackjack until they stopped from 
exhaustion.58 Ms. Hamer was left with perm anent 
damage to her kidney and a blood clot in the artery of 
her left eye.59 One of Ms. Ham er’s out-of-town 
colleagues from SNCC called the Winona police 
station to ask how he could secure bail for the group

54 See id.
55 See id. a t 5.
56 Fannie Lou Hamer, Testimony Before the Credentials 
Committee, Democratic National Convention, Atlantic City, 
New Jersey, APM: Say It Plain Series (Aug. 22, 1964),
http://americanradioworks.publicradio.org/features/sayitplain/fl
hamer.htm l.
57 Id.
58 Id.
59 Janice Hamlet, Fannie Lou Hamer: The Unquenchable Spirit 
of the Civil Rights Movement, 26 J. of Black Studies 560, 565 
(1996).

http://americanradioworks.publicradio.org/features/sayitplain/fl


23

and was told to come to the station in person.60 Upon 
his arrival, he was arrested for “disturbing the peace” 
and then subjected to a four-hour beating by the local 
police, the sheriff, and the mayor of Winona.61 The 
police then charged him with the m urder of two men 
whom he did not know.62

The next year, Ms. Ham er spoke at the 
Democratic National Convention, using her 
experience at the hands of the Winona police to 
emphasize the importance of voting rights;63 however, 
national attention failed to stop the Winona police or 
quell the anti-Black violence. In 1965, the Sheriff 
asked a landlord to evict local civil rights workers 
from their house.64 When the owner failed to do so, 
four men fired shots into the house.65

The following year, a different city in the Fifth 
Judicial District captured national attention for its 
anti-Black violence: Grenada, where Doug Evans’ 
office is located and where Mr. Evans was then a

60 Stavis, supra note 5, a t 652 n.263.
si Id.
62 Id. a t 653 n.263.
63 Nicholas Targ, Human Rights Hero Fannie Lou Hamer (1917- 
1977), Hum. Rts., Spring 2005, a t 25-6. At the time, only 6.7% 
of nonwhite M ississippians were registered to vote—a number 
th a t was orders of magnitude lower than  any other Southern 
state. U.S. Comm’n on Civil Rights, Political Participation 222 
(1968).
64 Incident Sum m ary -  Mississippi, Student Nonviolent
Coordinating Committee, Lucile Montgomery Papers, 1963- 
1967; Freedom Summer Digital Collection, Univ. of Wis. 
(Jan. 1965),
http://content.wisconsinhistory.org/cdm/ref/collection/pl5932col 
12/id/35295.
65 See id.

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24

senior in high school. At the time, Grenada was 
known as a “segregation stronghold,” and only 3% of 
African American residents were registered to vote.66 
After Jam es M eredith’s March Against Fear passed 
through town in June of 1966, African American 
residents of Grenada spent the summer marching 
peacefully for their rights while white residents 
assaulted them. The police stood by or used their 
powers to arrest and harass African American 
protesters.67 The New York Times described one 
representative m arch as follows: “Civil rights
demonstrators were pelted with bricks, bottles and 
firecrackers tonight while state and local law- 
enforcement officials stood by, laughing and 
chuckling.”68

White segregationists ratcheted up their violent 
defense of Jim  Crow later th a t summer after a federal 
court ordered Grenada to integrate its public schools. 
On the first day of school, white mobs led by the KKK 
surrounded the elementary and high schools while 
pick-up trucks equipped with two-way radios scoured 
the streets for African-American schoolchildren who 
could be targeted.69 The mob beat the children with 
various weapons, and initially barred more than  half 
of African American children from reaching the

66 Bruce Hartford, Grenada Mississippi— Chronology of a 
Movement (1967), https://www.crmvet.org/info/grenada.htm.
67 See generally id.
68 Gene Roberts, White Mob Routs Grenada Negroes, N.Y. Times
(Aug. 10, 1966),
https://timesmachine.nytimes.com/timesmachine/1966/08/10/iss 
ue.html?action=click&contentCollection=Archives&module=Art 
icleEndCTA&region=ArchiveBody&pgtype=article.
69 See Hartford, supra, note 66.

https://www.crmvet.org/info/grenada.htm
https://timesmachine.nytimes.com/timesmachine/1966/08/10/iss


25

school.70 When the school day ended, “[a] throng of 
angry whites wielding ax handles, pipes and chains” 
greeted the departing students and beat them 
further.71

White Grenada residents failed to halt 
integration, but violent harassm ent continued. As 
detailed in a 1966 letter from LDF attorneys to the 
parents of African American students in Grenada 
schools, “your children . . . have been subject to all 
sorts of violence, intimidation, and abuse,” including 
white students who “bring knives, brass knuckles, 
and other weapons to school,” and teachers who “callO 
them  ‘niggers,’” and “explicitly urgeQ the white 
students to inflict physical harm  on the Negro 
students.”72

The Grenada city government—including the 
police departm ent where Doug Evans worked as an 
officer in the 1970s—also brazenly defied federal civil 
rights laws.73 In 1977, the Northern District of 
Mississippi enjoined the city from continuing its 
racially discriminatory hiring, training, and 
promotion practices. The city’s response did not honor

70 See id.
71 AP, Grenada Negroes Beaten at School, N.Y. Times (Sept. 13, 
1966),
https://timesmachine.nytimes.com/timesmachine/1966/09/13/79 
311321 .html?action=click&contentCollection:=Archives&module 
=ArticleEndCTA&region=ArchiveBody&pgtype=article&pageN 
um ber=l.
72 Letter from Paul Brest, Miriam Wright, and Iris Brest to
parents (Dec. 20, 1966),
https://www.crmvet.org/docs/6612_grenada_parents-letter.pdf.
73 Neely v. City of Grenada, 438 F. Supp. 390, 408 (N.D. Miss. 
1977).

https://timesmachine.nytimes.com/timesmachine/1966/09/13/79
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26

the spirit of the injunction. Grenada hired more 
African American police officers, but the police 
departm ent forbade them  from arresting white 
residents.74 If an African American officer pulled over 
a white driver for violating the law, he was required 
to call a white officer to address the situation.75

Overt discrimination rem iniscent of the Jim  Crow 
era persists in Mississippi’s Fifth Judicial District 
today. As de jure segregation ended, membership in 
the White Citizens’ Council waned. Then, in 1985, 
Gregory Baum, an ex-field director from the Citizens’ 
Council formed a new organization from the 
membership lists of the old organization: the Council 
of Conservative Citizens (hereinafter “CCC”). The 
CCC shared its white supremacist DNA with the old 
Citizens’ Councils, but it shifted its focus to the 
dangers of “race-mixing”—an act of “rebelliousness 
against God,”76 per the group’s website—and “black- 
on-white crime,” which has been a particular 
fascination of the CCC.77 In the view of Baum, whose 
organization has called African Americans a 
“retrograde species of hum anity,”78 “[i]t’s almost an 
open w ar on whites.”79

74 In  the Dark Season Two, Episode 8: The D.A., APM Reports 
(June 12, 2018).
75 See id.
76 Southern Poverty Law Ctr., supra note 40.
77 Donna Ladd, From Terrorists to Politicians, the Council of
Conservative Citizens Has a Wide Reach, Jackson Free Press 
(June 22, 2015),
http://www.jacksonfreepress.com/news/2015/jun/22/terrorists- 
politicians-council-conservative-citizeA
78 Southern Poverty Law Ctr., supra note 40.
79 See Ladd, supra note 77.

http://www.jacksonfreepress.com/news/2015/jun/22/terrorists-politicians-council-conservative-citizeA
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27

Like its predecessor the Citizens’ Council, the 
CCC has attracted considerable support from 
W inona-area politicians. In 1991, Doug Evans—who 
has been described as a “racist white suprem acist” by 
the former mayor of his hometown80—delivered the 
keynote address at a CCC meeting in Webster 
County.81 The following year, he attended a CCC 
speech on “the historical background of the ‘civil 
rights movement”’ given by Robert Patterson, the 
founder of the White Citizens Council, and also spoke 
at the event.82 In addition, Mr. Evans campaigned 
th a t year at the CCC-sponsored Black Hawk Political 
Rally. The rally benefited the Black Hawk Bus 
Association, which transported white children to a 
segregation academy tha t had been created in 
response to the integration of the local schools.83

Other politicians representing the Fifth Judicial 
District have also spoken at CCC events. At a 
minimum, former state representatives Dannie Reed 
and Bobby Howell, current state representative Jim  
Beckett, former Mississippi Supreme Court Justice 
Kay Cobb (who sat on Flowers v. Mississippi, 947 So.

80 Paul Alexander, For Curtis Fl.owers, Mississippi Is Still
Burning, Rolling Stone (Aug. 7, 2013),
https://www.rollingstone.com/politics/politics-news/for-curtis- 
flowers-mississippi-is-still-burning-188496/.
81 See id.
82 See id.; see also Alan Bean, Doug Evans and the Mississippi
Mainstream, Friends of Justice (Oct. 20, 2009),
https://friendsofjustice.blog/2009/10/20/doug-evans-and-the- 
mississippi-mainstreamA
83 Parker Yesko, The rise and reign of Doug Evans, APM (June 
26, 2018), 
http://explorerproducer.lunchbox.pbs.org/blogs/pmp/the-rise- 
and-reign-of-doug-evansA

https://www.rollingstone.com/politics/politics-news/for-curtis-flowers-mississippi-is-still-burning-188496/
https://www.rollingstone.com/politics/politics-news/for-curtis-flowers-mississippi-is-still-burning-188496/
https://friendsofjustice.blog/2009/10/20/doug-evans-and-the-mississippi-mainstreamA
https://friendsofjustice.blog/2009/10/20/doug-evans-and-the-mississippi-mainstreamA
http://explorerproducer.lunchbox.pbs.org/blogs/pmp/the-rise-and-reign-of-doug-evansA
http://explorerproducer.lunchbox.pbs.org/blogs/pmp/the-rise-and-reign-of-doug-evansA


28

2d 910 (Miss. 2007)), and current state senators Gary 
Jackson and Lydia Chassaniol have all spoken at 
CCC events.84 In 2009, Chassaniol, who is a CCC 
member, “gave a rabble-rousing speech on ‘Cultural 
Heritage in M ississippi” to the group’s national 
convention.85

In 2012, the CCC came to the attention of Dylann 
Roof. Following George Zimmerman’s trial for the 
killing of Trayvon M artin, Roof googled “black on 
White crime.”86 The first website he found was the 
Council of Concerned Citizens, and, in his words, “I 
have never been the same since tha t day.”87 “There 
were pages and pages of these brutal black on White 
murders. . . .  At this moment I realized tha t 
something was very wrong.”88 Roof proceeded to 
m urder nine African American congregants while 
they prayed in church three years later.89 The CCC 
condemned Roofs violence but not his views. Its 
president, Earl Holt III, issued a statem ent th a t 
noted:

84 Southern Poverty Law Ctr., Dozens of Politicians Attend  
Council of Conservative Citizens Events, Intelligence Report (Oct. 
14, 2004), https://www.splcenter.org/fighting-hate/intelligence- 
report/2004/dozens-politicians-attend-council-conservative- 
citizens-events; Southern Poverty Law Ctr., supra note 40.
85 See id.
86 Dylann Roof’s Manifesto, N.Y. Times (Dec. 13, 2016), 
http  s ://w w w. ny time s. com/inter active/2016/12/13/univer s aP docu 
ment-Dylann-Roof-manifesto.html.
81 Id.
88 Id.
89 Alan Blinder & Kevin Sack, Dylann Roof Is Sentenced to Death 
in Charleston Church Massacre, N.Y. Times (Jan. 10, 2017), 
https://www.nytimes.com/2017/01/10/us/dylann-roof-trial- 
charleston.htm l.

https://www.splcenter.org/fighting-hate/intelligence-report/2004/dozens-politicians-attend-council-conservative-citizens-events
https://www.splcenter.org/fighting-hate/intelligence-report/2004/dozens-politicians-attend-council-conservative-citizens-events
https://www.splcenter.org/fighting-hate/intelligence-report/2004/dozens-politicians-attend-council-conservative-citizens-events
https://www.nytimes.com/2017/01/10/us/dylann-roof-trial-charleston.html
https://www.nytimes.com/2017/01/10/us/dylann-roof-trial-charleston.html


29

It has been brought to the attention of 
the Council of Conservative Citizens 
tha t Dylann Roof—the alleged 
perpetrator of mass m urder in 
Charleston this week—credits the 
CofCC website for his knowledge of 
black-on-white violent crime. This is not 
surprising: The CofCC is one of perhaps 
three websites in the world tha t 
accurately and honestly report black-on- 
white violent crime, and in particular, 
the seemingly endless incidents 
involving black-on-white m urder.90

Rampant affiliation with the CCC is not the only 
sign tha t Winona’s politicians have failed to move 
beyond the area’s troubled history. Last year, Bobby 
Howell’s replacement as state representative, Karl 
Oliver, took to Facebook after learning tha t Louisiana 
intended to remove some Confederate statues.91 
Oliver, who also represents the town where Emmett 
Till was lynched, responded: “If the . . . leadership’ of 
Louisiana wishes to, in a Nazi-ish fashion . . . destroy 
historical monuments of OUR HISTORY, they should 
be LYNCHED!’’92

90 Ladd, supra note 77.
91 Arielle Dreher, State Rep. Karl Oliver Calls for Lynching over 
Statues, Later Apologizes, Jackson Free Press (May 21, 2017), 
http://www.jacksonfreepress.com/news/2017/may/21/report- 
mississippi-rep-karl-oliver-calls-lynching-/.
92 Id.

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30

IV. DOUG EVANS HAS A HISTORY OF 
DISCRIMINATING AGAINST AFRICAN 
AMERICAN JURORS, AND THAT PATTERN 
OF DISCRIMINATION HAS PERSISTED 
THROUGHOUT MR. FLOWERS’ TRIALS.
A. Mr. Evans’ Office Strikes African 

American Jurors at a Much Higher Rate 
Than White Jurors.

A detailed statistical analysis conducted by 
American Public Media Reports (hereinafter “APM 
Reports”) demonstrates tha t Doug Evans and the 
office he runs have systematically denied African 
Americans the right to serve as jurors throughout his 
25 years in office. APM Reports gathered court 
records for all 418 trials conducted by Mr. Evans and 
his office since he was elected District Attorney.93 For 
225 trials, involving 6,763 potential jurors, APM 
Reports was able to collect race data .94 The data 
revealed a marked disparity in the prosecution’s use 
of peremptory challenges. Overall, the State struck 
49.81% of prospective African American jurors and 
11.21% of white jurors.95 In other words, Mr. Evans’ 
office struck African American jurors 4.4 times more 
frequently than  white jurors.

APM Reports attem pted to analyze the data in 
myriad ways to find a geographical area, type of case, 
or circumstance in which African Americans were not

93 Will Craft, Peremptory Strikes in M ississippi’s Fifth Circuit 
Court District, a t 3, APM Reports, 
https://www.apmreports.org/files/peremptory_strike_methodolo 
gy.pdf (last visited Dec. 19. 2018).
94 Id. a t 5.
95 Id. a t 6.

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31

struck at a significantly higher rate than  whites. 
They failed. African Americans were struck more 
frequently in every county in the Fifth Judicial 
District.96 They were struck more frequently in trials 
for minor crimes and more frequently in trials for 
serious crimes.97 When the defendant was white, 
Doug Evans’ office struck African American jurors 
more frequently.98 But, when the defendant was 
Black, the rate of strikes against Black jurors more 
than  doubled as compared to white defendant cases.99

In 89 cases, APM Reports was also able to get full 
tria l transcripts and code jurors’ answers to different 
questions to determine whether their answers 
suggested a nonracial explanation for this pattern  of 
strikes. It did not. To the contrary, when APM 
Reports controlled their regression analysis for the 
answers given, the influence of race increased. 
Simply being African American increased a jurors’ 
chances of being struck by Doug Evans or his office 
6.67 times—a much greater effect than  even knowing 
the defendant or having a family member in law 
enforcement.100

B. Doug Evans’ Actions Throughout the Six 
Curtis Flowers Trials Reveal an Intent to 
Remove as Many African-American 
Jurors as Possible.

Both in and outside the courtroom, Doug Evans 
has worked feverishly to ensure th a t an all- or

96 Id.
97 Id.
98 Id.
99 Id.
100 Id. a t 10.



32

predominantly-white jury decides whether African 
American Curtis Flowers committed a quadruple 
m urder with three white decedents and very weak 
evidence.101 In Mr. Flowers’ first trial, Doug Evans 
obtained an all-white jury by using five peremptory 
challenges on African American jurors.102 The jury 
convicted Mr. Flowers after deliberating for 66 
m inutes.103 In Mr. Flowers’ second trial, Mr. Evans 
again attem pted to strike every African American 
juror; however, the tria l judge determined th a t one of 
the strikes was discriminatory and ordered th a t Mr. 
Evans keep the juror. The resulting jury had eleven 
white members and one African American.104 It, too, 
convicted Mr. Flowers.

In the third trial, Mr. Evans again attem pted to 
remove every African American from the venire. He 
used all fifteen of his strikes—twelve peremptory 
challenges and three alternate challenges—on 
African Americans, yielding a jury with just one 
African American. This jury also convicted Mr. 
Flowers, but the Mississippi Supreme Court 
recognized tha t Mr. Evans’ strikes reflected “as strong 
a p rim a facie case of racial discrimination as we have 
ever seen in the context of a Batson challenge.”105 It 
reversed Mr. Flowers’ conviction, finding th a t two of

101 See generally Pet. for W rit of Cert., Flowers v. Mississippi, No. 
17-9572 (June 21, 2018).
102 Clerk’s Papers (hereinafter “CP”) a t 1656.
103 In  the Dark Season Two: The Trailer (Apr. 16, 2018), 
https://www.apmreports.org/story/2018/04/16/in-the-dark- 
season-two-trailer.

See CP a t 1662.
105 Flower's v. Mississippi, 947 So. 2d 910, 935-36 (Miss. 2007).

https://www.apmreports.org/story/2018/04/16/in-the-dark-season-two-trailer
https://www.apmreports.org/story/2018/04/16/in-the-dark-season-two-trailer


33

Mr. Evans’ strikes were clearly motivated by race and 
three others were suspicious.106

Following consecutive trials in which courts had 
found th a t he eliminated African American jurors 
because of their race, Mr. Evans proceeded to use all 
eleven of the peremptory challenges he exercised to 
strike African Americans at Mr. Flowers’ fourth trial. 
This time, however, the panel’s racial balance more 
closely represented the demographics of Montgomery 
County, and five African American jurors were 
seated. The five African American jurors voted 
unanimously to acquit, the seven white jurors all 
voted to convict, and the judge declared a mistrial.

Nearly the same thing happened in the fifth trial. 
Mr. Evans used all but one of his strikes on African 
American jurors, and the jury hung, with an African 
American juror as the sole hold out.107 At this point, 
Mr. Evans had garnered convictions each time he had 
limited the jury to one African American or fewer, and 
he had failed to secure convictions when more than  
one African American juror was seated.

When the fifth tria l adjourned, the tria l judge 
detained the sole holdout and harangued him in open 
court.108 The judge ordered the bailiffs to arrest the 
juror, claiming—with no apparent factual basis—that 
he had lied during voir dire.109 Mr. Evans then 
pursued the prosecution of the juror who had

106 Id. a t 936.
107 CP 1891; The Trials of Curtis Flowers, APM Reports (June 5, 
2018), https://www.apmreports.org/story/2018/06/05/in-the- 
dark-s2e7.
108 See id.
109 See id.

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34

thw arted his latest effort to convict Mr. Flowers, 
resisting calls to recuse himself because of a conflict 
for the next eight m onths.110 Once Mr. Evans finally 
recused himself, the Mississippi Attorney General’s 
office assumed responsibility for the prosecution and 
asked the court to dismiss the charges.111 The juror’s 
attorney explained the effect of the arrest: “It was a 
completely bogus charge. I believe [the juror] was 
indicted to send a message to future jurors who vote 
for acquittal.”112

Doug Evans also pursued a second path  to 
reducing the odds th a t African Americans would 
serve on the sixth trial: in consultation with Judge 
Loper, Mr. Evans approached two local politicians 
with ties to the Council of Concerned Citizens—state 
senator Lydia Chassaniol and state representative 
Bobby Howell—and asked them  to submit legislation 
th a t would perm it him to try Mr. Flowers’ case 
outside of the racially diverse confines of Montgomery 
County.113 Both politicians obliged. Representative 
Howell introduced House Bill No. 302, which 
empowered prosecutors to seek a change of venue to a 
new county “if [they] cannot have a fair and im partial

110 See id.
111 See id.
112 Lacey McLaughlin, Majority White Jury in Flowers Trial,
Jackson Free Press (June 11, 2010),
http://www.jacksonfreepress.com/news/2010/jun/ll/majority- 
white-jury-in-flowers-trial/.
113 Monica Land, Sixth trial set in Winona murders, Grenada
Star (Sept. 22, 2009),
https://www.grenadastar.com/2009/09/22/sixth-trial-set-in- 
winona-murders/.

http://www.jacksonfreepress.com/news/2010/jun/ll/majority-white-jury-in-flowers-trial/
http://www.jacksonfreepress.com/news/2010/jun/ll/majority-white-jury-in-flowers-trial/
https://www.grenadastar.com/2009/09/22/sixth-trial-set-in-winona-murders/
https://www.grenadastar.com/2009/09/22/sixth-trial-set-in-winona-murders/


35

trial in the county” where the crime was charged.114 
Senator Chassaniol introduced Senate Bill 2069, 
which would perm it the prosecution to seek a jury 
“from the entire circuit court district” if three specific 
conditions were met: a previous trial, a previous 
mistrial, and an unsuccessful attem pt by the court to 
seat an im partial jury.115 Because five of the six 
rem aining counties in the Fifth Judicial District have 
a higher population of white residents than  
Montgomery County, the effect of both bills would be 
the reduction of African Americans in the jury pool for 
any future tria l.116

Although neither bill was enacted by the 
legislature, Doug Evans still obtained another 
predominantly-white jury in the sixth Curtis Flowers 
trial. In this iteration, Mr. Evans accepted the first 
African American juror presented and struck the 
rem aining five.117 Thus, Mr. Evans ended up with 
eleven white jurors out of a venire that had been 42% 
African American before peremptory and for-cause 
challenges were issued.118 This predominantly-white

114 H.B. 302, Reg. Sess. 2009 (Miss. 2009), 
http  ://billstatus. Is. state, ms. us/documents/2009/pd£rHB/0300- 
0399/HB0302IN.pdf. Under current Mississippi law, only- 
defendants may request change in venue. See Miss. Code Ann. 
§ 99-15-35.
115 Comm, for S.B. 2069, Reg. Sess. 2009 (Miss. 2009), 
http://billstatus.ls.state.ms.us/documents/2009/pdf/SB/2001- 
2099/SB2069PS.pdf.
116 Mississippi White Population Percentage, by County (2013), 
https://www.indexmundi.com/facts/united-states/quick- 
facts/mississippi/white-population-percentage#map.
117 Flowers v. Mississippi, 158 So. 3d 1009, 1046 (Miss. 2014).
118 Id. a t 1089 (King, J., dissenting).

http://billstatus.ls.state.ms.us/documents/2009/pdf/SB/2001-2099/SB2069PS.pdf
http://billstatus.ls.state.ms.us/documents/2009/pdf/SB/2001-2099/SB2069PS.pdf
https://www.indexmundi.com/facts/united-states/quick-facts/mississippi/white-population-percentage%23map
https://www.indexmundi.com/facts/united-states/quick-facts/mississippi/white-population-percentage%23map


36

jury convicted Mr. Flowers of the four homicides in 29 
m inutes.119

119 Dave Mann, Did jury makeup decide Curtis Flowers’ fate and 
send him to death row?, Clarion Ledger (June 24, 2018), 
https://www.clarionledger.eom/story/news/2018/06/24/race- 
jurors-predicted-outcome-curtis-flowers-trial- 
analysis/726802002/.

https://www.clarionledger.eom/story/news/2018/06/24/race-jurors-predicted-outcome-curtis-flowers-trial-analysis/726802002/
https://www.clarionledger.eom/story/news/2018/06/24/race-jurors-predicted-outcome-curtis-flowers-trial-analysis/726802002/
https://www.clarionledger.eom/story/news/2018/06/24/race-jurors-predicted-outcome-curtis-flowers-trial-analysis/726802002/


37

CONCLUSION
One hundred and forty three years after the 

enactm ent of the Civil Rights Act of 1875, prosecutors 
continue to deny African Americans the right to serve 
on juries—particularly in Mississippi’s Fifth Judicial 
District. This Court should reaffirm its commitment 
to the eradication of jury discrimination and require 
th a t lower courts give serious scrutiny to all indicia of 
discrimination—history, statistics, and implausible 
justifications, among others. Unless this Court 
requires a more searching Batson inquiry than  tha t 
employed by the lower courts in this case, African 
Americans will continue to be unequal citizens in this 
country.

Petitioner’s conviction and death sentence should 
be reversed.

Respectfully submitted,

S h e r r il y n  A. I f il l  
Director-Counsel 

J a n a i S. N e l s o n  
S a m u e l  S p it a l  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d ,
I n c .

40 Rector St., 5th Floor 
New York, NY 10006

December 27, 2018

C h r is t o p h e r  K e m m it t * 
K e r r e l  M u r r a y  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , I n c . 
700 14th St. NW Suite 600 
Washington, DC 20005 
(202) 682-1300 
ckemmitt@naacpldf.org

Counsel for Amicus Curiae 
NAACP Legal Defense & 
Educational Fund, Inc.

* Counsel of Record

mailto:ckemmitt@naacpldf.org