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Race and the death penalty: Supreme Court to hear case of Curtis Flowers, tried six times for quadruple murder - The Washington Post
Curtis Flowers is led away from the Montgomery County Courthouse in Winona, Miss., in 2004. (Dale Gerstenslager/AP)
By Robert Barnes
Reporter covering the U.S. Supreme Court
Email Bio FollowMarch 15 at 8:30 PM
WINONA, Miss. — Early one hot July morning in 1996, four people were executed in Tardy Furniture Store, a mainstay of this town’s compact business district. Months later, a man named Curtis Flowers, who had no criminal record but had very briefly worked at the store that summer, was arrested and charged.
Flowers was tried in 1997. And 1999. And also in 2004, 2007, 2008. And, most recently, in 2010.
Six times, District Attorney Doug Evans, who is white, has attempted to convict Flowers, who is black, in a prosecutorial pursuit that may be without parallel.
Two trials — as it happens, the only ones with more than one African American juror — have resulted in hung juries.
Three convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct and improper maneuvering by Evans to keep blacks off the jury.
But the 2010 conviction was allowed to stand and Flowers was sentenced to death. Next week, the U.S. Supreme Court will consider whether the Mississippi court was correct in finding no constitutional violations in that trial, even though Evans used the challenges allotted him to keep five of six African American potential jurors from being seated.
The building in Winona, Miss., that once housed the Tardy Furniture Store. (Robert Barnes/The Washington Post)
The case has attracted national attention — “Nobody gets tried six times but Curtis Flowers,” said Robert Dunham, executive director of the Death Penalty Information Center. A bipartisan group of former Justice Department officials and a national civil rights group have filed friend-of-the-court briefs on Flowers’s behalf.
“When there is reason to believe that a prosecutor is exploiting racial bias and division in an attempt to obtain a conviction, the courts must take strong action,” former Obama administration solicitor general Donald B. Verrilli Jr. wrote on behalf of six former officials.
[Supreme Court to examine racial divide in jury selection]
The justices on Wednesday will examine the jury aspect of Flowers’s conviction. But a separate team of lawyers is preparing a more direct attack, aided by the work of reporters who spent a year investigating the case for “In the Dark,” a podcast that has raised considerable questions about Flowers’s prosecution.
“Curtis Flowers is innocent of the Tardy Furniture Store murders,” the lawyers write in a 321-page petition for post-conviction relief filed in the Mississippi courts. The dead were Bertha Tardy, 59, and store employees Carmen Rigby, 45, Robert Golden, 42, and 16-year-old Derrick “Bo Bo” Stewart, who had reported that morning for his first day of work at the first job of his life.
Clemmie Flemming points out to prosecutor Doug Evans, center, where she spotted Curtis Flowers on the morning of four slayings at Tardy Furniture Store in Winona, Miss., in 1996. The 2010 trial was the sixth time Flowers had been tried for the slayings. (Taylor Kuykendall/The Greenwood Commonwealth/AP)
Flowers’s lawyers say “newly discovered evidence” shows previous convictions were obtained through “false testimony by key law enforcement witnesses and a jailhouse snitch, suppression of material evidence, egregious racial discrimination in jury selection, and reliance on false and discredited forensic evidence.”
The series of reports by “the podcast people,” as some refer to the reporters from American Public Media, have been unwelcome for some here. And so have the legal briefs reminding of Winona’s history with racially motivated crimes .
Mississippi voting rights advocate Fannie Lou Hamer described the beating she received from Winona police in her famous speech to the Democratic National Convention in 1964, according to the brief filed by the NAACP Legal Defense and Educational Fund.
The train station across the street from Tardy Furniture is where Emmett Till ended his ill-fated trip from Chicago in 1955. The 14-year-old’s murder in a town 30 miles away was a transitional moment for the civil rights movement.
The Ku Klux Klan has marched in Winona, and the Rev. Martin Luther King Jr. had rallied its black residents.
But the town’s current leaders resist suggestions of a modern-day racial divide.
“There’s never been an issue except to get to the truth,” said Mayor Jerry Flowers, who is white and is not related to Curtis Flowers, he said, “as far as we know.” He jokingly calls Curtis Flowers’s brother “Cuz” when he sees him at the ballpark.
Winona Police Chief Tommy Bibbs, who is black, takes a similar view. “That was then and this is now,” he said. He brings up the Confederate statue in front of the old courthouse — dedicated to “the Confederacy, President Jefferson Davis and the soldiers who fought for state rights” — only to dismiss its importance.
“That statue ain’t done nothing to me,” Bibbs said.
Bibbs, who was not involved in Flowers’s arrest in 1996, said many of those who proclaim his innocence have not been to the trials or read the transcripts.
The one in 2010 lasted eight days, and the jury convicted in 30 minutes.
“As far as him being the culprit, no, I have no questions about that,” said Frank Ballard, the son-in-law of Bertha Tardy. “I do not believe he was a choir boy.”
Evans, the district attorney, did not return requests for interviews. When this reporter stopped by his office in nearby Grenada one morning this week, an assistant said he was already at lunch.
A questionable conviction
Bertha Tardy was more than a furniture saleswoman; she had been to interior design school, and people depended on her sense of style.
“Local businesses and banks would come in and say, ‘We’re putting a new lobby in,’ or ‘We’re changing the boardroom,’ ” Ballard said. “She was the go-to person for that. In a small town you wear a lot of different hats.”
Rigby was quiet, and could usually be found at the counter, in the center of the store. Golden, the only African American victim, did what needed to be done around the store. He worked two jobs to provide for his family, which included a special-needs child.
Stewart was a popular high school athlete, and at a game the night before, Alderman David Ware’s son caught and Stewart pitched.
“He was a helluva pitcher, there’s no telling what he could have done,” Ware said.
Each of the victims was shot in the head. Stewart was the only one alive when a store employee came upon the horrible scene. “I’ll never forget all of us going to the hospital,” Ware said, although it was clear Stewart would not survive. The members of his summer league team signed a baseball and put it in his casket.
Tim Beeland, who at the time was editor and publisher of the Winona Times, said the shocking news was difficult for the town to process.
“It was just like small-town anywhere: I’d park my car behind the newspaper office and never even take the keys out of it for the rest of the day,” Beeland said. “It’s like all of that changed instantly that morning. You looked over your shoulder at everything.”
Rumors were rampant, and Beeland had left to run another newspaper, the Scott County Times, before prosecutors turned to Flowers, then 27, who was indicted in March 1997.
Flowers had briefly worked at the store that past July. But he had improperly loaded some merchandise that was damaged as a result. Bertha Tardy told him she’d have to dock his pay. He didn’t show up for work for several days, and when he checked in to see if he still had a job, she said no. His timecard and paycheck were found on a desk in the store; $389 was missing.
Flowers maintained his innocence, and Evans had to build a case against him bit by bit. There was no physical evidence. No one saw him enter or leave the furniture store. Prosecutors say that Flowers stole the gun used in the shootings from his uncle’s car that morning but that they’ve never found the weapon .
The testimony against him came from a string of witnesses who say they saw him at various points along a long walk across town before and after the shootings. There was a particle of gunpowder on one hand when police questioned him that day, authorities said. Money was recovered from his girlfriend’s house, and there was a bloody shoeprint similar to a pair of athletic shoes Flowers was alleged to have owned. A ballistics expert said the bullets found at the store matched those recovered by a fence post where Flowers’s uncle practiced shooting.
Three jailhouse informants over the years said Flowers confessed to them. All three later recanted.
The most dramatic came from Odell Hallmon, now serving a life term for murder, who during the 2010 trial testified against Flowers. But speaking to the “In the Dark” podcast on a phone he had smuggled into prison, Hallmon said that was all made up, a deal he had reached with Evans.
A group called Friends of Justice highlighted Flowers’s case. The Starz network series “Wrong Man” featured Flowers. The podcast brought even more attention and won a George Polk Award.
Nelson Forrest, a Methodist minister who is related to Curtis Flowers, says the podcast especially has made a difference in how people in Winona view the case.
“It shocked a lot of black folk,” Forrest said. “People used to trust the law — they say if they’ve got him locked up, they must have something. But now people see that something has to be wrong with it. It just didn’t add up.”
A question of discrimination
When the U.S. Supreme Court takes up Flowers v. Mississippi on Wednesday, it won’t be considering the evidence against him . Essentially, it will be Doug Evans’s prosecutorial tactics that are on trial, and whether he discriminated against African Americans in keeping them off the jury in the 2010 trial.
When picking a jury, some are eliminated by the judge and lawyers for cause — that they are likely to be biased, for instance, or because they say in a capital case that they could not impose the death penalty.
Prosecutors and defense attorneys also receive what are known as peremptory challenges. They can strike potential jurors they simply don’t want on the jury, and generally those choices cannot be second-guessed.
But in a 1986 case, Batson v. Kentucky, the Supreme Court said the challenges could not be used to strike a potential juror because of his or her race. (Gender was later added as a forbidden purpose.)
In a more recent decision, the court said judges should consider the “totality of the circumstances” when deciding whether a prosecutor was using the challenges as a pretext for barring jurors because of their race.
Flowers’s lawyers said that means looking at Evans’s work in previous trials, not just the most recent one.
“The first four times Evans prosecuted Flowers, he struck every black panelist that he could, 36 in all,” they told the Supreme Court.
Generally, lawyers can come up with a race-neutral reason for striking a juror. But Evans’s actions in one of those trials, the Mississippi Supreme Court ruled, presented “as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.”
But deciding whether a potential juror was struck is a fact-specific inquiry. And the Mississippi high court in the 2010 case deferred to a judge’s finding that Evans had nondiscriminatory reasons for striking the black jurors — because they had ties to Flowers or had been sued by Tardy Furniture, for instance.
Evans’s past behavior is not relevant, Mississippi Attorney General Jim Hood told the Supreme Court in defending the conviction.
Flowers’s request that the justices “automatically assume the district attorney violated Batson based upon his previous violation of Batson in Flowers’ third trial is without precedential support and is thus devoid of legal merit,” Hood wrote.
Flowers’s lawyers and supporters say that argument overlooks the larger point . There have been 72 jurors in the six trials, 61 of them white. All have voted to find Flowers guilty. Six of the 11 African American jurors have found the opposite.
Reporters for the “In the Dark” podcast assembled a database of trials conducted by Evans’s office. They found that in 225, in which full data was available from 1992 through 2017, Evans’s office struck 50 percent of the eligible black jurors and 11 percent of white jurors.
Evans was more than four times more likely to strike a black potential juror as a white one. And Flowers’s attorneys say he relentlessly questions black potential jurors to find what might pass as a race-neutral reason for dismissing them.
In the 2010 trial, Evans asked 145 questions of the black potential jurors he rejected. He made a total of 12 inquiries to the 11 white jurors he seated.
Evans has dismissed the reporters’ study of his jury patterns.
“I don’t know where that figure comes from,” Evans told the Greenwood Commonwealth. “I haven’t listened to (the podcast), and I don’t intend to because I know what this is about.”
The focus on race has been painful for some.
“There are racial problems everywhere, and anytime anyone in Mississippi tells there’s not some type of racial problems, it’s just a lie,” said Beeland, the newspaper editor, who is white. “Winona is no different.”
But he notes: “We also have African American elected officials, on the city and county [level], we worked together on schools. I think there were good relationships before, I think there are good relationships now.”