[Deathpenalty] death penalty news----TEXAS, PENN., GA., FLA., ALA., MISS.

[Rick Halperin]

March 21



TEXAS----impending execution

Death Watch: “Texas 7” Member Contests “Law of Parties”----A robbery ended in a 
police officer death while Patrick Murphy waited outside. Current Texas law 
holds him responsible.



If the state has its way, 57-year-old Patrick Murphy of "Texas 7" infamy will 
be executed on March 28, though he didn't commit the murder that landed him on 
death row.

Murphy, along with 6 other prisoners (including Joseph Garcia, who was executed 
in December), achieved the biggest prison escape in Texas history in 2000 when 
they broke out of a maximum-security facility near San Antonio armed with 
stolen weapons. The men committed several robberies across Texas before hitting 
a sporting goods store outside of Dallas on Christmas Eve, an act which went 
awry, leading to the shooting death of Irving police officer Aubrey Hawkins. 
Murphy, however, maintains he did not wish to participate in the robbery and 
instead waited outside in the car. He, Garcia, and four others were caught in 
Colorado soon thereafter (the 7th committed suicide), and each was sentenced to 
death for Hawkins' capital murder under the controversial Texas "law of 
parties," which allows accomplices to another felony – such as robbery – that 
results in murder to be held responsible for the slaying even if they had no 
part in the killing.

As his death date nears, Murphy, who was originally serving a 50-year sentence 
for aggravated sexual assault, has asked the Texas Board of Pardons and Paroles 
to commute his sentence or offer a 90-day reprieve to await possible new 
"bipartisan and bicameral" legislation. Several bills have been filed this Lege 
session, including Sen. Juan Hino­josa's Senate Bill 929 and Rep. Jeff Leach's 
House Bill 4113, which would prohibit executions of those found guilty of 
capital murder under the law of parties (section 7.02(b) of the Penal Code). So 
the filing asks the BPP to "recognize that Mur­phy should not be executed when 
his conviction was obtained pursuant to a charge" that state lawmakers have 
"recognized cannot sustain a death sentence." If nothing else, the filing 
argues, Murphy's execution should be put on hold until the fate of the bills is 
known, so the Texas Court of Criminal Appeals could reconsider his case if the 
law is changed.

Murphy's BPP filing also points out that while Texas law allows juries to 
sentence an accomplice of a lesser crime to death, under the Supreme Court's 
Eighth Amendment jurisprudence, a defendant "can only be" executed for the 
crime "if he was a major participant in the felony." But Murphy's trial jury 
was never asked to determine whether or not he played a major role in the 
robbery that resulted in Hawkins' murder. Hence, executing him without putting 
this question before a jury would be a violation of the Eighth Amendment. 
Killing Murphy, the filing argues, who "neither fired a shot at Officer Hawkins 
nor had any reason to know others would do so," would "simply be vengeance."

In addition to his commutation plea, Murphy has asked the CCA to reconsider its 
April 2006 Denial of Relief, or otherwise allow him to file for a rehearing. 
Like his motion before the BPP, Murphy's CCA filing cites pending legislation 
and violation of his constitutional rights. However, here Murphy's counsel 
notes that the proposed legislation would not "provide relief for those" like 
Murphy, because the change in law would only apply to criminal proceedings that 
start on or after the effective date of Sept. 1, 2019. Instead, the motion 
insists, "The same concern that has led these legislators to propose the 
now-pending legislation is nonetheless present in Murphy's case."

It's been a long legal fight for Murphy; his last round of appeals – largely 
arguing ineffective counsel – ended in denial at SCOTUS in November. Without 
intervention, he'll the 3rd man executed by the state this year and the 5th 
member of the "Texas 7" to be put to death, leaving only Randy Halprin alive. 
Though Halprin has not yet been given an execution date, he has also maintained 
he didn't fire any of the 5 guns that killed Hawkins.

(source: Austin Chronicle)

******************

Executions under Greg Abbott, Jan. 21, 2015-present----42

Executions in Texas: Dec. 7, 1982----present-----560

Abbott#--------scheduled execution date-----name------------Tx. #

43---------Mar. 28----------------Patrick Murphy----------561

44---------Apr. 11----------------Mark Robertson----------562

45---------Apr. 24----------------John King---------------563

46---------May 2------------------Dexter Johnson----------564

47---------Aug. 21----------------Larry Swearingen--------565

48---------Sept. 4----------------Billy Crutsinger--------566

(sources: TDCJ & Rick Halperin)

****************************

USA----countdown to nation's 1500th execution

With the execution of Billie Wayne Coble in Texas on February 28, the USA has 
now executed 1,493 condemned individuals since the death penalty was 
relegalized on July 2, 1976 in the US Supreme Court Gregg v Georgia decision. 
Gary Gilmore was the 1st person executed, in Utah, on January 17, 1977. Below 
is a list of scheduled executions as the nation approaches a terrible milestone 
of 1500 executions in the modern era.

NOTE: The list is likely to change over the coming months as new execution 
dates are added and possible stays of execution occur.

1494-------Mar. 28------------Patrick Murphy------------Texas

1495-------Apr. 11------------Mark Robertson------------Texas

1496-------Apr. 11------------Christopher Pike----------Alabama

1497-------Apr. 24------------John King------------------Texas

1498-------May 2--------------Dexter Johnson------------Texas

1499-------May 16-------------Donnie Johnson-----------Tennessee

1500-------Aug. 15------------Stephen West-------------Tennessee

1501-------Aug. 21------------Larry Swearingen---------Texas

1502-------Sept. 4------------Billy Crutsinger---------Texas

(source: Rick Halperin)



PENNSYLVANIA:

Death Row Inmate’s Appeal Results in Lesser Sentence



A death row inmate’s appeal has resulted in a lesser sentence.

Daniel L. Crispell, now 48, was convicted in 1990 of the murder, kidnapping and 
robbery of Ella M. Brown, 48, who he and Christopher Weatherill abducted from 
the DuBois Mall in October of 1989.

According to previous reports, Crispell and Weatherill took her to a remote 
location in Sandy Township where she was stabbed to death. They then fled the 
area in her vehicle and were later taken into custody in Arizona after Crispell 
was caught trying to steal a purse from another woman.

Although Crispell was given the death penalty, and scheduled to be executed on 
Oct. 19, 2011, a stay of execution was issued in September of 2011 pending the 
conclusion of his appeal, according to court documents.

The appeal eventually went to the Superior Court where it was ruled that his 
attorney made a mistake by not using any information on Crispell’s troubled 
childhood or other mental problems during the penalty phase of his trial, which 
could have swayed the jury to give him life in prison rather than the death 
penalty.

Crispell was granted a new penalty phase hearing, which was scheduled for 
Wednesday morning.

After Crispell waived his right to a new hearing, Senior Judge John B. Leete of 
Potter County sentenced Crispell to life in prison without parole on the murder 
charge, a concurrent term of 10 to 20 years for robbery, 10 to 20 years 
consecutive for the kidnapping, 5 to 10 years consecutive for conspiracy, and 
42 months to 90 months consecutive for theft, according to a court employee.

Part of the condition of this sentence required that Crispell waive all future 
appellate rights.

Weatherill, who is serving a life sentence in the state prison system, was 
convicted of 2nd-degree murder, kidnapping and robbery in August of 1990.

His case is also on appeal because life in prison without parole has been 
determined to be cruel and unusual punishment for a juvenile offender. He was 
only 17 years old at the time of the crime.

His case is reportedly scheduled for a status conference in May.

(source: gantdaily.com)






********************

Death sentence for Grace Packer’s killer? Jurors to decide after hearing from 
girl’s family



Family members of a slain 14-year-old girl said Thursday they remain haunted by 
her torture and excruciating death, describing for jurors their unrelenting 
pain at a hearing that will determine whether her killer will be sentenced to 
life or death.

Jacob Sullivan, 46, pleaded guilty in the 2016 rape, murder and dismemberment 
of his girlfriend's daughter, Grace Packer. Grace's adoptive mother, Sara 
Packer, has agreed to plead guilty in exchange for a life sentence.

Prosecutors have said Sara Packer hated Grace, shared a rape-murder fantasy 
with Sullivan, watched as he sexually assaulted and strangled her in a hot 
attic outside Philadelphia, and helped hack up her body and dispose of it 
months later.

Sara Packer took the stand Wednesday and said Grace had a tendency to be a 
"very difficult child."

The defense has said that Sullivan should get the same sentence as Packer — 
life in prison.

Sara Packer, who wore a red prison jumpsuit, also said she has a degree in 
psychology and an IQ over 140.

"It sickens me to know that Grace was abused, tortured and literally thrown 
away like she was a piece of trash," her cousin, Karie Heisserer, with whom 
Grace lived for a time in 2015, said in court Thursday. "Grace is in a better 
place now, free from evil and pain."

Jurors saw photos of the bubbly but troubled teen in happier times: Sitting in 
the cab of her uncle's big rig, frolicking in the sand at her first trip to the 
beach, delighting in birthday cake at a pool party. But all of that happened 
with relatives, not with Sara Packer, a former county adoptions supervisor who 
prosecutors say spent years physically and mentally abusing the little girl she 
fostered and then adopted.

Bucks County District Attorney Matthew Weintraub told the jury Thursday that he 
agreed to a life sentence for Sara in exchange for her confession and guilty 
plea because the physical evidence against her was weak, because it was 
Sullivan who raped and killed Grace, and because her crimes did not qualify for 
the death penalty.

In a confession to police, Sullivan said he and Sara Packer plotted Grace's 
death. Sullivan admitted he punched and raped Grace as Sara Packer watched, 
bound her hands and feet with zip ties and stuffed a ball gag in her mouth. 
Prosecutors said Sullivan and Packer also gave her what they intended to be a 
lethal dose of over-the-counter medication and left her to die in a sweltering 
attic.

Grace eventually managed to escape some of her bindings and spit the gag out, 
but was unable to make it out of the house before Sullivan and Packer returned 
overnight — some 12 hours later — and Sullivan strangled her as Sara Packer 
looked on.

The couple stored her body in cat litter for months, then hacked it up and 
dumped it in a remote area where hunters found it in October 2016, prosecutors 
said.

Grace's younger brother, Josh Packer, now 14, told jurors the only way he can 
bear his loss is if adults know her story and then act to prevent child abuse.

He said in a statement read by a detective that if his big sister was told she 
could save other kids' lives by giving her own, she would ask, "What do I have 
to do?"

"Watch out for all the kids so that a loss like Grace's loss never happens 
again," Josh wrote. "Do your best to help kids who can't help themselves."

That's not what happened in Grace's case.

Sara Packer and her husband at the time, David Packer, adopted Grace and Josh 
in 2007. The couple cared for dozens of foster children before David Packer was 
sent to prison for sexually assaulting Grace and a 15-year-old foster daughter 
at their Allentown home, about an hour outside Philadelphia.

Sara Packer lost her job as a Northampton County adoptions supervisor in 2010 
and was barred from taking in any more foster children. But child welfare 
authorities did not remove Grace from the home, despite evidence of abuse.

The Pennsylvania Department of Human Services launched an investigation after 
Grace’s murder but its findings have not been made public.

(source: lehighvalleylive.com)








GEORGIA:

Facing death penalty trial, Brandon Conner to be back in court this week



The only person in Muscogee County currently facing death-penalty charges may 
get a new trial date Friday when he appears in front of a Muscogee County 
Superior Court judge.

Brandon Conner, 40, is facing capital murder charges in the August 2014 
stabbing deaths of his girlfriend Rosella “Mandy” Mitchell, 32, and their 
6-month-old son, Dylan Ethan Conner in front of Judge William Rumer..

"We hope Judge Rumer will be in a position to set a trial date," District 
Attorney Julia Slater said on Wednesday.

Conner is facing 2 counts of malice murder.

Conner was scheduled to go to trial on Oct. 1, but his attorneys -- Mark 
Shelnutt and William Kendrick -- were removed from the case by Rumer 2 weeks 
before the trial was scheduled to start. The 2 Columbus attorneys had asked to 
be replaced by Conner could no longer afford to pay them.

Conner is now represented by 2 public defenders who specialize in death penalty 
cases and work for the Georgia Public Defender Council’s Office of the Capital 
Defender. Emily Gilbert and Brad Gardner are now representing Conner. The judge 
set a March 5 deadline for Kendrick and Shelnutt to turn over the complete case 
file to Conner's new legal team.

The 9 a.m. Friday hearing in front of Rumer is to update the judge on the 
progress of the case.

Conner's prosecution is being led by Slater. Senior Assistant District Attorney 
Don Kelly and Assistant District Attorney Wesley Lambertus are assisting.

Police claim set the home at 1324 Winifred Lane on fire after stabbing his 
girlfriend and son to death.

Conner was arrested on an unrelated charge less than an hour after the fire was 
reported. He was found by Officer Jason Swails as he turned off Wynnton Road 
near Davis Broadcasting and parked. There had been a number of burglaries in 
the area.

Swails questioned Conner and the officer noticed he was shaking, sweating and 
appeared to have blood on him, according to police.

(source: WRBL news)








FLORIDA:

New developments in death row inmate re-sentencing



New developments in the re-sentencing of death row inmate Michael Bargo Jr., 
the man convicted in 2013 of killing a child in Marion County.

His defense attorney filing paperwork Monday saying he was incapable of 
understanding the criminality of his actions when he killed the 15-year-old in 
2011.

Bargo's lawyer says that due to his misdiagnosis of ADHD, and the subsequent 
prescription of psychotropic medications, Bargo should not be re-sentenced to 
death.

Bargo was first sentenced in 2013, but the jury voted 10 to 2 for the death 
penalty.

Since then, the Florida Supreme Court has ruled that a death sentence has to be 
unanimous.

Bargo was convicted of killing Seath Jackson in 2013 when he and 4 other people 
beat and shot Jackson to death after luring him to one of their homes.

The 4 others involved were given life sentences. Bargo's re-sentencing is set 
to begin on April 1st.

(source: WCJB news)








ALABAMA:

Federal Court Orders Alabama to Release Execution Protocol



In a victory for the media and advocates of open government, a unanimous 
three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled 
on March 18, 2019 that Alabama must disclose key portions of its highly 
secretive lethal-injection execution protocol to the public. The Associated 
Press, the Montgomery Advertiser, and Alabama Media Group had sued for access 
to the protocol, which came under intense scrutiny in the wake of Alabama’s 
failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.

Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He 
argued that his veins had been compromised by his illness and executing him by 
lethal injection would constitute cruel and unusual punishment. The courts 
permitted the execution to proceed after Alabama said it would not attempt to 
insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018, 
executioners tried and failed for 2 1/2 hours to set an intravenous execution 
line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off 
the execution but told the media, “I wouldn’t characterize what we had tonight 
as a problem.” Dunn repeatedly asserted the state had followed its execution 
protocol and claimed the execution had been halted only because the late court 
rulings in the case did not leave corrections personnel sufficient time to 
execute Hamm before his death warrant would have expired. Hamm filed a federal 
civil-rights lawsuit seeking to prevent Alabama from attempting to execute him 
a 2nd time. As part of that suit, he filed a doctor’s report—the only public 
document describing the circumstances of the execution attempt—that indicated 
execution personnel had unsuccessfully inserted IV needles more than 10 times 
into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and 
likely puncturing his bladder, causing blood in his urine. Shortly thereafter, 
Hamm and the state reached a confidential settlement in which Alabama agreed 
not to seek another execution date, the court records of the case would be 
sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not 
disclose any additional information about the case. In the aftermath, the three 
media outlets filed a motion to gain access to the protocol and execution 
records. A federal district court ruled in their favor in May 2018.

Alabama appealed that ruling, arguing that the lethal-injection protocol had 
never been formally filed with a lower court, and therefore was not a court 
record subject to public access. The appeals court rejected that argument, with 
Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have 
been formally filed under the rushed timeline of Hamm’s approaching execution, 
but the protocol constitutes a judicial record subject to the common law right 
of access because it was submitted to the district court to resolve disputed 
substantive motions in the litigation, was discussed and analyzed by all 
parties in evidentiary hearings and arguments, and was unambiguously integral 
to the court’s resolution of the substantive motions in Hamm’s as-applied 
challenge to the protocol.” The decision also addressed the importance of 
transparency to the public, saying “Judicial records provide grounds upon which 
a court relies in deciding cases, and thus the public has a valid interest in 
accessing these records to ensure the continued integrity and transparency of 
our governmental and judicial offices.”

Alabama’s execution secrecy has been at the core of several other execution 
controversies. In December 2016, execution witnesses reported that Ronald Smith 
clenched his fists and gasped repeatedly for nearly 15 minutes. After the 
execution, Dunn told the public only that the state had “followed [its] 
protocol.” State officials later refused to provide any documentation about the 
execution. In February 2019, late disclosure of its secret protocol provision 
mandating that a Christian chaplain—and no other religious adviser—be present 
in the execution chamber led to the controversial execution of Muslim prisoner 
Domineque Ray without affording him access to an imam at the time of his 
execution.

(source: Death Penalty Information Center)








MISSISSIPPI:

Justice Thomas breaks 3-year bench silence in Supreme Court death penalty 
case----The case involved an inmate who said the prosecutor repeatedly kicked 
black people off the jury when he was tried for the same murders.



The U.S. Supreme Court appeared likely Wednesday to rule in favor of a 
Mississippi death row inmate who said the state prosecutor repeatedly kicked 
black people off the jury each time he was tried for the same murders, in a 
case that prompted Justice Clarence Thomas to break a 3-year silence on the 
bench.

Curtis Flowers, who is black, was put on trial 6 separate times for the 1996 
murder of 4 employees at a furniture store in Winona, Mississippi, where he had 
recently worked. After the state supreme court threw out the 1st conviction 
over questions about evidence, Flowers faced 5 more trials. 2 resulted in 
mistrials.

But in 2 others, the state courts found that the prosecutor in the case, Doug 
Evans, wrongly excluded potential jurors on the basis of their race. In the 
case before the Supreme Court ON Wednesday, Flowers again accused the 
prosecutor of impermissibly removing blacks from the jury.

"How do you look at that," asked Justice Brett Kavanaugh, "and not come away 
thinking that there's a stereotype that you're just going to favor someone 
because they're the same race as the defendant?"

When a jury is being selected, lawyers for each side are allowed to exclude a 
certain number for potential bias or other cause. But they are also allowed to 
make peremptory strikes, which require no explanation.

3 decades ago, the Supreme Court said prosecutors cannot use those strikes to 
remove jurors solely because of their race. In rulings since then, the court 
has explained how judges are to evaluate whether race was an improper factor in 
jury selection.

Lawyers for Flowers told the justices ON Wednesday that Evans has a history of 
pushing blacks off juries when he is a prosecutor. Of 43 potential black jurors 
in the 6 murder trials for Flowers, Evans used peremptory challenges to remove 
41 of them.

Justice Elena Kagan said the record also showed that Evans asked many more 
questions of potential black jurors than he did of whites. "The numbers 
themselves are staggering," she said.

A key issue for the justice is how far back courts should go in examining a 
prosecutor's record to decide whether juror exclusions in a specific case were 
motivated by racial bias.

"Is there anything in our precedent that suggests that there out to be a 
limitation on looking to the history of the prosecutor involved?" asked Chief 
Justice John Roberts.

Sheri Lynn Johnson, the lawyer for Flowers, said "there is no limitation on the 
history."

Justice Samuel Alito, who also wondered about evaluating a prosecutor's record, 
said, "This history of the case prior to this trial is very troubling."

Thomas asked a few questions during the final minutes of Wednesday's argument, 
breaking his 3-year courtroom silence. He wanted to know if the defense lawyers 
used any peremptory challenges to exclude potential jurors.

Told that, yes, they did, Thomas asked, "And what was the race of the jurors 
struck there?"

Only whites, Johnson said.

Until February 2016, Thomas had not asked a question for 10 years.

The court will issue its ruling by late June.

(source: NBC News)

*************************

A “view” from the courtroom: Trials of Mississippi



Today will bring an intense hour of argument about race in jury selection in 
the case of a Mississippi man who has been tried 6 times by the same 
prosecutor, which will culminate in a series of short questions by Justice 
Clarence Thomas, his 1st during oral argument in 3 years.

But first, there are a couple of lighter moments.

Chief Justice John Roberts announces that Justice Stephen Breyer has the 
court’s opinion in Obduskey v. McCarthy & Holthus LLP, interpreting a provision 
of the Fair Debt Collection Practices Act.

Breyer has been busy at opinion time this week. On Tuesday, he delivered the 
first dissent from the bench of the term when he responded to Justice Samuel 
Alito’s majority opinion in Nielsen v. Preap, which gave the federal government 
greater authority to detain, without bond hearings, immigrants facing 
deportation who have committed crimes. Breyer spoke of the “basic promises” 
that the nation’s legal system offers all persons, including a bail hearing.

Breyer also announced the judgment and delivered a plurality opinion yesterday 
in Washington State Department of Licensing v. Cougar Den Inc., about whether 
an 1855 treaty between the United States and the Yakama Nation tribe pre-empts 
a Washington state fuel tax as it applies to the tribe’s transport of fuel by 
public highway.

Today, Breyer just has a straightforward announcement of a unanimous opinion in 
Obduskey, holding that a business engaged in no more than nonjudicial 
foreclosure proceedings is not a “debt collector” under the fair-debt law, with 
one exception. Justice Sonia Sotomayor has filed a concurrence.

The chief justice then announces that the court is issuing a per curiam opinion 
in the argued case of Frank v. Gaos, a challenge to “cy pres” settlements in 
class actions in which the funds go to the lawyers and certain nonprofit 
organizations, while class members get nothing.

Roberts begins a summary of the per curiam by explaining the underlying issue — 
that Google has allegedly violated the Stored Communications Act by 
transmitting search terms of the user to the server that hosts the selected web 
page.

The chief justice explains that the class action applied to searches conducted 
by Google users from 2006 to 2014, “so that means most of you.” He gets a good 
chuckle from the courtroom.

He goes on to explain the reason for the per curiam treatment today — that the 
solicitor general has raised concerns about whether any named plaintiff in the 
case actually had the right to sue, known as standing. The court is sending the 
case back for the district court and the U.S. Court of Appeals for the 9th 
Circuit to consider standing in light of the Supreme Court’s 2016 decision in 
Spokeo Inc. v. Robins. Thomas has filed a dissent.

Next up is bar admissions. There are a few individuals and two groups today. 
One group is from the Los Angeles County District Attorney’s Office, whose 
members will certainly find the argument engaging. The other group is from the 
Western New England School of Law. The school official or alumnus who presents 
the group draws growing laughs as he introduces his son, his nephew, his 
cousin, then a few non-relatives, and then another son, who is a member of a 
different state bar than the first son.

In his understated way, Roberts says, “Your motion is granted, and your 
relatives and the other applicants will be admitted.” This triggers a wave of 
laughter, and one person in the public gallery even claps at the quip.

The chief justice — he’s here all week.

But the mood quickly turns serious as Flowers v. Mississippi, the lone case for 
argument, begins.

As Amy Howe reported in her argument preview, this case involves Mississippi 
death-row inmate Curtis Flowers, who has been tried 6 times for the 1996 
murders of 4 people in a Winona, Mississippi, furniture store.

Doug Evans, the local district attorney, served as the lead prosecutor at all 6 
of the trials.

In Flowers’ first 2 trials, which involved a single murder charge, Evans used 
his peremptory strikes to eliminate all 10 potential African-American jurors. 
Flowers was convicted and sentenced to death, but both convictions were later 
reversed by the Mississippi Supreme Court, which found that Evans had engaged 
in intentional misconduct, such as introducing evidence of the other murders.

At his 3rd trial, Flowers was convicted and sentenced to death for the murder 
of all four victims, as Howe wrote. But the Mississippi Supreme Court also 
overturned those convictions. Evans had used all 15 of his peremptory strikes 
to remove African-American members of the jury pool, the state court ruled, in 
violation of the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky.

When Flowers was tried a fourth time, Evans used 11 peremptory strikes to 
remove potential African-American jurors, resulting in a jury with 7 whites and 
5 African-Americans. That jury deadlocked, as did the jury in Flowers’ 5th 
trial, Howe noted. Evans used 5 peremptory strikes in that trial, but there is 
no record of the race of the jurors whom he struck.

At Flowers’ 6th trial, in 2010, 6 of the 26 potential jurors in the jury pool 
were African-American. Evans allowed the first one to be seated but then struck 
the next 5 prospective African-American jurors, resulting in a jury of 11 white 
jurors and just 1 African-American. Flowers was convicted and sentenced to 
death for all 4 murders.

That 2010 conviction was upheld by the Mississippi Supreme Court, and upheld 
again after it was remanded for reconsideration in light of the U.S. Supreme 
Court’s 2016 decision in Foster v. Chatman, which held that the use of 
peremptory strikes to remove potential African-American jurors, as reflected in 
prosecutors’ notes, was unconstitutional.

This most recent conviction is the one before the justices today, and they will 
consider whether the state high court erred in how it applied Batson.

When Sheri Lynn Johnson of Cornell Law School takes to the lectern representing 
Flowers, she asserts that Evans began the 6th trial “with an unconstitutional 
end in mind, to seat as few African American jurors as he could.”

She describes the numbers and some of the anomalies in the questioning and 
striking of potential African-American jurors, factual matters that will be 
batted around in great detail today.

Alito interrupts her with a question that will help set the tone for the 
argument.

“The history of the case prior to this trial is very troubling,” he says, and 
it is “cause for concern and is certainly relevant to the decision that 
ultimately has to be made in the case.”

But “if we were to disregard everything that happened before this trial, and we 
looked at the strikes of the black prospective jurors as we would in any other 
Batson case, do you think you’d have much chance of winning?” he says.

The evidence is that Evans acted with discriminatory motivation, Johnson says.

Alito, a former United States attorney for New Jersey, presses her on some of 
the relationships between many of the potential jurors and either the defendant 
or the victims.

“Again, put aside the history,” Alito says. “In the end, we can’t do it, but if 
you did, don’t you think a prosecutor or any attorney would be very wary of 
having a juror who had been sued by one of the parties?”

The argument will veer several times to the close-knit nature of small-town 
Winona, with a population of no more than 5,000. One prospective juror worked 
at the same retail store as the defendant’s father, or “the world’s smallest 
Walmart,” as the trial judge called it and Alito repeats in court.

“It’s a very small town where everybody knows everybody, apparently, or many 
people know many people,” Justice Elena Kagan says to Johnson. “And it’s a 
largely segregated town, where you might think that African Americans knew more 
African Americans than they would whites or vice versa. So does that account 
for some of the differential questioning?”

Yes, says Johnson, the Mississippi Supreme Court said that concern accounted 
for some of the differential questioning.

“There are more African American jurors who report relationships with defense 
witnesses or the defense family members,” Johnson says. “But there are five 
white jurors who report such relationships and whom the prosecutor did not ask 
questions about those relationships.”

Jason Davis, a special assistant attorney general of Mississippi defending the 
state high court’s decision, begins his time at the lectern by conceding that 
“the history in this case is troubling.”

Davis says that “if we disengage this troubling history … if we take that out 
of the case, we don’t have any taints.”

Justice Brett Kavanaugh tells him, “We can’t take the history out of the case. 
… It was 42 potential African American Americans and 41 are stricken, right?”

Davis accepts that description, which appears to apply to numbers from the 
first 5 trials but not the 6th.

The chief justice tries at various times to move the discussion toward a 
general principle.

“We’re sort of conducting this as if it were one case,” he tells Davis. “And in 
terms of a broader rule, do you recognize or do we recognize in our precedent 
any restriction on the prior history that can be brought up with respect to a 
current case?”

When Davis says no, the chief justice asks the question in a slightly different 
way, as if to make sure he is hearing the state’s lawyer correctly.

“My point is, is there anything in our precedent that suggests that there ought 
to be a limitation on looking to the history of the prosecutor involved?” Davis 
stands by his concession.

“There’s no limitation on the history,” he says. “I think certainly the 
precedent says that you have to consider it.”

Sotomayor, a former assistant district attorney in Manhattan, tells Davis that 
she tried to conduct some research on formalized principles for when a 
particular prosecutor should no longer be the one to keep retrying a case.

“At least my former state prosecutor’s office would have substituted attorneys 
long before the fifth, sixth trial,” she says. “[I]t does seem odd to me that 
any prosecutor would continue to try a case with this history.”

Davis agrees with her that it is “an unusual circumstance, an unusual case with 
these six trials having been all tried by the same prosecutor. But I would 
resubmit, again, that the decision of the Mississippi Supreme Court in this 
instance was not violative of Batson and its progeny.”

Roberts informs Johnson that she has four minutes for rebuttal. She rises and 
says, “Unless this court has further questions, I will waive rebuttal.”

Not so fast. Someone has a further question. Thomas has been leaning forward as 
if he were itching to ask a question, but he does that from time to time and it 
is usually just a tease.

Today, he will ask his first questions at oral argument since his 2016 
questions in Voisine v. United States, a case about firearms possession by 
convicted felons. (The questions he asked that day were his first serious ones 
in more than 10 years.)

“Ms. Johnson, did you — would you be kind enough to tell me whether or not you 
exercised any peremptories?” he says.

She informs him she was not Flowers’s trial counsel, to which Thomas says, 
“Well, … were any peremptories exercised by the defendant?”

Yes, she says.

“And what was the race of the jurors struck there?” continues Thomas, who was 
the lone dissenter in Foster v. Chatman.

“She only exercised peremptories against white jurors,” Johnson says. “But I 
would add that the motive — her motivation is not the question here. The 
question is the motivation of Doug Evans.”

Sotomayor chimes in with some help, pointing out that the defendant’s lawyer 
didn’t have much opportunity to strike black jurors.

Johnson decides that she will make a concluding statement after all.

“When all of the evidence in this case is considered, just as in Foster versus 
Chatman, the conclusion that race was a substantial part of Evans’ motivation 
is inescapable, and the Mississippi Supreme Court’s conclusion to the contrary 
is clearly erroneous,” she says. And with that, the case is submitted.

(source: scotusblog.com)