Supreme Court Justice Brett Kavanaugh just wrote the majority opinion in a landmark civil rights case, banning the use of discretionary (peremptory) challenges to keep blacks off juries. This holding is precedent-shattering. Previously, prosecutors and defense attorneys have had limitless discretion in using their peremptory challenges — until now.
The defendant in the case was Curtis Flowers, who has spent 22 years on death row.
Kavanaugh noted that, in his opinion, the prosecutor had shown his racist proclivities by using his peremptory challenges to exclude all 36 prospective black jurors over Flowers' four trials. Before that, this same prosecutor had struck out 41 of 42 black would-be jurors. As Kavanaugh said, "The numbers speak loudly."
Hopefully, liberals will realize the injustice they were doing to a great and fair judge in vilifying him during his confirmation hearings.
While the Court has frequently vacated convictions — particularly on death row — because they were voted by all or largely white juries, prosecutors have never been required to state the reasons for their peremptory challenges or to have their stated rationale reviewed in court. After the Flowers decision, we hope this will change and judges in trial courts will use the powers the decision affords them to probe the motives behind such juror challenges where race might be involved.
Justices Clarence Thomas and recent Trump appointee Neil Gorsuch dissented from the decision, citing the overwhelming proof that Flowers, in fact, committed the murder. Mississippi, which has held six trials for Flowers, can bring a seventh prosecution if it wishes.
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