Legal Docket: Rejecting a potential juror

MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 1st day of April, 2019.

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Well, the Supreme Court is on a short break from oral arguments. The justices get back to it April 15th. They’ll sit as a court for a final time to hear the rest of the arguments for this term.

Here’s our schedule. This week and the following two Mondays, we’ll catch you up on all the arguments to date.

REICHARD: Yeah, and because this is such a busy time with rulings coming in, I need to make a small adjustment. On Tuesdays going forward, I’ll carve out some time on the program to report the rulings. I’ll start that tomorrow.

EICHER: One quick item before we get to oral arguments, though.

Last week, the justices rejected a bid by gun-rights advocates to block a federal ban on so-called bump stocks.

These devices attach to semi-automatic weapons to enable rapid-fire shots sort of like a machine gun.

President Trump banned bump stocks by regulation after the Las Vegas mass shooting in 2017. In that attack, the shooter fired more than 1,000 rounds in a matter of minutes.

Bump-stock owners could receive up to 10 years in prison if they didn’t destroy or turn in the devices by January 25 this year.

The ban took effect last Tuesday.

Challengers vow to keep up the legal battle in the lower courts where other challenges to the ban are winding through.

REICHARD: All right, now on to two oral arguments the justices heard in March.

The first arises in the quiet small town of Winona, Mississippi. A quadruple murder in a furniture store shattered that quiet in July 1996.

The man accused of those crimes is Curtis Flowers, an African American man who’s been behind bars for more than 20 years. Now 48, Flowers has stood trial for these same murders six different times.

EICHER: You may wonder, doesn’t the Constitution protect him from double jeopardy? It does, but the repeated trials aren’t considered double jeopardy because no jury ever acquitted Flowers of the crimes. So the prohibition on being prosecuted twice for the same offense doesn’t apply.

Four times a jury found Flowers guilty and sentenced him to die. But in the first three trials, the state supreme court reversed Flowers’s convictions because of misconduct by the prosecutor. The fourth and fifth trials ended in mistrial because jurors couldn’t reach unanimous agreement.

REICHARD: It’s the sixth trial from 2010 that handed down a death sentence the Mississippi Supreme Court actually upheld.

The prosecutor in every one of those trials was Doug Evans.  He’s been district attorney in Montgomery County since the early 1990s.

In oral argument, Flowers’ attorney pointed to a troublesome history with this particular D.A. over the course of those six trials: Misstated facts, trying four murders together when only one count was at issue, and questioning potential jurors to keep black people off the trial jury.

Flowers’ lawyer, Sheri Lynn Johnson, at the U.S. Supreme Court.

JOHNSON: The only possible interpretation of all of the evidence viewed cumulatively is that Doug Evans began jury selection in Flowers six with an unconstitutional end in mind: to seat as few African American jurors as he could. The numbers alone are striking. In the first four trials, Mr. Evans exercised 36 peremptory challenges, all of them against African American jurors. In the sixth trial, he exercised five out of six of his challenges against African American jurors.

Here’s how jury selection works. The judge dismisses anyone from the jury pool who have obvious conflicts of interest. Then the prosecutor and the defense lawyer question potential jurors in turn. A “peremptory challenge” is a way to dismiss someone without having to explain why. Lawyers can use a limited number of those.

Another way to strike a potential juror is “for cause,” in which the lawyer has to state a reason.

But in no case can a lawyer dismiss someone on the basis of race. That’s Supreme Court precedent from a 1986 case called Batson.

Now, let me stop the flow of the argument here to point out a rarity. Justice Clarence Thomas hardly ever speaks up in oral arguments. In this case, he did.

Justice Thomas broke a three-year silence, evidently to pursue a doctrine raised in Batson that it’s wrong to dismiss a person on the basis of any race.

Thomas here engages with Johnson, Flowers’ lawyer:

THOMAS: Ms. Johnson did you … would you be kind enough to tell me whether or not you exercised any peremptories?

JOHNSON: I was not the trial lawyer.

THOMAS: Well, … were any peremptories exercised by the defendant?

JOHNSON: They were.

THOMAS: And what was the race of the jurors struck there?

JOHNSON: She only exercised peremptories against white jurors. But I would add that the motive—her motivation is not the question here. The question is the motivation of Doug Evans.

Defending Flowers’ conviction was Assistant State Attorney General Jason Davis. He stated the obvious first, before Justice Brett Kavanaugh interrupts.

DAVIS: The history in this case is troubling, but the history is confined to this case, and as Mr. Chief Justice Roberts pointed out it is unusual. This is the sixth trial in this small town. A small town of approximately 5,000 individuals. The questioning of whether the makeup or the limited number of individuals in the town was one of the reasons for follow-up questions is accurate….And I would return to Justice Gorsuch’s question of if we disengage this troubling history—and I agree, I’m not suggesting that… —however, if we take that out of the case, we don’t have any taints. We— …

KAVANAUGH: … You— you said if— if we take the history out of the case. We can’t take the history out of the case.

No, we can’t, and still Davis argued the race-neutral reasons the prosecutor gave when he struck a black juror overcomes his own poor history. He did what any prosecutor would do: strike people who were friends with the Flowers family, or who lied on the juror questionnaire to get out of jury duty, or were sued by the furniture store to collect on unpaid bills.

But Justice Kavanaugh stayed focused on history in this exchange with Davis, and you’ll hear Davis first.

DAVIS: And again, this is part and parcel of this issue with this unique case is, you know, 5,000 people in the town. Everybody knows everybody and everybody knew about the case. And the Mississippi Supreme Court noted that these witnesses on both sides knew numerous witnesses for both the prosecution and the defense. And that is of course but one part of the analysis. You have to look at the reasons that were offered by the district attorney and in this case they all support the strike—

KAVANAUGH: Well, part of Batson was about confidence of the community in the fairness of the criminal justice system. Right?

DAVIS: Yes, your honor.

KAVANAUGH: And that was against a backdrop of a lot of decades of all-white juries convicting black defendants. … And then Batson said: We’re going to give you the tools to eradicate that so that the— not just for the fairness to the defendant and to the juror, but that the community has confidence in the fairness of the system. And can you say, as you sit here today, confidently, you have confidence in the— how this all transpired in this case?

DAVIS: I have confidence in this record, Justice Kavanaugh. I have confidence in the strikes the district attorney made based on the four corners of this record.

Had a different prosecutor tried these cases, this probably wouldn’t be before the Supreme Court now. Justice Alito asked whether the attorney general of the state could have sent in one of his own people to try the case in a different county.

DAVIS: Statutorily, the attorney general’s office is allowed to assist, is allowed to take over, but only upon request by that district attorney. So that was not an option in this case.

And that’s too bad. It’s this particular prosecutor around which this death-penalty appeal turns.

It’s been more than 20 years, four people are dead, and this case still isn’t over. As for Flowers, the justices may well vacate his death sentence.

If so, Evans could again try Flowers a seventh time.

The significance of this ruling could be in recognizing that history matters, expanding the inquiry beyond analysis of only questions asked.

This last argument today deals with a federal law called the False Claims Act.

The law allows the government to recover damages from companies that defraud it.

A special provision allows private whistleblowers to step forward and sue on behalf of the government.

In exchange, the whistleblower wins part of the damages.

Lots of money is involved with these lawsuits. In fiscal year 2018, companies paid out more than $2 billion in damages to private whistleblowers suing under the False Claims Act.

The question here is whether one whistleblower was too late to file under the terms of the statute.

Lawyer Theodore Boutrous for the allegedly fraudulent company did his best to argue against lengthened time limits. You’ll hear the term “relator” and that’s just a reference to the whistleblower.

BOUTROUS: But think of it this way: if a relator’s case is baseless, if it’s a concocted claim, if it’s a meritless claim, those incentives about moving quickly don’t spark the relator to do anything. They’re better off just waiting, letting damages that they’re going to claim pile up treble damages, and they can amass whatever evidence they have while the defendant has no idea that someone is going to bring this claim.

But Justice Gorsuch didn’t sound too convinced.

GORSUCH: I’ll put my cards on the table so you can play them as you wish…. [H]ere you’re asking us to split the baby as it were. … [W]e normally don’t read the same language to mean two different things… .

I don’t think the justices want to help fraudsters, so I suspect they’ll increase the time limitations and hand the whistleblower here a win.

Either way, the circuits are split and clarity is needed.  

And that’s this week’s Legal Docket.

(AP Photo/Carolyn Kaster) The Supreme Court building is seen on Capitol Hill in Washington, Tuesday, March 26, 2019. 

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