The Curious Case of Curtis Flowers: How Batson v. Kentucky and The State of New Jersey v. Andujar Addressed Racial Bias in Jury Selection

In honor of Black History Month, we are republishing our Managing Partner Chad M. Moore’s 2022 blog on racial bias in jury selection, featuring an update from Associate Samantha M. Marrelli on implicit and explicit biases in jury selection in New Jersey.

Dr. Martin Luther King Jr., once wrote “Justice too long delayed is justice denied.” One could wonder what Dr. King might say about the curious case of Curtis Flowers. If you have never heard that name, you should certainly “Google” it. In short, Mr. Flowers is an African American man from Mississippi who was tried six times (yes, six, not a typo) for the same crime. Each trial was littered with prosecutorial misconduct and something called Batson violations. Amazingly, four of the six trials ended in a reversal. Two of them ended in mistrials. Add up the time and Mr. Flowers spent 23 years in prison fighting the issue. 

By way of background, in Batson v. Kentucky, 476 U. S. 79 (1986), the U.S. Supreme Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial. In most jurisdictions, a prospective juror can be removed for “cause.” Peremptory challenges allow a party to dismiss a prospective juror without cause. They are limited in number and that number varies based on jurisdiction. Batson requires that the reason be “race neutral.” Mr. Flowers’ case is a perfect example of how misuse of peremptory challenges can clash with equal protections afforded under the law.

Curtis Flowers is an African-American man who, in 1996, allegedly murdered four people in Winona¹, Mississippi. The same lead prosecutor represented the State of Mississippi in all six trials. In the first three trials, Mr. Flowers was found guilty by the empaneled jury. However, the Mississippi Supreme Court reversed each conviction. Each trial had numerous Batson challenges and allegations of Prosecutorial Misconduct. Each time, the Mississippi Supreme Court sided with Mr. Flowers on the issues and reversed jury verdict. In the third reversal, the Mississippi court stated: “The instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.” Flowers v. State, 947 So. 2d 910, 935 (2007). The opinion further stated that the “case evinces an effort by the State to exclude African Americans from jury service.” Id., at 937, 939.

The fourth and fifth trials ended in mistrials due to hung juries. In the sixth trial, the State struck five of the six black prospective jurors. On appeal, Mr. Flowers argued that the State violated Batson in exercising peremptory strikes against black prospective jurors. However, the Mississippi Supreme Court affirmed the conviction with a 5-4 decision. Shortly thereafter, the U.S. Supreme Court granted certiorari² on the Batson issue and reversed.

As part of the Supreme Court’s record, juror notes and profiles from all six trials were submitted. Those notes show that in the six trials combined, the State of Mississippi used its peremptory challenges to strike 41 of the 42 black prospective jurors, a statistic that the State admitted at oral argument. In the sixth trial alone, the State exercised peremptory strikes against five of the six black prospective jurors. The Constitution forbids striking one prospective juror for a discriminatory purpose…let alone 41.

On June 21, 2019, Justice Brett Kavanaugh delivered the 7-2 opinion of the U.S. Supreme Court, which firmly reinforced the principles set forth in Batson. The Order of the Court reversed the guilty verdict and sent the case back to the State of Mississippi. By the time the Order was issued, Mr. Flowers had spent over 20 years in jail. In December 2019, he was released from jail pending the State’s decision as to whether or not it would try him for a seventh time. It did not. In fact, in 2021, the State of Mississippi announced that it would pay Mr. Flowers $500,000 ($50,000 each year for 10 years) for his 23 years of imprisonment.  

Racial Bias and the Use of Peremptory Challenges Were Addressed by the New Jersey Court System

In the case State v. Andujar, 247 N.J. 275 (2021), the Court held that there is a difference between implicit bias and explicit bias, and both should be considered.  

In 2017, Mr. Edwin Andujar was convicted for the 2014 stabbing death of his wheelchair-bound roommate. He was sentenced to 45 years in prison. In 2021, however, Mr. Edwin Andujar’s attorneys argued before the New Jersey Supreme Court that he was denied a fair trial due to racial discrimination in the jury selection process. Juror, F.G. is an African American male from Newark, New Jersey. In a 30-minute sidebar, F.G. answered voir dire questions about his family in law enforcement, friends impacted by the criminal justice system, and friends and family who were crime victims. When asked if he believed the criminal justice system was “fair and effective”, F.G. responded “I believe so because you are judged by your peers.” F.G. was also familiar with the “lingo” used by the “criminal justice system” as the Prosecutor argued to have F.G. dismissed “for cause” as a juror. The Prosecution failed to make a valid argument justifying the removal of F.G. thus, resulting in their dismissal request being denied. The judge believed that F.G. would have been a fair and impartial juror, regardless of his background.

Being unsatisfied with the court’s denial of F.G.’s removal, the Prosecution decided to investigate F.G. further—believing he could not be an impartial juror based on his “background, associations and familiarity with the criminal justice system.” They conducted a criminal history check on F.G. and found that he had prior arrests and had an outstanding warrant from the Newark Municipal Court. The Prosecution informed the Court that they habitually did not conduct juror background checks but that F.G.’s “background and his acknowledgment that he hangs out with people that are in a lifestyle and hustling drugs and getting arrested, the dozens of criminal elements that he produced here at sidebar raised the concern for the State.” As a result of the background check, F.G. was dismissed from being a juror and was later arrested for his outstanding warrant.

The Court held that any party seeking a background check on a juror must request same by the Court (out of the presence of jurors), do so on a good-faith basis, and both parties must be notified of the results. “Mere hunches” are not a justification as to the reasoning behind requesting a background check. When weighing the evidence, the Court found that the background check stemmed from “impermissible presumed group bias.” The Court did not believe the Prosecution engaged in “purposeful discrimination or any willful misconduct”, but instead “implicit or unconscious bias.” The Court found that Mr. Andujar’s “constitutional right to be tried by an impartial jury, selected free from discrimination, was violated.”

The Flowers’ case showed us that each time there was a racially motivated misuse of the system, there was a balance in place to undo it. The Andujar case showed us that implicit bias and explicit bias will be weighed as one in the same in the eyes of the Court.

To its credit, the New Jersey Supreme Court Board on Continuing Legal Education updated their ethics and professionalism requirements beginning in 2021, and now require all active/practicing attorneys to have at least two continuing legal education credits focused on diversity, inclusion and elimination of bias in each two-year reporting cycle. Whether this required training decreases the number of Batson violations remains to be seen.

Anyone interested to learn more about Curtis Flowers can do so by listening to the “In The Dark” podcast series that investigated the case.

Hoagland Longo is committed to fostering a diverse, equitable, and inclusive workplace where all individuals feel valued and empowered. Through our ongoing DEI initiatives—including mentorship programs, strategic partnerships with local affinity bar associations, and educational events—we strive to create a culture that reflects the diverse clients we serve. We believe that inclusion strengthens our firm and enhances our ability to provide thoughtful, well-rounded legal solutions. 

Chad M. Moore is the Managing Partner of Hoagland Longo, and a member of the firm’s Executive Committee. He is also the Chair of the Technology Committee, and a leader of the Civil Litigation and Commercial Litigation practice groups.

Samantha M. Marrelli is an Associate in the firm’s Environmental and Toxic Tort practice. She focuses her practice on litigation of toxic tort and mass tort matters.

Chad and Samantha are members of Hoagland Longo’s Diversity, Equity & Inclusion Committee.

¹ Winona is a small town in northern Mississippi, just off I–55 almost halfway between Jackson and Memphis. The total population of Winona is about 5,000. The town is about 53 percent black and about 46 percent white.

² Meaning, a writ of certiorari was submitted and granted. A writ of certiorari is a request that the Supreme Court order a lower court to send up the record of the case for review. The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit Courts, and/or could have precedential value.