It wasn't until after he endured six capital murder trials tainted by racial prejudice that Curtis Flowers, a Black Mississippian, was finally exonerated, had the charges against him dismissed and his name cleared.

All told, he spent 23 years wrongfully incarcerated — 20 of them on death row — all while maintaining his innocence of the shooting deaths of four people, before the Mississippi attorney general's office dropped all charges and a court dismissed his indictment.

Central to Flowers' legal travesty was the lead prosecutor in each of his trials, Doug Evans, whose conduct was at the heart of a U.S. Supreme Court ruling the year before Flowers' exoneration.

In Mississippi capital cases, both the defense and prosecution are allowed to eliminate 12 potential jurors without stating a reason. But the U.S. Supreme Court's 1986 ruling in Batson v. Kentucky held that peremptory — unexplained — strikes cannot be based on protected characteristics like race, gender or national origin.

In 2019, in Flowers v. Mississippi, the high court found that Evans, who is white, used peremptory strikes to remove 41 of 42 Black prospective jurors for no reason other than their race. The court also found that the trial judge in Flowers' sixth trial in 2010, Joseph Loper, incorrectly applied the test for identifying racial bias in jury selection established in Batson.

"The State's relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury," Justice Brett Kavanaugh wrote in the majority opinion.

Now, another case involving a Black man on Mississippi's death row prosecuted by Evans — and presided over by Judge Loper — is before the U.S. Supreme Court. The justices are expected to announce Monday whether they will take it up.

The case involves Terry Pitchford, who was convicted and sentenced to death for his role in an armed robbery in which the owner of a rural bait shop was shot and killed by Pitchford's accomplice, according to prosecutors. Pitchford was 18 at the time.

During his trial, Evans, who at the time was the District Attorney for Mississippi's Fifth Circuit Court District, used four of his 12 peremptory strikes to remove four Black prospective jurors.

In December 2023, a federal district court in Oxford, Mississippi, found that Judge Loper failed to conduct the third and final step of the Batson test — actually evaluating if a juror was struck for racial reasons — and ordered that Pitchford either be released or tried again.

The U.S. Court of Appeals for the Fifth Circuit later reversed, finding that Judge Loper applied Batson properly and that Pitchford waived his right to challenge its application by not raising the issue during voir dire.

Joe Perkovich, an attorney representing Pitchford, said the Fifth Circuit ignored Evans' well-documented history of racial bias in jury selection, which was central to Justice Kavanaugh's opinion in Flowers.

"The Fifth Circuit's studied avoidance of this prosecutor's garish record of discrimination is an embarrassment to the federal judiciary," Perkovich said in a statement. "The Mississippi federal district court was right to order a new trial, and the Supreme Court should act now for the integrity of the nation's courts."

Counsel for the Mississippi Attorney General's Office did not respond to an email request on Friday. Evans retired in 2023.

Pitchford remains in custody at Mississippi State Penitentiary in Parchman, Mississippi.

A Process that "Broke Down"

Under Batson, courts apply a three-step test to evaluate claims of discriminatory peremptory strikes. First, the defense must argue that the strike was motivated by race or gender. Second, the prosecutor must offer a neutral explanation. Finally, the defense bears the burden of proving that the challenge was the product of intentional discrimination.

Critics say the standard is too high for defendants. A lawyer must convince the judge that there was intentional race discrimination and that the prosecutor's purportedly neutral reason for striking a juror was actually pretext hiding discriminatory intent.

Records from Pitchford's trial in Grenada County show that Evans conducted no formal questioning — known as voir dire — of the four Black prospective jurors he struck. He simply asked the court to remove them.

Alison Steiner, Pitchford's trial attorney, objected and told the court there was a "pattern of striking almost all of the available African-American jurors." That satisfied the first step of the Batson test.

What happened next, according to Pitchford's May 28 certiorari petition, "reflects the court's confusion about what Batson commands." Judge Loper asked Steiner whether she was requesting explanations for all excluded jurors or only those who appeared to be Black.

Steiner replied that the court's task was to determine whether racial discrimination played a role "on the basis of all relevant circumstances." Loper then heard Evans' ostensibly race-neutral justifications for excluding the Black jurors, thereby completing step two.

Judge Loper ultimately seated a jury of 13 white jurors and one Black juror, including alternates.

Perkovich said Loper was required under Batson's step three to assess on the record whether each strike was justified by the reasons given and to make an actual determination — but didn't.

"The process broke down," Perkovich said. "The trial court just failed to do the necessary work for each of those strike challenges, and instead ushered the case forward."

Habeas Proceedings

Pitchford raised Batson claims during his direct appeal, but the Mississippi Supreme Court ruled that Judge Loper applied the test properly. The court cited state precedent in concluding that Pitchford's lawyer failed to rebut the prosecutor's pretextual reasons, which amounted to waiver. Two justices dissented.

In 2018, Pitchford sought federal habeas corpus relief, asserting about two dozen claims, including prosecutorial misconduct, constitutional violations and renewed Batson arguments.

Discovery unearthed additional evidence. Pitchford's lawyers said some showed prosecutors suppressed information that could have undermined the credibility of state witnesses, in violation of Brady v. Maryland. More crucially, they obtained jury venire lists marked with race and gender notations — which, they argued, demonstrated Evans' intent to use race as a factor in jury selection.

Other details raised questions: Evans testified in a deposition that he struck Carlos Ward, a Black juror, based on his responses during voir dire. But trial transcripts show Ward never spoke.

After the U.S. Supreme Court's 2022 decision in Shinn v. Ramirez sharply limited the use of new evidence in federal habeas cases, Pitchford's attorneys concentrated on the Batson issues preserved in the state record.

In 2023, the U.S. District Court for the Northern District of Mississippi ruled that Judge Loper's application of Batson was defective because he failed to conduct step three. The court granted a writ of habeas corpus, vacated Pitchford's conviction and sentence, and ordered a new trial within 180 days or his release.

But in January 2024, the Fifth Circuit reversed, holding that the Mississippi Supreme Court's ruling was not unreasonable and that the state's waiver doctrine did not conflict with Supreme Court precedent.

Pitchford's lawyers argue in their Supreme Court petition that the ruling deepens a circuit split. They say the Fifth Circuit, like the Fourth and Eighth Circuits, has diverged from the approach of most circuits — including the Second, Third, Sixth, Ninth, Tenth, and Eleventh — in applying Batson.

They also contend that the Fifth Circuit disregarded Miller-El v. Dretke, a 2005 Supreme Court ruling from Texas that overturned the Fifth Circuit and held that federal courts must reverse when a prospective juror is excluded based on race.

Three amicus briefs have been filed in support of Pitchford. One came from three Black prospective jurors whom Evans struck from Pitchford's trial, arguing their own constitutional rights were violated. Another, from the Mississippi Legislative Black Caucus, criticizes state courts' failure to protect Black citizens' right to jury service. A third was filed by a group of current and former prosecutors and judges.

"All the federal courts, especially the Supreme Court, have a heightened duty when it comes to a capital judgment to ensure the reliability and the constitutionality of the ultimate outcome," Perkovich said. "When we're talking about a compromised jury in violation of the Equal Protection Clause, it is a serious constitutional violation."

--Editing by Alex Hubbard.

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