Mr. Evans questioned them closely, asking an average of 29 questions each. He asked the 11 white jurors who were eventually seated an average of one question each. It is hard to escape the conclusion that Mr. Evans was looking for race-neutral explanations for striking black jurors.
The jury, made up of one black and 11 white jurors, convicted Mr. Flowers and sentenced him to death. This time, the Mississippi Supreme Court affirmed the conviction and sentence, accepting Mr. Evans’s explanations for his latest strikes.
Mr. Evans and the office he led appear to have made a practice of excluding a disproportionate number of black people from juries. The excellent podcast “In the Dark,” which has examined many aspects of the Flowers case in gripping detail, undertook a survey of 225 trials handled by his office over 25 years, involving 6,763 potential jurors.
Mr. Evans’s office, the podcast found, used peremptory challenges against 50 percent of black potential jurors and against 11 percent of white ones.
In their Supreme Court brief in the case, Flowers v. Mississippi, No. 17-9572, lawyers for the state focused narrowly on jury selection at Mr. Flowers’s latest trial, asking the court to ignore what had come before. The reasons Mr. Evans gave for striking the most recent jurors, they said, cleared the Supreme Court’s low bar. “A legitimate reason,” they wrote, quoting a Supreme Court decision, was “not a reason that makes sense, but a reason that does not deny equal protection.”
In 1989, when he was a law student at Yale, Justice Brett M. Kavanaugh wrote an article in The Yale Law Journal calling for vigorous scrutiny of the reasons offered for peremptory challenges where race may have played a role. The article’s epigraph came from Justice Thurgood Marshall’s concurring opinion in the Batson decision: “Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons.”
Justice Kavanaugh himself wrote that Batson’s promise should not be an empty one. “Courts must not allow the spirit of Batson to be diminished,” he wrote, “by misguided allegiance to the peremptory challenge.”