On appeal again is the death penalty case of Curtis Flowers v. State of Mississippi
Oral argument is at 1:30 p.m. today and can be seen here at that time.
Flowers has been tried over and over again for the July 1996 shooting of the owner and three workers at a Winona furniture store from which he had been recently fired. There have been mistrials. When Flowers was convicted, his conviction has been reversed. This has happened three times thus far with reversals on Dec. 21, 2000 (case no. 97-DP-1459), on April 3, 2003 (No. 1999-DP-01369) and on February 1, 2007 (2004-DP-738). (If anyone is thinking these reversals are because we have a super liberal Supreme Court, think again).
Sherry Johnson of Cornell Law School is representing Flowers along with Allison Steiner of the Office of the State Public Defender
She starts out with (paraphrased) “The case is extraordinary in the United States in the number of trials, the lack of credible evidence and the cheating that has been done by the state.”
Justice Waller admonishes Ms. Johnson to avoid the use of the word “cheating” because it is harsh. Justice Lamar clarifies that Ms. Johnson only became involved with the case on the appeal of this instant case.
Justice King asks what weight should the court give to the misconduct that has occurred in the past? In other words, how does that affect this case.
Johnson – it shows intent.
Johnson – the state lied about various matters in the closing argument.
J. Peirce was there an objection to any of these statements.
First issue is timing/opportunity: the state’s witnesses contradict each other in numerous ways. Most could be attributed to stale memories but there was one real mistake. Sam Jones who discovered the bodies. Said he got a call from the store about 9 a.m. Testified he arrived at the store before 9:30.
J. Lamar: but he placed the 911 call. He testified he was there 15 minutes before the call.
Johnson: when he arrived at the store is critical – between 9:15 and 9:30 – Porky Collins say two people arguing (Collins and the perp). Collins said he saw this argument was after 10:00 a.m.
The problem is that the perpetrator of 4 killings doesn’t wait around to get caught. To fix this, the pros. argued in closing that Jones testified that he came into the store about 10:00.
Randolph: Couldn’t the pros. argue the inference that he arrived at about 10?
Johnson: that might be true. But it’s a lie to say he arrived at 10:00. This is an improvement over Flowers II.
On motive: there was no evidence of a beef with the store.
Justice: Did Simpson testify he was mad at the store?
Johnson: No. He did not testify to that.
J. Dickinson: What significance do you place on the fact that he didn’t show up for a few days and had to call to find out whether he still worked there? This incident about losing the batteries happened one day. Flowers doesn’t come to work for a few days. Then he calls to find out whether he has a job.
J. Waller: Why wasn’t it a reasonable inference that he was mad about being charged for the batteries and then being fired?
Johnson: you can argue that he must have been mad. But there was no evidence he had a beef.
But the DA’s description of Collin’s id. of Flowers was also flawed. Collins was shown two lineups. He said the photo of Simpson looked like the person he had seen. The DA turns this into “they guy ain’t in there.” THis is just not what happened.
J. Lamar: was this explored in direct and cross?
Johnson: Collins was dead by then. His testimony was read.
J. Waller: no objection, right?
Johnson: the characterization that the bodies were all in a pile was also false.
Lamar: Were there photos?
Lamar: so they had the evidence that showed that they weren’t in a pile?
Dickinson: why is this important?
Johnson: this was the mildest of the mischaracterizations. But it is difficult to see how one person shot four people, three and close range, one not.
J. Lamar: you content this is reversible?
Lamar: why is it too much for the court to expect [defense attorneys] [she says prosecutors, I think] to make contemporaneous objections?
Johnson: The state cites Carrothers but that is a completely different case. This is sui generis. The things that make Flowers stand out aren’t just one thing: he’s darker, he has a receding hairline, etc. Collins was shown a line up. He says that looks sort of like him. He got another line up (signaling the first id was wrong). WHen he again points out a picture that looks like the perp, he is asked whether he knows Curtis Flowers. This is suggestive. Collins’ initial description was slim. His ability to see the person was limited. The id was made 39 days later. WHen he is asked to id Flowers IN COURT, he isn’t sure.
J. Chandler was questions about the Scott Neushatz aff.
CJ. Waller has questions about Batson.
Johnson discusses the discrimination in the earlier cases. J. Lamar says she wants to hear about this case. Johnson says it is possible for a pros. to mend his ways but the fact that he discriminated in two prior trials is a relevant fact to be considered here.
J. Lamar: I want to hear about this trial.
Johnson: He kept the first black juror even though he knew Archie Flowers. He then struck the next 5 blacks (all women). He used disparate questioning on this which under Miller-El is a factor. He then mischaracterized what their responses were. You take all of that . . .
J. King: would you id. the specific mischaracterizations.
Johnson – Carolyn Wright. The DA says she knows almost all the defense witnesses. She actually knew more pros. witnesses. The DA said she knew Serena Baskin. That was not true. He also said she had her wages garnished. There was no evidence of that.
J. Dickinson: she worked for Archie Flowers Sr. I’m not sure that is equated with the white juror who worked in a bank where x banked.
J. King: Would you clarify the working relationship between Wright and Flowers.
Johnson: she worked at the same facility (Wal Mart).
J King: is there anything about the closeness of the relationship
J. Pierce: racial makeup?
Johnson: Venire was 28% AA. Jury had 1 black juror (8%)
J. Lamar: alternates?
Johnson: one of three was black
J. Chandler – looking at the judge’s reasons for not allowing Dr. Neushatz to testify about the identification.
Johnson – it is impossible to say there is a known rate of misidentifications.
J. Chandler: so the defense attorneys submitted him as a witness knowing he would not be allowed to testify
Johnson: no. the jury would have found useful the factors that make an if. less reliable.
J. Chandler implies Daubert requires there be a known error rate for the evidence to be admissible.
Johnson: I don’t think Daubert requires that. I think it would have been within the judge’s discretion to admit that evidence. Don’t necessarily say that it was not an abuse of discretion to deny it.
J. Chandler – if the research doesn’t yield a rate of error, it isn’t admissible.
Johnson – I don’t agree that’s what Daubert says.
J. Chandler is obsessing.
J. Dickinson: did the issue of the error rate ever come up during the Daubert hearing?
Johnson: No. THis is an interesting discussion but this wasn’t even a cross-racial id.
J. Chandler: starts quoting from Loper’s ruling.
Melanie Thomas argues for the State.
she introduces a bunch of people.
J. King: given the fact this case has been previously reversed. What weight should this Court give this to the mischaracterizations and the Batson issue.
Thomas: if there were changes, then no weight,
J. King: what did the state do differently with each of these issues. Tell me without he editorializing.
Thomas: never said that he testified that he arrived at 10. We argued that he arrived at 10. This was a reasonable inference. He called 911 at 10:20. We submit that Jones’ testimony was contradictory. It was impossible for him to be doing all the things he claimed to be doing at the same time. Everything the DA said was a fair comment on the evidence.
The beef with the store: the family told the police they considered Flowers to be a threat.
J. King: that’s the family’s perception. WHere’s the evidence?
Thomas: I think that’s evidence.
J. King: But any evidence as to his attitude and not just the family’s perception
Thomas: reasonable inference when he got his paycheck docked for the batteries and then he got fired.
J. King: the question is what evidence is there of his attitude.
Thomas: Yes. He’d been fired. He had his paycheck docked.
J. Dickinson: Jones, as I understand the defense’s issue, it is a misstatement of the arrival time. I did not understand that to be the same issue in the prior case. THat involved the timing of the call from Bertha Tardy. I don’t see where the court admonished the state on the evidence of Jones’ arrival at the store.
J. Dickinson: so the state was admonished about misstating the time of the telephone call. Did it also admonish the state regarding Jones’ arrival time? I don’t think so.
Thomas: that is right.
J. Dickinson: for the state to conclude he got there at 10:00, your position is there is no error.
J. Dickinson: what difference does it make where the bodies were found if there was no issue as to how many shooters? (all were killed were by one gun)
J. Kitchens; are you telling me the crime lab conclusively stated that all four were killed by the same weapon. SOme of the bullets were mutilated.
Thomas: it did do so. All were killed by a .380.
J. Kitchens; they never found the gun?
Thomas: the lineup. Collins positively identified Flowers in the second lineup. He did not identify anyone in the first lineup. The suppression hearing in 1999, Lumumba read into the record police notes. The notes said that Collins said three people looked similar to the perp. One was Doyle Simpson. Collins said he resembles the person but that the hairline is different. At trial he could not remember picking out Simpson.
Court takes a 20 minute break until 3:20.
And we’re back.
Thomas: T. 2123. The forensic expert testified that the five cartridges came from Simpson’s gun. Other fragments were consistent.
Flowers was not the only one in the 6 pack or the 12 pack fitting Collin’s description.
The police here – Collins looked at the lineup a month later. By this time, the police were already looking at Flowers.
J. Waller: address jury selection.
Lamer: did the court find a prima facie case?
Thomas: Yes. They used five against AAs.
Lamar: so the state had to provide race neutral reasons.
Thomas: All five of those worked with Flowers’ father OR were sued by Tardy furniture.
Dickinson: do you believe that a prior finding of a part. prosecutor of discrimination is a factor to be considered.
Thomas: only if the defense has made a prima facie case.
Once we get to race neutral reasons, you have to look at he reasons.
Dickinson: why would not past discrimination be just as instructive on whether a particular race neutral reason is a pretext.
Thomas: I’m stating what the law is.
Dickinson: you are saying there is a case saying it is not probative of pretext?
Thomas: no. I’m saying the defense hasn’t come up with a case saying it is.
J. King: One of the issues raised is that there was a difference in the questioning between white jurors and AA jurors. There did seem to be more extensive questioning of the black jurors. Average of three for white jurors. Ten for black. IS that a consideration?
Thomas: it can be. All of the jurors were asked whether they were sued by Tardy furniture.
J. King: the state said that Burnside and Wright had been sued by also garnishments. I don’t see anything in the record about garnishments.
Thomas: I can’t find anything in the record.
J. King: Wright working with Flowers’ father. IS there anything in the record that speaks to the working relationship. Any effort to inquire?
Thomas: The judge noted this was one of the smallest wal marts.
J. King: can they be race neutral but also be a pretext? There were extensive questions asked of the black jurors regarding their relationship with the Flowers. Am I correct that the same extensive questions not asked of the white jurors.
Thomas: in all circumstances there were not.
J. King: this court made a prior finding that there was a Batson violation. DO we simply ignore that when we analyze the record before it.
Thomas: For the sake of argument, let’s talk about it. In Flowers 3, the state made outright errors with regard to characterizing the jurors’ statements. We don’t have that here. We just don’t have the error we had in 3.
J. King: Cunningham – the state went to great lengths to call an outside witness to testify regarding the relationship between Cunningham and the sister. The sister said that wasn’t close. Is there any evidence they did that with white jurors? Cunningham was asked to come back and testify under oath. In Flowers 3, the state charged two potential jurors with perjury. Was there any reason for the state to call Cunningham again even though she answered the question.,
Thomas: she answered in a way the state thought was a lie.
J. ?: Her employer was called and he said they worked side by side. She said they worked on the opposite sides of the building.
Thomas: The blacks were questioned more because there answers required follow ups.
J. Dickinson: your explanation as to why the blacks were questioned more, does that account for them being questioned 4 times as much as the whites were.
J. Randolph: all the jurors, white and black, were asked if they had any experience with Tardy furniture.
Thomas: defense trial counsel conceded that the white jurors did not have the same connections as the black jurors.
Dickinson: Of course, the defense could have asked all of the white jurors these same questions so we would have a record.
Mr. Collins never said “he ain’t there.” He pointed to Simpson’s photo and said he might be him or he looked like that.
Looking at the lineup which is reproduced in the brief, the photo of Flowers jumps out at you.
Dickinson: WHat about the word “but” in the first lineup. He said it looks like him but . . .
Johnson: he never says “he ain’t there.”
J. Dickinson: what would be wrong with presenting another lineup if the witness says, he looks like this person but not exactly.
Johnson: no need to do an immediate lineup. ANd certainly do not need to ask “do you know Curtis Flowers?”
J. Lamar: But the lineup did not have names on them?
Johnson: Collins had said that he did not know the person he saw so there was no reason to ask him whether he knew Curtis Flowers.
J. Dickinson: When they say do you know Flowers, they are implying that he is one of these people.
Johnson: yes. There was no positive id until the cops said “do you know Curtis Flowers.” They asked him this right after he said that the picture of Flowers might be him.
J. Pierce: did anyone make the two shooter argument
Johnson: there were 4 jurors who acknowledged a relationship but they were asked only one question each.
J. Lamar: but where were they in the selection?
Johnson: I don’t know. I’ll be glad to supply that information to the court. The number of questions was so wildly disproportionate as was the outside investigation done by the state of the black jurors.