21 June 2019


One decision from the Court this morning exposes several layers of abrogating responsibility. Including the Court.

In Flowers v. Mississippi, No. [29]17–9572 (21 Jun 2019) (PDF), the Court correctly held that a history across six trials and two decades of peremptorily challenging black potential jurors off a black defendant's criminal jury made the conviction of and death sentence imposed upon that defendant constitutionally unacceptable. This is in many senses a good decision, particularly as it makes clear that the proper test for a Batson violation (especially when asserting a pattern and practice) is the entire picture, not just individual juror treatment.


The courts (at all levels), bar, and populace at large have abrogated their responsibilities and made this "victory" a hollow one.

  • At a fundamental level, this case exposes the foolishness of direct elections for law-enforcement personnel (and judges). The prosecutor in charge at every stage of Mr Flowers' Koestleresque ordeal was an elected prosecuting attorney. And, as is made clear in the record and news reports, the same individual.
  • The Mississippi trial court facially erred by not requiring recusal of that prosecutor at some stage. Surely by the time there had already been two reversals of convictions for the same conduct as was before it, the trial court should have directed the matter be tried by a different individual. And after the third. And after mistrials.
  • The Mississippi Supreme Court facially erred in the same way, and further erred in not providing more explicit guidance on acceptable conduct.
  • The Mississippi bar authorities egregiously (but expectedly) erred in not imposing discipline by the time the third trial came around. Let alone the fourth, fifth, or sixth.
  • The US Supreme Court erred by not naming the attorney who perpetrated the misconduct, took up its time and attention, and brought discredit upon both the State of Mississippi and the profession of law with his bigotry. Indeed, by using circumlocutions like "the State" and "the prosecutor" throughout, one cannot tell that the same individual was responsible. Unless, that is, one takes the hint in Justice Alito's concurrence; or reads the petitions and briefs; or reads the bloody newspaper.

    This is bad writing. It is not respect for the State of Misssissippi, or the courts of that state, or the people of that state, to refuse to name a responsible person who also happens to be an elected official. That it's a longstanding tradition does not make it respectful… especially when the opinion names the victims and several prospective and actual jurors, who each appear to be blameless. By not naming the miscreant(s), the opinion allows — and through its repeated invocations of "the State" actually encourages — imputing individual misconduct to the entire state. That… is not respect for the state.

    The Court also erred in not directing that the matter be assigned to different counsel for the State of Mississippi on remand. Such an order would be about the integrity of the judicial function of courts of the United States, a matter well within its authority even when relating to state-court proceedings (and ditto for the Supreme Court of Mississippi). Failure to so direct creates the appearance to a reasonable person of a lack of impartiality, compare Code of Conduct for U.S. Judges Can. 1, 2 (Mar 2019) and 28 U.S.C. § 455.

Multiple layers of supervision have refused to decide to sanction, or even just temporarily incapacitate, this unfaithful-to-his-office elected official (who shouldn't be an elected official as a matter of principle, but that's something that both the courts specifically and American society generally have refused to engage with). That refusal to decide is a decision in itself. So even if Justice Kavanaugh gets partial credit for reaching the right result, he doesn't get full credit. Justice is a process, not just a thing, and it has to appear correct at every stage.

The buck clearly stops somewhere else for everyone. Flowers demonstrates why the standard is that "impartiality might reasonably be questioned," 28 U.S.C. § 455(a) — even when there is actual impartiality. And in this instance, the later conduct of the matter even after the Mississippi Supreme Court specifically found a Batson violation in a prior appeal calls not just impartiality, but fitness to serve as a government official and fitness to practice law, into more than just "reasonable question," see MS R. Prof. Cond. 3.3, 3.4, 3.5, 3.8, 4.4, 8.3, 8.4. The contrast with the profession's attempts in most states to raise the bar-exam pass score — for a type of exam that by design cannot test conduct or "impartiality" — at a time when more minorities and women are in law school than when the bar regulators were is, umm, disturbing.