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In Supreme Court case about jury discrimination, Clarence Thomas breaks silence

Justice Clarence Thomas on Wednesday asked his first questions at Supreme Court arguments in more than three years. Arguments were almost over in a case about racial discrimination in the South when the court’s only African-American member and lone Southerner piped up.
Justice Clarence Thomas on Wednesday asked his first questions at Supreme Court arguments in more than three years. Arguments were almost over in a case about racial discrimination in the South when the court’s only African-American member and lone Southerner piped up.(Pablo Martinez Monsivais/Associated Press File 2018)

WASHINGTON — For the first 55 minutes of a Supreme Court argument Wednesday about racial discrimination in jury selection, the justices seemed united in their view that a white Mississippi prosecutor had violated the Constitution in his determined efforts to exclude black jurors from the six trials of Curtis Flowers, who was convicted of murdering four people in a furniture store.

As Flowers’s lawyer concluded her argument, Justice Clarence Thomas asked his first questions from the bench since 2016. He wanted to know whether the defense lawyer in the sixth trial had excluded any jurors. The lawyer said yes.

“And what was the race of the jurors struck there?” Thomas asked.

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White, said the lawyer, Sheri Lynn Johnson.

Thomas holds the modern record for silence on the bench. Before his questions in 2016, he had gone a decade without asking one. His explanations have varied, but he has said lately that the other justices asked so many questions that they were rude to the lawyers before them.

The balance of the argument went well for Flowers. Justices across the ideological spectrum said the track record of the prosecutor, Doug Evans, was deeply troubling.

In the first four trials, held between 1997 and 2007, Evans used all 36 of his peremptory challenges — ones that do not require giving a reason — to strike black jurors from serving. Three of those trials ended in convictions reversed on appeal, and one in a mistrial.

Official court records do not show the racial makeup of the jury pool for the fifth trial, in 2008, but the jury included nine white and three black people. It deadlocked, and the judge declared a mistrial.

Flowers’s case was the subject of examination by the podcast “In the Dark,” which raised questions about his guilt.

When Thomas spoke near the end of the argument, it jolted the courtroom. His three questions suggested both sides rely on racial stereotypes in picking jurors.

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Sotomayor responded that, with one exception, the defense lawyer could not have stricken any potential black jurors because Evans had already excluded them all.