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June 7, 2010

Will sixth time be the charm in capital trial(s) of Curtis Flowers?

CNN has this interesting report on what appears to be a record-setting capital trial scheduled to start this week in Mississippi.  Here is how the piece gets started:

Curtis Flowers has stood before five juries in the past 13 years on capital murder charges, accused of killing four people in a Mississippi furniture store.  This week, prosecutors are hoping his sixth trial will be the last.

Flowers, 40, is believed to be the only person in recent U.S. history to be tried six times on the same capital murder charges.

Bertha Tardy, the owner of Tardy's Furniture in downtown Winona, and three employees were shot execution-style in the head the morning of July 16, 1996, inside the store, court records say.

The shootings rattled the sleepy central Mississippi town, with a population of about 5,500 that has declined in the 14 years since then.... After months of interviews and a $30,000 reward for information, Flowers was arrested in January 1997 on four counts of capital murder. He has been in custody ever since.

Flowers has been convicted three times and sentenced to death twice, but the Mississippi Supreme Court reversed those verdicts and ordered a new trial each time.  His two most recent trials ended in hung juries, leading his supporters to question why the Montgomery County District Attorney's Office continues to seek a conviction.

The prosecution's case is based largely on circumstantial evidence.  There is no DNA, the alleged murder weapon has not been found and eyewitnesses who say they saw Flowers the day of the shooting have provided conflicting accounts.  Still, Montgomery County District Attorney Doug Evans says it's a straightforward case of a disgruntled worker taking out his anger against his former employer.

Others, who believe Flowers is innocent, say the case has turned into a crusade and suggest that race has played a major role in the prosecution and convictions of Flowers. "The fact they're trying this case for the sixth time suggests to me there's some racial motivation here, because there's no way in the world I can see a white guy accused of doing the same thing being tried six times to procure a conviction," said Jackson City Councilman Chokwe Lumumba, who represented Flowers in his second trial in 1999.

Flowers' supporters say it is a classic example of a case built upon weak circumstantial evidence and shaky eyewitness testimony intended to blame an easy target: a poor black man.  "What does it say about the prosecution that they have chosen to ignore two jury verdicts?" said Alan Bean, executive director of Friends of Justice, a nonprofit organization that monitors due process violations in the criminal justice system.

"I really think the only way to save Winona from this nightmare is to force the Montgomery County district attorney to step aside and appoint the attorney general's office.  If you did that, I am convinced you wouldn't see the prosecution of Curtis Flowers, because the evidence just isn't there."

To Evans, though, Flowers' prosecution is about seeking justice for the victims and bringing closure to the community. "Any time that we feel there is evidence to prove a case, we're going to pursue it," said Evans, who tried the five previous cases and will lead the prosecution this time.

June 7, 2010 at 08:39 AM | Permalink


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This case is "straightforward" just like Louisiana vs. Kyles.

Posted by: Stanley Feldman | Jun 7, 2010 8:47:52 AM

At what point does the Fifth Amendment guarantee that the def may not be put in jeopardy again for the same offense? I understand that there is no problem trying him after the two successful appeals, but what concerns me is that this is the third trial after the state has failed to persuade the previous two juries of guilt.

I am aware of Perez and all that, but it just seems strange to me that the State can keep trying someone until they find a jury that will convict. My understanding is that the original intent of the Fifth Amendment was that a person is not to be put in JEOPARDY twice. Jeopardy attaches when the jury is sworn in. So, this will be the third jury sworn in and , therefore it seems to me, the third time he is put in jeopardy.

I also understand the "manifest injustice" exception, like a trial breaking down because someone gets sick, a snowstorm shuts down the court house, the defendant's family contacts the jury, and so forth.

But, I would be interested in what folks say about how many times the State can try someone when what has happened is that simply the previous juries did not believe that the state carried its burden of proof.

I am getting ready to litigate this issue in several cases and would appreciate anybody's thoughts.



Posted by: bruce cunningham | Jun 7, 2010 8:58:25 AM

bruce --

"But, I would be interested in what folks say about how many times the State can try someone when what has happened is that simply the previous juries did not believe that the state carried its burden of proof."

You may already be aware that the Court has rejected that argument as a basis for ending jeopardy, Richardson v. United States, 468 U.S. 317 (1984).

You are also going to have trouble with one of my contributions in the Fourth Circuit, United States v. Ndame, 87 F.3d 114 (4th Cir. 1996), which allowed a third trial after two hung juries.

Posted by: Bill Otis | Jun 7, 2010 10:13:38 AM

"I am getting ready to litigate this issue in several cases and would appreciate anybody's thoughts."

State v. Abbati, 493 A.2d 513 (N.J. 1985) is an interesting decision.

Posted by: JC | Jun 7, 2010 2:57:50 PM

it's CRIMINAL stupidity like this that makes me want to hang a few judges and politicians.

Sorry multiple trials on the SAME CHARGES are unconstutional.

this is nothing more than golorified forum shopping. Hoping the following judge and jury will be SICK of doing the same trial over and over and let you win just to be done with it.

i hope the man break's out and removes a few judges from this life on the way.

Posted by: rodsmith | Jun 7, 2010 6:12:37 PM


From a policy position, I believe a hung jury should be an acquittal. I would be willing to trade some at the edges, such as 11 to 1 for conviction being enough. I might go for 10-2 (which SCOTUS has already ruled okay for state courts) but no lower.

I believe the current requirement that acquittal be unanimous to end jeopardy violates the burdens of proof at the heart of a U.S. trial. If the government can't convince a jury beyond reasonable doubt that the defendant is in fact guilty that should be the end of it.

I might allow exceptions such as those you mentioned above, and some other circumstances might simply give rise to new crimes of which the old element are part.

I got a response from Laurence Tribe on this issue a few years ago, his answer was that hung juries exist because it's just the way it's always been done.

Posted by: Soronel Haetir | Jun 7, 2010 8:04:14 PM

I agree with you, Soronel. How many times can the state make a def "run the gauntlet" before he has been tried enough?

Can you send me your email address to me at btcunningham@earthlink.net? I would like to send you the article I wrote for the Federal Sentencing Reporter
on the question we were discussing last fall about misdemeanors kicked up to felonies due to recidivism. Doug published it about two months ago and I would love to hear your take on it.


Posted by: bruce cunningham | Jun 7, 2010 10:30:50 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB