Justice Clarence Thomas, who is known for his silence, shocked spectators in court Wednesday when he asked a question during arguments in a dispute over racial discrimination in jury selection.
Thomas's question, which marks the second time in a decade the court's leading conservative has spoken during arguments, came in the case of a Mississippi man who has been tried six times for the 1996 murders of four people inside a furniture store.
Thomas last spoke in February 2016 when he asked several questions during oral arguments in a gun rights case.
On Wednesday, Thomas waited until the very end of the hour-long arguments to ask if the defense for defendant Curtis Flowers, who is black, had struck any jurors from the sixth trial and, if so, what their races were.
Flowers’s attorney, Sheri Lynn Johnson, had just spent half the hour arguing that the prosecutor had relentlessly worked to keep black jurors from sitting on her client's trials and had just told the court she planned to waive a final rebuttal when Thomas spoke up.
She seemed surprised that the question had come from Thomas, but told him the defense had, in fact, also struck jurors and that they were white.
“But I would add that the motive, her motivation is not the question here. The question is the motivation of Doug Evans,” she said, referring to the prosecutor.
During jury selection, both sides in a case are allowed to strike a limited number of potential jurors without giving a reason, but under the Supreme Court’s 1986 ruling in Batson v. Kentucky these peremptory strikes can’t be used to exclude jurors based on their race.
Flowers argued that Evans struck every black panelist that he could during the first four trials, 36 in all. The fifth trial ended in a mistrial and there is no information in the record on the race of the jurors who were struck.
In the sixth trial, Evans took the first qualified black juror and struck the other five.
Flowers then challenged those strikes given Evans's past history of alleged discrimination. But the Mississippi Supreme Court ultimately affirmed Flowers’s conviction and death sentence, rejecting his claim that Evans had again racially discriminated in selecting a jury.
The Supreme Court is being asked to decide if a prosecutor's history of racial discrimination in jury selection must be considered when a court is assessing new claims of discrimination.
During arguments, a majority of the justices on the Supreme Court appeared to agree that Evans’s history had to be considered.
“Well, could we say in this case because of the unusual and really disturbing history, this case just could not have been tried this sixth time by the same prosecutor?” Justice Samuel Alito asked.
“That … you just can't untangle what happened before from the particular strikes in this case?”
Jason Davis, special agent to the state’s Attorney General, argued that the state Supreme Court had correctly deferred to the trial court, which considered the jury strikes and found the district attorney had offered valid race-neutral reasons for each.
Davis said the jurors were struck because they were either sued by the furniture store related to Flowers, or were friends with or had worked with members of his family.
The case drew national attention after it was chronicled in the second season of a popular true crime podcast known as “In the Dark.”
The Supreme Court could order a new trial for Flowers or affirm his current conviction. A decision in the case is expected by the end of June.
Updated at 2:30 p.m.