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<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> We'll hear argument this morning in Case 17-9572, Flowers versus Mississippi. Ms. Johnson.</u>
<p id="ORAL ARGUMENT OF SHERI LYNN JOHNSON ON BEHALF OF THE PETITIONER">
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Mr. Chief Justice, and may it please the Court: The only plausible interpretation of all of the evidence viewed cumulatively is that Doug Evans began jury selection in Flowers VI with an unconstitutional end in mind, to seat as few African American jurors as he could. The numbers alone are striking. In the first four trials, Mr. Evans exercised 36 peremptory challenges, all of them against African American jurors. In the sixth trial, he exercised five out of six of his challenges against African American jurors. If we look at the numbers of his... regarding his questioning, they are likewise stark. He asked of the struck African American jurors an average of 29 questions. He asked of the seated white jurors an average of 1.1 questions. But these numbers do not stand alone. Mr. Evans was twice found to have discriminated on the basis of race in the exercise of his peremptory challenges against African American defendants in trials of the same case against the same defendant. There is no one who has a record of discrimination, adjudicated discrimination, like that of Mr. Evans.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> The history of the case prior to this trial is very troubling, and <w>you</w><w>'ve</w> summarized that. And it is... it is cause for concern and is certainly relevant to the decision that ultimately has to be made in the case. But if we were... and I'm not suggesting that this is the way it should be analyzed; this is not the way it should be analyzed... but, if we were to disregard everything that happened before this trial, and we looked at the strikes of the black prospective jurors as we would in any other Batson case, do you think you'd have much chance of winning?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> The evidence still is clear and convincing that Mr. Evans acted with discriminatory motivation in this case, even if we set aside his history and his... the reasons that he was unwilling to tell the truth in previous cases.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> I mean, if we look at... at the jurors in question one by one, there are aspects that I think would cause any prosecutor anywhere to want to get that jury... that juror off the jury. You know, <w>there</w><w>'s</w> a juror who said that she... she <w>could</w><w>n't</w> view the evidence objectively. She <w>could</w><w>n't</w> make a decision based just on the evidence. There's one who said that she... because of her acquaintance with members of the Flowers family, she would lean toward the defendant. Another one who admitted that she made a false statement on her juror questionnaire because she'd say anything to get off the jury. I mean, do you think those are... those are Batson claims that would likely succeed if this troubling history had not preceded this case?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> This Court has demanded a sensitive inquiry into all of the circumstances that prove racial discrimination. And, again, even setting aside his history, there are many circumstances here that suggest racial... racial motivation. First, as I already said, there is an extraordinary record of disparate questioning. And the disparate questioning is not limited to those numbers but to the tone of his questioning. I believe that one of the... the responses that you quoted came from an extremely aggressive pursuit of an African American juror who initially said she would not be troubled and ultimately said <w>it</w><w>'s</w> possible. Now, of course, a prosecutor could take that approach with every juror. If he took that aggressive approach with every juror, then there would be nothing to complain about. But he did not take that approach with white jurors. And then there is his out-of-court investigation of three African American jurors. And then there are...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> But what... what's wrong with that? Again, putting aside the reasons to be suspicious, if a juror says, I <w>do</w><w>n't</w>... I <w>did</w><w>n't</w> work... I <w>do</w><w>n't</w> work closely with the defendant's sister, I <w>do</w><w>n't</w> work close to the defendant's sister, and the prosecutor has reason to suspect <w>that</w><w>'s</w> not true, is there something wrong with the prosecutor going to the human relations person at that place of employment and bringing that person in to testify they actually work nine to ten inches apart? Is something wrong with that?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> There's nothing wrong with that if there was reason to disbelieve the juror. The juror volunteered that she knew her, that she worked in that place. There... Mr. Evans cited no reason that he should not believe her. But, also, what happens after that is somewhat suspicious, which is he brings someone in to say: Well, they worked very close together. And that someone says: And I could produce the evidence. And when asked to produce the evidence of that, the records that produce it, he <w>does</w><w>n't</w> come back with that evidence. 2 So I think we could certainly... a prosecutor could...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Wait.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... and a rich prosecutor might investigate all...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> What is your strongest...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Did he... did he have that witness ready that same day, or did...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> No, he brought the witness back the next day.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> The next day, okay.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> What is your strongest strike?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> I... I think the most... the clearest case is that of Carolyn Wright. Carolyn Wright... about Carolyn Wright, he made three false statements. The first statement he made was that her wages were garnished. That was not...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, actually, we have found that, in the record with a state exhibit on it, a judgment that shows that her wages were garnished.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> No, the wages... <w>there</w><w>'s</w> a mark that shows that there was such a request, but both the trial court and the Mississippi Supreme Court looked at that record and found that her wages had not been garnished. And in...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, we can look at that. We can look at the judgment. But the fact remains that she was... this was... one of the victims was the proprietor of... of a family-owned store, right? That's a family-owned store?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Correct.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> And the store... the store sued her?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Well, the store sued her. The victim herself had not sued her.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, but the store did.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> It's the son-in-law later that sued her.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> But, normally, <w>would</w><w>n't</w> that... you know, again, put aside the history. We... but we <w>can</w><w>'t</w>... in the end, we <w>can</w><w>'t</w> do it, but if you did, <w>do</w><w>n't</w> you think a prosecutor or any attorney would be very wary of having a... a juror who had been sued by one of the parties?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> I think that if this prosecutor had pursued bias with respect to white jurors as well as African American jurors, and then made that strike, then that would be a strike that would be a permissible strike. But, in fact, he <w>did</w><w>n't</w> do that. So, first of all, I do want to notice that this was one of four victims. It does seem rather unlikely that a person in a quadruple homicide case would be biased by a subsequent suit of one of the relatives. But, even if we thought that that were true, one would have imagined that the prosecutor would have inquired about bias with respect to the other victims.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Wasn't there a question asked of the entire array of whether they had any debts to the... to the store?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Yes, but there was no question asked about suits or disputes with other... with the other three victims, nor was there an inquiry into bias that I think any rational prosecutor would have made if concerned, truly, about bias, which was lawsuits, prosecutions of the jurors and their close relatives by his office. The prosecutor made no inquiry about that. If you were worried about bias, you would be worried about that. If you were...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Did he even ask Ms. Wright how she felt about that suit and whether it would affect her in this case?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> In fact, she was asked about the suit. And when she was asked about that suit, what she said is that she had paid the debt and that she had no ill will toward the Tardys. And, indeed, if we follow up on this reason, I think this reason is especially suspicious because he cited the same reason with respect to Edith Burnside. So, first of all, he said... with respect to Edith Burnside, he repeated the false statement that her wages had been garnished, despite the fact of having been called by the trial court on it the first time, and then he said that he was striking her in part on that basis. But Ms. Burnside had...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Can you go back, and... and just slow down a second? You said to Justice Alito that that record in... that state record that says something about garnishment, that the state courts found that that was not adequate. Could you explain why not?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Well...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> That judgment in the record, what is it or...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> The judgment...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that... <w>it</w><w>'s</w> not a... <w>it</w><w>'s</w> a form in the record, but what does it mean?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> The form in the record reflects a suit, and <w>there</w><w>'s</w> a little check by garnishment. But, if you look at the order at the end, there is no garnishment order. The trial court looked at that and the Mississippi Supreme Court looked at that. And I think they are the experts about what their documents mean. And they said there was no garnishment.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> What if... what if it turned out there were a garnishment? How would that affect your argument, if at all?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Well... well, then that would mean that he only made two false statements about Juror Wright. The two false statements were that she knew Flowers' sister, Cora, and that she knew Flowers' sister, Sherita. So then there would be two. But, if I could go back for a moment to Ms. Burnside, when he repeated the story, I think the... the pretext of this reason is apparent when we look at Ms. Burnside. Ms. Burnside worked for Ms. Tardy. Ms. Burnside worked for Ms. Tardy, caring for her mother. Ms. Burnside was helped during her divorce by Ms. Tardy. So whatever she might have felt negative about the son-in-law, the feelings she would have had about the victim herself could only have been positive. And yet he cited this same reason. When we look at that, what we see...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> <w>did</w><w>n't</w> Juror Burnside also say repeatedly she <w>did</w><w>n't</w> want to judge anybody?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> No, she did not... oh, Juror Burnside said...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Yes.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... that she did not want to judge anyone. She did say that. But I think what's...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> And you think <w>that</w><w>'s</w> not a legitimate reason for... for striking a juror <w>who</w><w>'s</w> going to have to judge whether someone <w>who</w><w>'s</w> accused of a serious crime is guilty or not?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> That is a legitimate reason for striking a judge... I'm sorry, for striking a juror.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> But the problem... the problem <w>is</w><w>n't</w> whether the reason is a legitimate reason but whether the reason was pretext. And when we look at what he did with respect to citing the relationship having been sued by the Tardys, it looks like everything he's saying is pretext. And if I could also go back to the rest of your question about Juror Wright. So there were three misrepresentations with respect to Juror Wright. There was also... they also cited the number of defense witnesses that she knew. But the prosecutor, Doug Evans, did not question prospective white jurors Waller, Lester, Blaylock, and Fields about their relationships with witness... with white... with defense witnesses, nor did he strike them when he had an opportunity to do so.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> But <w>is</w><w>n't</w> it true she also worked with the defendant's father?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> She worked in the same location as the defendant's father, but...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> She worked in the same store, right?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> She worked in the same store.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> At the world's smallest Walmart.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> That's what the...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> That's what they said.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... <w>that</w><w>'s</w> what the trial court described it as. But... but it is important to notice that when she was asked does he still work there, she <w>did</w><w>n't</w> even know if he still worked there. So <w>there</w><w>'s</w> really...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Yeah, but did she still work there?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> She did.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> I thought she had left?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> No, <w>that</w><w>'s</w> another juror with respect to... I believe with respect to Cora Flowers. But what I wanted to... she <w>did</w><w>n't</w> know if he still worked there, but...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Compare her with Pamela Chesteen. That comparison is the one that I'm most interested in.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> I was about to do that. And so I think that <w>it</w><w>'s</w> true that working with someone under some circumstances might produce bias. It is interesting that the only thing she said that might suggest the closeness of the relationship is that she <w>did</w><w>n't</w> know whether he still worked, and the... and Evans did not ask about the closeness of the relationship. Nor did he worry about the closeness of the relationship with Juror Chesteen and four or I think <w>it</w><w>'s</w> maybe even five of Flowers' family members. Juror Chesteen worked as a teller in a bank where all five of them came and she waited...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> She said that she knew the father as well.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Yes, she knew the father and the mother and two sisters and a brother. And Doug Evans...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But <w>is</w><w>n't</w>...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... was not interested in pursuing...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> ... <w>is</w><w>n't</w> that... that relationship of a bank teller to someone who comes to make a deposit different from someone who is a coworker and it would encounter someone in the work set... setting on a daily basis?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> It is a different relationship or it could be a very different relationship. We <w>can</w><w>'t</w> actually even know the closeness of either relationship unless there was inquiry. But Doug Evans did not make that kind of an inquiry. Indeed, what he said to Juror Chesteen is... and that was a purely professional relationship. He <w>did</w><w>n't</w> ask whether she had a close relationship, whether she was worried. He instead presumed, reassured, everyone that she did not.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> All the... all the... the questions that we've been addressing here are the same sort of questions you would get in a typical Batson case, looking at the circumstances of the potential jurors that were struck in this case. But, I mean, of course, as... as my colleagues have recognized, the case is unusual because you have the extensive history. And I think <w>that</w><w>'s</w> probably why the case is here for... for review. And I'm interested, because, obviously, the rule we adopt will apply in other cases, how far your argument that we need to look at the past history is... is pertinent. If... if the prosecutor had... had one Batson violation in his 30-year career, 20 years ago, is that something that should be brought out and pertinent in the assessment of the current Batson challenges?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Mr. Chief Justice, may I say one thing about Carolyn Wright that I <w>do</w><w>n't</w> want to forget?</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Sure.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> The other thing <w>that</w><w>'s</w> noteworthy about her is that she put on her death penalty questionnaire that she was strongly in favor of the death penalty. So, when we look at her as a whole, a... a... a prosecutor who was looking in a colorblind way would have been attracted to her.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Now for my question?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> But now... now for your question. And I apologize, but I was worried I would not get back to that. So I think this is an extraordinary case. I have combed the cases and I cannot find any case...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> No, no, I know <w>it</w><w>'s</w>... <w>you</w><w>'re</w>... <w>you</w><w>'re</w> fighting the hypothetical. My question is 30 years, a Batson violation 20 years ago, is that pertinent to the consideration in the current case?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> I'm sorry, I <w>did</w><w>n't</w> understand the question then. Yes, it is pertinent, but <w>it</w><w>'s</w> weakly probative. So I think, when we conduct a consensitive inquiry, we look, as we would in a criminal case, we look at how recent a fabrication has been, whether <w>it</w><w>'s</w> on a relatively similar matter, whether the person has the same motive. So a case that occurred 30 years ago would be very different in terms of motive. It also would be quite different in terms of the established law of this Court.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> So someone who violates Batson before <w>it</w><w>'s</w> announced or someone who violates Batson immediately thereafter, <w>that</w><w>'s</w> less probative than someone who has done so repeatedly.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> So... so what is... what is the rule you would have us adopt as a general rule, not just in a particular case as extreme as this one?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> The general rule is a rule that you have already adopted, which is that, in Stage 3, every factor that bears upon credibility is relevant. So <w>that</w><w>'s</w> the general rule. And I suppose if we say that in another way, the Mississippi Supreme Court asked only the question of is there a juror left... is there a reason for this juror left standing that is not contradicted by the record and exactly matched by a white juror. And <w>that</w><w>'s</w> not the right rule. The right rule is a sensitive inquiry.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Even...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Go ahead. Your turn.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> No, you go first.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> All right, all right.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Justice Gorsuch.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> All right. I want to pursue the Chief Justice's question just a little bit further so I can understand what you'd have us do in the next case. Let's just suppose this case, trial 6, was perfect and the strikes were without taint otherwise, but we have this history with this prosecutor. Would that be a problem still, or would there be no Batson violation in those circumstances?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> If there <w>were</w><w>n't</w> eight misrepresentations of fact...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Right.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... disparate questioning...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Right, right.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... all that stuff...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Right. You're fighting the hypothetical again.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... and <w>there</w><w>'s</w> only the history...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Yeah, yeah. The hypothetical is <w>let</w><w>'s</w> suppose that this case, there were strikes, but they were explained by non-discriminatory reasons. Yet we have...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> And there were no other...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... yet we have this prosecutor with this history. What then? How should the Court assess a case like that?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> If there are no other indicia of discrimination, then the defendant has not met his burden of proof by proving prior discrimination.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Okay. So we need discrimination in this trial in order to have a Batson violation?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Yes.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Okay. All right. That's helpful. Thank you.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> My question was about the history. I thought that Swain had said that the history was relevant. In fact, Swain said history was the only way you could prove a violation. What Batson did was to say no, you can look even at the individual case. But Batson, as I read it, did not say you no longer take account of the history. Your reading of Swain and how Swain and Batson interact?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> I think <w>that</w><w>'s</w> entirely correct, Your Honor. Even in Swain, history was relevant. And to look more broadly, in Arlington Heights, this Court said that history is relevant. So... and in Miller-El said that history was relevant. So there <w>is</w><w>n't</w> a new rule about history being relevant. The Mississippi Supreme Court ignored what this Court has already said about history being relevant. And...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> The court... the court...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> ... the broader point, that everything...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> ... the court said it took account of the history. So what are we to make of that?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Well, if there were... if the court had taken account of its... of the history, it <w>could</w><w>n't</w> have come to this conclusion. And I think <w>there</w><w>'s</w> many reasons in the opinion to believe that they did not. They said, considering the history, it <w>does</w><w>n't</w> alter our opinion, and they pasted in their prior opinion that was history blind. They also said his... his history does not undermine his stated reasons. That's wrong. It undermines those reasons. It may or may not be sufficient, but a history of will... of a desire for a... an all-white jury, a history of willingness to violate the Constitution, and a history of willingness to make false statements to a trial court, those things in the past with respect to at least three other jurors, that does undermine it. And then I think, when we look at what they actually did, there is no point in which they say: Yes, we are more skeptical of the reasons that he stated because he was dishonest before, or, yes, when I look at... at the false statements he made here, the eight false statements he made here, those match with false statements that he made before. They never did that. So I think they did not consider his history, nor did they consider anything else that would be consistent with this Court's insistence that we look at the totality of the circumstances and conduct a sensitive inquiry into.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Ms. Johnson...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> You say your strongest case is Juror, potential juror, Wright. One of your complaints is that there were many more questions asked of African American potential jurors, but that <w>was</w><w>n't</w> so in Wright's case, that she was asked, I think, only three questions. Is that...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> That's correct.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Yes.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> But I think, you know, it is... actually, the relevance of the disparate questioning is not merely to ask how many questions this juror was asked. So it might indeed be as the Mississippi Supreme Court said that, with respect to some African American jurors, it was legitimate to ask them more questions because more of them knew Flowers' family. But the... the point still remains... and this is the point that this Court made in Miller-El... disparate questioning of even another juror is relevant. It does suggest that the prosecutor is looking for reasons to strike an African American juror, as opposed to being interested in bias or death penalty attitudes or anything else.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Ms. Johnson, some time ago Justice Alito asked you about the prosecutor's investigation of certain potential jurors. And how many jurors did the prosecutor separately investigate and were...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Three.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> And all African American?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> All of them were African American. And when defense counsel said he's investigating African American jurors, <w>there</w><w>'s</w> no evidence that he investigated anyone else. He said nothing. So he had an opportunity to say, oh, I've investigated everyone, and he did not say that.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> And can I ask you about the disparate questioning? Because you referred to something which struck me when... as I read through all of this. This is... unlike some Batson cases you see, <w>it</w><w>'s</w> a very small town where everybody knows everybody, apparently, or many people know many people, and <w>it</w><w>'s</w> a largely segregated town, where you might think that African Americans knew more African Americans than they would whites or vice versa. So does that account for some of the differential questioning? In other words, just sort of looking at the environment and saying, I have to push more on whether X knew Y because, given the circumstances of the town, X might very well have known Y?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> The Mississippi Supreme Court said that it accounted for some of the differential questioning, and I think <w>that</w><w>'s</w> correct. There are more African American jurors who report relationships with defense witnesses or the defense family members. But there are five... five white jurors who report such relationships and whom the prosecutor did not ask questions about those relationships. So...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Such... when you say "such relationships," were they relationships because of working at the same place or living in the same neighborhood, in the case of the white jurors?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> They were... none of the relationships were working at the same place. But when... when he was asked... when... when they were asked in group voir dire about whom they knew, white jurors responded that they knew defense witnesses, and they were not questioned about those witnesses. So we <w>can</w><w>'t</w> really know what the nature of those relationships are if we <w>do</w><w>n't</w> ask questions.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Do you... do you have those names or is... is that in your brief someplace? I <w>do</w><w>n't</w> remember.</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> It is in the brief, but it is Waller, Lester, Blaylock, and Fields, as well as Chesteen.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I found it strange, but maybe you can... or unusual, I should say, not strange... unusual that there were some white jurors who had people accused of crimes in jail, relatives accused of crimes in jails. Were there any questions about how that affected those white jurors?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> No, there were no questions about that at all of three of them and I think a very brief question about... for two of them. And I think that goes to the question of, was he really investigating bias when he asked this question about being sued by Tardy Furniture? If <w>you</w><w>'re</w> really investigating bias, you would be concerned about bias against your office. And he was not interested in that. With the Court's permission, I will reserve the rest of my time for rebuttal.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel.</u>
</p>
<p id="ORAL ARGUMENT OF JASON DAVIS ON BEHALF OF THE RESPONDENT">
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Mr. Chief Justice, and may it please the Court: The history in this case is troubling, but the history is confined to this case, and, as Mr. Chief Justice pointed out, it is unusual. There are... this is the sixth trial in this small town, a small town of approximately <w>5,000</w> individuals. The questioning of whether the makeup or the limited number of individuals in the town was one of the reasons for follow-up questions is accurate. At the outset, let me say that the Mississippi Supreme Court's decision in this case was commensurate with Batson and its progeny. And I would return to Justice Gorsuch's question of if we disengage this troubling history... and I agree, I'm not suggesting that, as Justice Alito said... however, if we take that out of the case, we... we <w>do</w><w>n't</w> have any taints.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Could I just ask...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> We <w>can</w><w>'t</w> be...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... a question of the Mississippi law? Could the attorney general have said, you know, enough already, we're going to send one of our own people to try this case, preferably in a different county, where so many people <w>do</w><w>n't</w> know so many other people? Could he have done that?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Statutorily, the Attorney General's Office is allowed to assist, is allowed to take over, but only upon request by that district attorney. So that was not an option in this case. We were not so requested.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> You... you said if... if we take the history out of the case. We <w>can</w><w>'t</w> take the history out of the case.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> No, Justice Kavanaugh. I'm not saying <w>that</w><w>'s</w> what I'm saying exactly happened...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> It was 42... 42 potential African American Americans and 41 are stricken, right?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Yes, Your Honor, that is correct.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> We have to... <w>that</w><w>'s</w> relevant, correct?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> That is relevant, yes, Your Honor. The... as this Court has held in Miller-El, history is part of the consideration.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So you agree that <w>it</w><w>'s</w> not only the adjudicated Batson violations that are relevant but also the number of strikes such as Justice Kavanaugh listed?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I do with qualification. There... the strikes were unique. The strikes in this case are supported in the record. Each of the jurors that were struck either worked with a relative, were related, or knew, intimately, family members, the defendant or his family members, up to and including one juror who lied on her questionnaire and then admitted to lying on the stand.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> You have a very strange position on potential jurors who lied because there was the case of white juror, Huggins, who said he had no knowledge of the Flowers case when, in fact, he was on a 2007 voir dire panel. And you say: Oh, well, that <w>does</w><w>n't</w> matter that... that he lied because he <w>did</w><w>n't</w> admit to lying. I think if someone lied and <w>did</w><w>n't</w> admit to it, that would be a count against that person, rather than in that person's favor.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> And... and the trial court in this case made the distinction that the juror who was struck for lying on her questionnaire admitted on the stand that she lied intentionally, which was not the case with Juror Huggins. And it would seem, it appeared, that he... his participation in the panel, and he was dismissed long before he got anywhere near selection, that he either forgot that or it completely left his mind at the time he was initially questioned.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But <w>let</w><w>'s</w> go back to that. If we're looking at whether this is pretext, Mr. Evans was willing to give an excuse to this juror and keep him, despite the fact that there was direct evidence that he knew about the case. He was willing to accept a white lie, but not a truthful answer under oath in front of a judge. Doesn't that suggest pretext to you?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Again, Justice Sotomayor, the... the issue as it reads from the record is that the juror who lied on her questionnaire expressly admitted that she lied for the sole purpose of getting off the jury.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well...</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> And... and that <w>does</w><w>n't</w>...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... I have to tell you, if that were the case, I... I <w>do</w><w>n't</w> think one could take one juror and not push them on those questionnaires and come up to an intentional understatement or overstatement.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Again, Your Honor, that was... and this is one of the issues with this case, is that each one of these strikes that we have, we <w>do</w><w>n't</w> have one single reason. We have numerous...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> That...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> All right. Let... <w>let</w><w>'s</w> look at them. But you do have history. Trial 1: Five black juror possibles, uses peremptories, strikes all five. Trial two: Five black jurors possible, uses all five, strikes all five blacks. Okay. Trial number three: There were 17 black possible. He uses only 15 this time. Why? Because he ran out of peremptories. He only had 15. All right. Fourth trial: 16 black. He only struck 11. That's because he only had 11 peremptories perhaps. All right? Now we come to this trial with that background. Okay. And I <w>do</w><w>n't</w> think <w>it</w><w>'s</w> going to take much once you have that background. So now <w>let</w><w>'s</w> look at one black juror, one white one, potential. Okay? Let's call them 1 and 2. Both are women. Both are in their mid-40s. Both have some college education. Both strongly favor the death penalty. Now the potential black actually has a brother serving as a prison guard. Now you would have thought that might have favored the prosecution in the prosecutor's mind. Okay. So <w>that</w><w>'s</w> one difference. I <w>do</w><w>n't</w> think that cuts in your favor. Then have they ever had anybody arrested, you know? No, neither has. And do they know people in the case? Yeah. They each know something over 30 people, same, same, same, same. Now is there a connection with the Flowers family? Well, the black juror did, in fact, possibly work at some distance, we <w>do</w><w>n't</w> know quite what, with the father at Walmart, and the white one knew his father, mother, sister, cousin, through her work as a bank teller. 2 And then we get the last thing, which the Mississippi Supreme Court thought was so crucial, is that the... the black potential juror was sued for overdue credit, and maybe she paid the garnishment of $30. I <w>do</w><w>n't</w> know. But the white juror had been a friend of the victim's daughter in high school. Okay? There we have it. Potential black, potential white. And we have the whole background. Now, looking at that, you tell me, what was the difference as to why he could strike, if that background, Carolyn Wright, the potential African American juror who was Number 4, and Pamela Chesterton, the potential white American juror who was Number 17. What's the difference? What's the difference given all those similarities?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Juror 14, Carolyn Wright, was struck because she was sued by Tardy.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yeah.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Juror 14, Carolyn Wright, worked with the defendant's father, Archie, at Walmart.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yep.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> The distinction would be the...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Wait, wait. You <w>did</w><w>n't</w> add that Juror Number 17 had been a friend of the victim's daughter in high school and also knew Flowers' father, mother, sister, and a cousin through her work as a teller at the bank.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Wright's relationship with the father was a work relationship, an employee/employee relationship. Chesteen was a bank teller, admitted that she just saw them coming in through the bank. So this was a... an employee and customer relationship, which the Mississippi Supreme Court made a distinction.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> In other words, it was closer, the first relationship?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Well, the...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And the record when I read that will bear out that the first one really was a closer relation than seeing them every week or whatever as a bank teller.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Well, the record...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Will... will it say that? I <w>do</w><w>n't</w> think it will because I think they said, well, how closely physically did you work with the... the father? And there was no answer to that question.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> The... the record will bear out that the district attorney only struck those individuals that worked with members of his family. And that was consistent.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Okay. So <w>that</w><w>'s</w> the reason. The distinction is when I go back in the record, I have to say, knowing Flowers' father, mother, sister, cousin through the work as a bank teller is not a good reason for striking somebody. But working with Flowers' father at some unknown distance at Walmart is. And <w>that</w><w>'s</w> the crucial difference I will find. There is a difference there, but is there anything else? Because, after all, I have the history, plus... plus now I've narrowed it down... <w>that</w><w>'s</w> why I asked... I've narrowed it down to that being the difference.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Again, Justice Breyer, I would also say that one of the differing things was that she was sued by Tardy.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yes.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Which was a theme with at least one other...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Right. And so I also should look at that and then decide whether that really is more significant than the fact that Number 17 was friends with the victim's daughter in high school. You know, sometimes <w>you</w><w>'re</w> friends with your high school... your high school pals you <w>do</w><w>n't</w> forget. So... so I... so those are the two things I should look at. Is there anything else?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I think <w>that</w><w>'s</w> enough, Your Honor.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I mean, in many...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Well, I do too.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Is there any...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... in many respects, Mr. Davis, Ms. Wright is a... is a perfect juror for a prosecutor. Right? She is... she strongly favors the death penalty. Her uncle is a prison security guard. Her relative is the victim of a violent crime. Except for her race, you would think that this is a juror that a prosecutor would love when she walks in the door. Isn't she?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Not if she works with the defendant's family and not if she was sued by the workplace of one of the victims. And... and <w>that</w><w>'s</w> the distinguishing factor here.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Counsel...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I <w>do</w><w>n't</w> want to imply, I'm sorry, that you have directed me to the two relevant parts of the record, and before I make up my mind definitely, I will read those two relevant parts, both sides. Okay?</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Again... counsel, again, we're sort of conducting this as if it were one... one case. And in terms of a broader rule, do you... do you recognize or do we recognize in our precedent any restriction on the prior history that can be brought up with respect to a current... current case?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> No, Your Honor. And... and far be it from me to presume the full basis for the grant, but I certainly see that as one of the issues before the Court, is, as Your Honor asked, how far are we to go? And... and... and what does it matter? What... what part does that history play?</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> But my point is do you... is there anything in our precedent that suggests that there ought to be a limitation on looking to the history of the prosecutor involved?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> There's no limitation on the history. I think certainly the precedent says that you have to consider it. I'm not aware of any language in Batson and its progeny for this particular circumstance where we have six trials by the same district attorney. I'm not aware of any. This is a unique situation in that regard.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> And... and along those lines, Justice Breyer's pointed out a dichotomy that in other circumstances might be explicable by an innocent reason. But, if all of the history is relevant, as you acknowledged, how... does that... what light does that shed on what otherwise might appear to be an innocent strike? And when... when should... what rule would you lay down... I know <w>that</w><w>'s</w> hard to do, but we're presumably taking cases to guide future disputes, not just to resolve this one. How... how would you... how would you write that rule as to the relevance of the past information with... when we're looking at the current trial?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> In responding to that, Your Honor, let me say that when we use the word "history," we are limiting it to this case, this district attorney and his over 25 years of experience, having searched for additional cases and no cases cited by the Petitioner, outside of this case, in regards to a Batson violation. So the history is limited here. The question then is what to do in a case like this. How much does the specter of those two prior violations come into play in the... in the analysis in this? I think it certainly has to be looked at. I believe the trial judge...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Is it just the specter of the two violations? Weren't there two cases that were overturned or... in which prosecutorial misconduct... at least the first was overturned on prosecutorial misconduct. They <w>did</w><w>n't</w> even reach the Batson challenge.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Yes, Your Honor.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But <w>does</w><w>n't</w> that tell you something about this man's passion for this case? I... I <w>do</w><w>n't</w> even need to call it anything else, but <w>does</w><w>n't</w> that tell you how you should be looking at this case?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I... I <w>can</w><w>'t</w> speak to his passion for the case, Your Honor. I can speak to his pursuit of conviction in this in the sense of the six trials, which... in which there... there were...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But he <w>did</w><w>n't</w>... I understand he <w>did</w><w>n't</w> ask the attorney general to step in, which he could have, to prosecute the case. But I understand he lobbied two legislators to try to change the venue, legislatively. Is that correct?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> That's my understanding, Your Honor.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So he could try the case?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Well, try the case outside of Montgomery County.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Instead of getting the attorney general to try the case?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> And... and I would again reiterate...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> In his own county?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Yes, Your Honor. And... and we are strictly prohibited from inter... interjecting ourselves in cases we tried, not in this case but in another case, and our supreme court...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> In Batson...</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> ... said you <w>can</w><w>'t</w> do that.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Sorry, in Batson, we held that a prosecutor cannot state merely that he challenged jurors in the defendant's case... of the defendant's race on the assumption or his intuitive judgment that they would be partial to the defendant because of their shared race. That was really the critical sentence in Batson, and the dissent disagreed with that. The critical change. You <w>can</w><w>'t</w> just assume that someone's going to be favorable to someone because they share the same race. And when you look at the 41 out of 42, how do you look at that and not come away with thinking what was going on there was what the dissent in Batson said was permissible, that the majority said was not permissible, that <w>there</w><w>'s</w> a stereotype that <w>you</w><w>'re</w> just going to favor someone because <w>they</w><w>'re</w> the same race as the defendant?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I respectfully, in this case, in no way agree that there was some prior determination made by the district attorney that... that because of this person's race, they were not going to be favorable. Again, this case has spanned some 23 years now in this small community. One of the inherent problems that...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But I... I guess I <w>do</w><w>n't</w> understand how you can say this. In this case, there were three adjudicated Batson violations.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Two.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Okay, two.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Two. The... Flowers III and Flowers II both had adjudicated Batson issues. That the trial court was aware of that was evident. The same trial judge presided over the fifth trial. And in this case, we had the same defense counsel. Counsel moved in motions that were offered in the fifth trial up to and including, in Joint Appendix 42, Motion Number 57, which was a motion to bar prosecution from exercising peremptory strikes at all or at least from exercising them against non-white minority members. Judge Loper adopted his prior rulings. His ruling on that motion also included caution, caution to both parties that if <w>there</w><w>'s</w> any objections or challenges based on demeanor or based on a juror's appearance, that if it <w>was</w><w>n't</w> in the record, he was not going to consider it.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Did we have some...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I'm sorry, counsel, did you just...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... <w>could</w><w>n't</w> we say of this... go ahead.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Justice Sotomayor.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Did you just say that the same judge who tried the fifth trial also tried the sixth... the sixth trial?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Yes, Your Honor.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And <w>was</w><w>n't</w> he the judge that ordered Mr. Evans to prosecute the sole holdout juror in the fifth trial?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> There...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And <w>did</w><w>n't</w> Mr. Evans do that?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> There...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And the attorney general take over the case and say there was no basis for that prosecution?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> There were two jurors that were bound over to the grand jury on the basis of perjury. One pleaded guilty to that, and the other was nolle-prossed. Again... and that was handled by the Attorney General's Office, not my division but another.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But I think the attorney general nolle-prossed it because there was no basis for that prosecution.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I <w>do</w><w>n't</w> know that there was not a basis. I just know that it was nolle-prossed.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> May... may I ask you about...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, could we say in... 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? That he... that he just cannot... in light of the history, you just <w>can</w><w>'t</w> untangle what happened before from the particular strikes in this case?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> But, again, Your Honor, you know, hindsight is 20/20. I... I was not involved in any consideration on that. Had I been, it... it might have been a suggestion of mine that that be the case, but that <w>was</w><w>n't</w>. And... however, the record in this case by no means supports the conclusion that the Mississippi Supreme Court's decision ran afoul of Batson or its progeny. And... and if I may, I'd like to return to what I was saying about the trial judge's being aware of the history. Specifically, Judge Loper said, at... the transcript at page 314, "I know what Flowers III said." He then cautioned the state: "I'm going to look very closely at this case." Again, the judge acknowledging that he would be diligent in making sure the same type of error did not occur again.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But what... well, how closely did he look? I mean, <w>let</w><w>'s</w> talk... talk just about the questioning in this case. The numbers themselves are staggering, the number of questions that were asked to African Americans versus whites. But more than the numbers, if you look at the... the way... what these questions were targeted to do, <w>let</w><w>'s</w> take, for example, the questions on the death penalty. This prosecutor would question a white person who said that he or she had reservations about the death penalty, and the questions are all designed to rehabilitate the person. You know, the prosecutor would say: Well, if the law required you to do it, you could follow the law, <w>could</w><w>n't</w> you? And then the person would say yes. But if an African American said that... that he or she had qualms about the death penalty, the prosecutor would say the exact opposite. The prosecutor would say something like, well, it would be really hard for you to apply the death penalty then, <w>would</w><w>n't</w> it? So, in every case, this kind of disparate questioning, you know, it... it looks as though he's... he's designing, he's trying to create a record for striking black jurors that... and... and... and for distinguishing black jurors from white jurors by means of his questioning, which is sort of, you know, completely opposite from the questioning that he gives to whites.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I think the questions that the district attorney asked were a direct result of those responses these particular jurors provided in general voir dire. And...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, I think what I'm saying is <w>it</w><w>'s</w> not two jurors, one white, one black, says, I have reservations about the death penalty, and he says to the white one: But you could follow the law. And he says to the black one: Well, I <w>do</w><w>n't</w> know, I guess you <w>can</w><w>'t</w> follow the law.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Respectfully, Your Honor, <w>that</w><w>'s</w> not the case as I read the record. The... each juror that indicated they were against the death penalty is certainly one that, in a general context, that a prosecutor would not want to be on the jury. And, of course, we had in this case vacillation amongst these jurors, for example, Flancie Jones, who on her juror questionnaire said she was strongly against the death penalty and then, during questioning, said she could consider it, but then went on to admit that she lied on her juror questionnaire. So the questions that the district attorney asked were to follow up on what was on the juror questionnaire with regard to their statements therein regarding the death penalty. In this case, the record itself shows that the district attorney offered valid race-neutral reasons for each strike. Each strike was considered by the trial court, who had made aware... made the parties aware of... that he was aware of the history of the case, and the record supports that all the jurors that were struck were struck because they were either sued by Tardy Furniture, they were either related to the defendant, or friends with, or had worked with members of the defendant's family. And these are all valid race-neutral reasons.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But there were no questions of white jurors who said they had a relationship with defense witnesses. There were no follow-up questions for them. They just said, yes, they knew defense witnesses.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> The only... to my recollection, Justice Ginsburg, is Pamela Chesteen, who indicated that she knew Flowers' family but only because she was a bank teller and she'd seen them come in. Again, that was a general question.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But we <w>did</w><w>n't</w>... we <w>do</w><w>n't</w> know what the relationship of the others were because they <w>were</w><w>n't</w> asked. They said they had a relationship with defense witnesses, but they <w>were</w><w>n't</w> asked what is the relationship.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I... I'm sorry, I misunderstood. Regarding the ones that said they knew these witnesses in the case, Your Honor, yes. And the Mississippi Supreme Court noted that, that they were. And, again, this is part and parcel of the issue with this unique case, is that, you know, <w>5,000</w> people in a town, everybody knows everybody, and everybody knew everything about the case. And the Mississippi Supreme Court noted that these witnesses on both sides knew numerous witnesses for both the prosecution and the defense. And that is, of course, but one part of the analysis. You have to look at the reasons that the... that were offered by the district attorney. And in this case, they all support the strikes that were made.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Well, the... part of Batson was about confidence of the community and the fairness of the criminal justice system, right?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Yes, Your Honor.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And that was against a backdrop of a lot of decades of all-white juries convicting black defendants. Swain said <w>let</w><w>'s</w> put a stop to that but really <w>did</w><w>n't</w> give the tools for eradicating discrimination, so you had another 21 years of that, until Batson. And then Batson said: We're going to give you the tools to eradicate that so that the... not just for the fairness to the defendant and to the juror, but that the community has confidence in the fairness of the system. And can you say, as you sit here today, confidently you have confidence in the... how this all transpired in this case?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> I have confidence in this record, Justice Kavanaugh. I have confidence in the strikes that this district attorney made based on the four corners of this record. I have confidence that, if reviewed with an eye towards what actually transpired, it supports the Mississippi Supreme Court's decision in this case. That I have confidence in.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Thank you.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Do you have confidence in how this case was prosecuted?</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> Based on this record, yes, Your Honor, I do.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> You know, I... one of the first things I did when I found this case was to try to do some research because at least my former state prosecutor's office would have substituted attorneys long before the fifth, sixth trial. Regrettably, I <w>do</w><w>n't</w>... <w>was</w><w>n't</w> able to find any formalized guidance on that. But it does seem odd to me that any prosecutor would continue to try a case with this history.</u>
<u loc="MR. DAVIS"><w>[MR. DAVIS]</w> And, again, I would agree completely, Justice Sotomayor, that we have an unusual circumstance, an unusual case with these six trials having been all tried by the same prosecutor. But I would resubmit, again, that the decision of the Mississippi Supreme Court in this instance was not violative of Batson and its progeny. Thank you, Mr. Chief Justice.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. You have four minutes remaining, Ms. Johnson.</u>
</p>
<p id="REBUTTAL ARGUMENT OF SHERI LYNN JOHNSON ON BEHALF OF THE PETITIONER">
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Unless this Court has further questions, I will waive rebuttal.</u>
<u loc="JUSTICE THOMAS"><w>[JUSTICE THOMAS]</w> Ms. Johnson, did you... would you be kind enough to tell me whether or not you exercised any peremptories?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> I was not the trial lawyer.</u>
<u loc="JUSTICE THOMAS"><w>[JUSTICE THOMAS]</w> Well, did your... were any peremptories exercised by the defendant?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> They were.</u>
<u loc="JUSTICE THOMAS"><w>[JUSTICE THOMAS]</w> And what was the race of the jurors struck there?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> She only exercised peremptories against white jurors. But I would add that the motive... her motivation is not the question here. The question is the motivation of Doug Evans.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> She <w>did</w><w>n't</w> have any black jurors to exercise peremptories against... except the first one?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Except the first one.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But so did the prosecutor, except that one?</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Correct.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> After that, every black juror that was available on the panel was struck...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> Yes.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... by...</u>
<u loc="MS. JOHNSON"><w>[MS. JOHNSON]</w> He struck one... he seated one African American juror, and at the very end struck one white juror. When all of the evidence in this case is considered, just as in Foster versus Chapman, the conclusion that race was a substantial part of Evans' motivation is inescapable, and the Mississippi Supreme Court's conclusion to the contrary is clearly erroneous. Thank you.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. The case is submitted.</u>
</p>
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