The aspiring jurors suing District Attorney Doug Evans don't have standing to bring their proposed class action because only one of them has ever actually been struck from a jury by Evans, while the others have never even been called to jury service, a split panel said in a decision Thursday.
The one plaintiff who was removed from a jury by Evans was struck because she stated during voir dire that she couldn't vote for the death penalty, a removal that the state's Supreme Court upheld, the panel added.
"Injury would require that a plaintiff one day is called for jury service in a case assigned to Evans's office; the prosecutor seeks to remove the person from the jury due to race; an independent decision-maker — namely a trial judge who reviews a Batson challenge — then fails to block the use of the discriminatory strike," U.S. Circuit Judge Leslie H. Southwick wrote for the panel's majority.
"Yes, those events have happened to others, but we find that the plaintiffs have not demonstrated a 'real and immediate threat' or a 'substantial risk' that all those events will occur to one of them," the decision went on.
The Attala County chapter of the NAACP also lacks standing since its members similarly cannot show a risk of harm, the panel said.
The local NAACP chapter, along with four individual Black citizens, sued Evans in 2019, alleging that "Evans' policy, custom or usage of racial discrimination in jury selection" violated the 14th Amendment rights of Black prospective jurors, according to the panel.
Evans, the district attorney for Mississippi's Fifth Circuit Court District, gained notoriety as the lead prosecutor who tried African American defendant Flowers six times for murder, repeatedly using peremptory strikes against the only prospective Black jurors and eventually seating juries that were either all white or nearly all white.
Flowers was convicted of murder and sentenced to death in four of the six trials. All four of those convictions were overturned due to instances of prosecutorial misconduct or Evans' actions during jury selection, according to Thursday's ruling.
In 2019, the U.S. Supreme Court threw out Flowers' most recent conviction, saying that Evans had been "relentless" in trying to use peremptory strikes against every single one of the 36 Black prospective jurors over the course of the first four trials.
A Mississippi federal court originally tossed the NAACP's suit against Evans, ruling that abstention was warranted because the plaintiffs have other avenues of relief available to them in state courts and because their request for injunctive relief would likely interfere with state criminal proceedings.
The Fifth Circuit in its ruling Thursday did not reach the abstention issue, choosing instead to affirm the lower court ruling based on the plaintiffs' lack of standing.
If the prospective jurors in this case had been struck from jury rolls based on their race before a court proceeding took place, they would have standing as "nothing more needs to be demonstrated to show they will not be selected as jurors," the panel wrote.
"The likelihood of difficulties for the plaintiffs in the current case are much less imminent," according to the panel, since it is unlikely that any of these specific prospective jurors would be called for jury duty, assigned to a case before Evans and struck from the jury without interference from a judge.
"We simply do not see a sufficient threat of a constitutional injury," the judges said.
But the idea of "imminent" harm is "a question of probability," U.S. Circuit Judge Gregg Costa wrote in his dissent.
"And these Americans seeking to perform their civic duty are just as likely — and actually more likely — to be called for jury duty in the near future than plaintiffs in other cases we have allowed prospective jurors to pursue," according to Judge Costa.
Attala County, Mississippi, is small, so its residents are more likely to be summoned for jury service than are the plaintiffs in other cases in which prospective jurors have been allowed to challenge discriminatory jury practices, Judge Costa pointed out.
And just last year, the court affirmed that a disabled potential juror had standing to challenge the inaccessibility of his local courthouse, he added.
"It should not matter whether discrimination occurs before or after a juror arrives at the courthouse: Plaintiffs who have shown that officials predictably use their discretion to discriminate have standing to challenge that discriminatory practice," Judge Costa wrote.
Attorneys for Evans and the Attala County, Mississippi, branch of the NAACP did not respond to requests for comment Friday.
Circuit Judges Jennifer Walker Elrod, Leslie H. Southwick and Gregg J. Costa sat on the panel.
The Attala County, Mississippi, branch of the NAACP and the four individual plaintiffs are represented by James W. Craig and Emily M. Washington of the Roderick & Solange MacArthur Justice Center, and Christopher Eberhart Kemmitt, Jin Hee Lee, Samuel Spital, Janai S. Nelson and Sherrilyn Ann Ifill of the NAACP Legal Defense & Educational Fund.
Doug Evans is represented by Douglas T. Miracle and Justin Lee Matheny of the Mississippi Office of the Attorney General, Krissy C. Nobile of the Mississippi Office of Capital Post-Conviction Counsel, and Scott Stewart, solicitor general for the state of Mississippi.
The case is Attala County, MS, Branch of the NAACP v. Evans, case number 20-60913, in the U.S Court of Appeals for the Fifth Circuit.
--Additional reporting by Jimmy Hoover. Editing by JoVona Taylor.
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