How Many Times Can You Be Retried?
Every day at trial is a story of some kind. And it's a rare week where something off-the-wall or unexpected does not occur. The jury may occasionally be bored to sleep, but for the attorneys trying the case it's an exciting time where it feels as though anything could happen.
But sometimes things go too far off the rails, and it becomes clear that the result of the trial is simply not going to be legally supportable. This can happen if an attorney says the wrong thing or if a judge delivers the jury the wrong instructions on the law. On the criminal side it can also occur if a jury deadlocks and cannot decide on a verdict – a so-called “hung jury.” In principle this could happen in a civil case as well but it's a vanishingly uncommon occurrence – civil juries are much more likely to compromise whether they're permitted to or not.
But whatever the reason, if a trial goes off the rails the remedy is generally a do-over or retrial. The parties start again from scratch. They pick another jury and do everything again from opening statements to witness examinations to closing argument. The hope is that having identified the initial mistakes the second time goes off without a hitch.
But what if it does not? How many times can you retry a case?
The record for most complete retrials of the same case cannot be definitively established. Data collection of these kinds of issues across fifty states and the federal system just isn't there. But it is commonly believed to be held by the Curtis Flowers case from Mississippi State court. Flowers was tried six times for the same quadruple homicide over the course of 23 years. The only other comparable case, also from Mississippi, was that of Marcus Roberson — brought to trial eight times for the same murder over the course of five years. [1] But many of those were not full trials and were abandoned right from the start. In contrast the Curtis Flowers case was taken all the way to jury deliberations six times ending only after a 2019 decision of the United States Supreme Court. It was, as Justice Alito put it, “a highly unusual case” and “likely one-of-a-kind.” [2]
The case originated in July of 1996 in Winona Mississippi. An employee arriving to work at the Tardy Furniture store found the store owner and three employees had been brutally shot, each of them in the head. Some were shot multiple times. None survived. [3]
The police quickly focused their attention on Curtis Flowers, a former employee who had recently been fired for damaging company equipment and not showing up to work. There was no conclusive proof of his involvement, but police identified some evidence suggesting guilt – a bloody shoe print the same size as his shoes, money hidden in his house that might have come from the store, and witnesses who saw the defendant in the rough vicinity of the crime. [4]
Flowers was tried by the local prosecutor Doug Evans. Since Flowers was Black, and most of the victims were white, some prosecutors might have been concerned by any appearance of racial bias on the jury. Not Evans. He struck every Black juror from the pool and Flowers was convicted by an all-white jury. [5] The Mississippi Supreme Court reversed the conviction based upon other misconduct by the prosecutor – largely distortions of evidence and reference to matters that had been excluded – but did not reach the issue of whether Evans had violated Batson by striking the Black jurors. [6]
Despite the finding of misconduct, Evans tried the case again. Again, Evans struck every Black juror. [7] The trial judge then overruled one of the strikes (but not the other four) finding the prosecutor was discriminating based on race. The 11 white and one Black jury convicted again. And again, the Mississippi Supreme Court threw out the conviction for prosecutorial misconduct without reaching the Batson issue. [8]
Having been found to have engaged in misconduct twice, you might think that Evans would assign the case to another prosecutor. And even if he were too stubborn to do so you might think that there would be a process to require that it happen anyway. Defense counsel asked the trial judge to do so before the third trial, but this was swiftly denied. [9] Evans once again tried the case and once again used every available strike to exclude a Black person from the jury, resulting in a jury of 11 white jurors and one Black. It convicted, and once again the Mississippi Supreme Court reversed, calling the matter “as strong a prima fascie case of racial discrimination as we have ever seen.” [10]
This would be a pretty embarrassing thing to have a court write about you in most places. But things operate somewhat differently in Mississippi. Evans once again tried the case and once again used all of his strikes on Black jurors. [11] But the panel this time was more racially diverse and despite using eleven peremptory challenges the state was still stuck with a final jury that was seven white jurors and five Black. The jury ultimately hung, splitting on racial lines. [12]
Evans decided to try again. There is no record of the strikes used in the fifth trial, but the jury was nine white jurors and three Black. It deadlocked again. [13] The trial judge was so angry about the situation that he ordered the lone holdout (who was Black) to be arrested and demanded that the juror post a $20,000 bond claiming that the juror had somehow perjured himself. [14] Evans had the juror indicted but was removed from the perjury case as conflicted. After torturing the holdout juror for eight months, the Mississippi Attorney General ultimately dropped all charges against him. [15]
Not so for Curtis Flowers of course who was tried for a sixth time. Evans used five of his six strikes on Black jurors resulting in another eleven to one jury. [16] That jury convicted. This time the Mississippi Supreme Court, in a five to four decision, upheld the verdict finding that the prosecutor’s stated reasons for the strikes were good enough.
The U.S. Supreme Court granted certiorari and was fairly horrified by the situation. It was not a good sign for the state of Mississippi when the first question it received in oral argument was from Justice Alito asking why on earth the same prosecutor was allowed to try the case six times. [17] For the second question, Justice Kavanaugh asked the state to confirm that, across the six trials, Misssissippi had struck 41 out of 42 possible Black jurors. [18] Writing for the Court Justice Kavanaugh held that:
Stretching across Flowers’ first four trials, the State employed its peremptory strikes to remove as many black prospective jurors as possible. The State appeared to proceed as if Batson had never been decided. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury. [19]
Even Justice Alito, who has previously treated Batson claims with great skepticism, voted to overturn the conviction. In a separate concurrence he chided the state for allowing Evans to continue to press the case for so many years despite the many prior findings of discrimination and misconduct. [20] He made clear that for anything less than the horrific facts in front of him he would continue to take prosecutors at their word when considering Batson challenges.
Justices Thomas and Gorsuch dissented. [21] Thomas argued that Batson should have been overruled entirely and that because Flowers had not raised Batson challenges at his fourth and fifth trials (which deadlocked), the Court should assume that they were conducted fairly. He also employed some odd arithmetic to claim that every strike that had not been previously held to violate Batson should be assessed to be a “race neutral strike” that the Court should consider to bolster Mississippi’s credibility. Gorsuch joined Thomas's conclusion though he did not sign on to the “overturn Batson and let people discriminate in voir dire” portion.
Evans threatened to try Flowers for a seventh time even after the decision. But he ultimately recused himself from the case and all charges were dropped. Flowers was finally released after spending 23 years in prison. A judge in Mississippi ordered the state to pay Flowers $500,000 for the wrongful imprisonment to be parceled out in $50,000 a year increments for 10 years period. Flowers later attempted to sue Evans for wrongful prosecution, but the case was swiftly dismissed.
[1] See https://www.apmreports.org/story/2018/05/01/how-can-someone-be-tried-six-times-for-the-same-crime
[2] Flowers v. Mississippi, 588 U.S. 284, 316 (2019) (Alito, J., concurring).
[3] Id. at 318 (Thomas, J. dissenting).
[4] Id.
[5] Id. at 306.
[6] Id.
[7] Id.
[8] Id.
[9] See https://www.apmreports.org/story/2018/05/01/how-can-someone-be-tried-six-times-for-the-same-crime
[10] Flowers v. State, 947 So.2d 910, 935 (2007).
[11] See https://www.apmreports.org/story/2018/05/01/how-can-someone-be-tried-six-times-for-the-same-crime
[12] See BRIEF OF AMICUS CURIAE, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. at p.30 (Flowers v. Mississippi).
[13] Id.
[14] See https://www.apmreports.org/episode/2018/06/05/in-the-dark-s2e7
[15] Id.
[16] Flowers v. Mississippi, 588 U.S. 284, 291 (2019).
[17] https://www.oyez.org/cases/2018/17-9572
[18] Id.
[19] Flowers v. Mississippi, 588 U.S. 284, 306 (2019).
[20] Flowers v. Mississippi, 588 U.S. 284, 316 (2019) (Alito, J., concurring).
[21] Id. at 318 (Thomas, J. dissenting).
