interpretation of all of the evidence viewed cumulatively is that doug evans began jury selection in flowers six with an unconstitutional and 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 thirty six 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 star he asked of the struck african american jurors an average of twenty nine questions he asked of the seated white jurors average of one point one questions but these numbers do not stand alone mr adams was twice found to have discriminate on the basis of race in the exercise of a pretty as prompter challenges against african american dependence in trials of the same case against the same a defendant there is no one who has a record of discrimination adjudicated discrimination like that  history of the case prior to this trial is very troubling and you've 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 i'm not suggesting that this is the way 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 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 and prevent if we look 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 if there's a juror who said that she she couldn't view the evidence objective only she could 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 would made it but she made false statement on her jury questionnaire because she'd say anything to get off the jury if you think those are those are facts and claims that would likely succeed if this troubling history had not proceeded this case 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 ra 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 question i believe that one of 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 it's possible now of course a prosecutor could take that approach with every juror if he took that aggressive approach pro choice with every sure 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 what's wrong with that and again putting aside the reasons to be suspicious if a juror says i don't i didn't work i don't work closely with the defendants psystar i don't work close to the defendant sr i'm the prosecutor has reason to suspect that's not true is there something wrong with a 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 there's something wrong with that there's nothing wrong with that if there was a reason to disbelieve this juror of the germ 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 you bring someone in to say well they work very close together and that someone says and i could produce the evidence and his but when asked to produce the evidence of that the records that where you got the witness back the next ten minutes what is your strongest strike i think this most the clearest case is that of carolyn right carolyn right a bout carolyn right he made three false statements the first statement he made was that her wages were garnished that well actually we have found in the record with the state exhibit on it a judgment that shows that her wages were garnished no though wages there is 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 while 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 the family owned store right but that's a family owned store and the sort of the store sued her well the store sued her the victim herself had not sued her no but the son were harmed later that sued her but normally wouldn't that you know again put aside the history because we can't in the end we can't do it but if you did you don't you think price a prosecutor or any attorney would be very wary of having a a juror who had been sued by one of the publics 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 percival strike but in fact he didn't do that so first of all i do want to notice that this was one of four  victims it does seem rather unlike that a person in a quadruple homicide case would be biased by a subsequence 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 who wanted their question asked the entire way whether they had any gets to the to the store 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 concern 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  o even try how she felt about that suit and whether it would affect journalist case 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 target 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 sided with respect he just inside 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 miss burnside can you go back and  you said to justice alito the record that's the record that says something about garnishment that the state courts found that was not adequate could you explain why not well that judgment  the record what is a do or the judgment it's not a four it's a form of the record with the storm in the record reflects a suit and there is 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 garn what if what if it turned out there were garnishment how would that affect your argument if it well we'll that would mean that he only made two false statements about juror right of the two false statements were that she knew our sister cora and that she knew flower sister sure read it so then that would be too but if i could go back for a moment to m mother miss burton side was helped during her divorce by mr harding so whatever she might have felt negative about the son in law the feeling she would have had about the victim herself could only have been positive and yet she cited this same reason when we look at that what we see site also say repeatedly she didn't want to judge anybody no she did not oh yes that she did not want to judge anyone she did say that but i think i think that saddam would give them a reason for for striking a juror who's going to have to judge whether someone who's accused of a serious crime is guilty or not that is a legitimate reason for striking a judge i'm the problem isn't 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 tardies it looks like he's saying is pretext and if i could also go back to the rest of your question about juror right so there were three misrepresentations with respect to juror right 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 a witness with white with defense witnesses no did he strike them when he had an opportunity to do so but isn't it true she also worked with the defendant's father she worked in the same location as the defendant's father worked in my same store she worked in the same the world's smallest wal mart that's what the what that's what the trial court described it as but but it is important to notice that when she was asked does he still work that she didn't even know if he still worked there so there's no but she still worked there she did i thought she had left no that's not there to or with respect to i believe with respect to cora flowers but what i wanted to she didn't know if you still work there going to her with pamela  n though that comparison is the one that i'm most interested in i was about to do that and so i think that it's true that a 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 election ship is that she didn't know whether we still work and the process and evans did not ask about the closeness of the relationship nor did he worry about the closeness of the relationship with someone who is a coworker and he would encounter someone in the work that city on a daily basis it is a different relationship or it could be a very different relationship we can't actually even know the closeness of either relationship unless there was in corrie but doug evans did not make that kind of an inquiry and did what he said to church and that was a purely really professional relationship he didn't ask whether she had a close relationship whether she was worried he instead presumed reassured everyone that all 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 that's probably why  the cases here for for review and i'm interested because obviously the we adopt will apply in other cases how far your argument that we need to look at the past history pertinent if if the prosecutor had had one batch in violation in his thirty year career twenty years ago is that something that should be brought out in  chief justice may i say one thing about carolyn right that i don't want to forget sure the other thing that's 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 the prosecutor was looking at a colorblind way would have been attracted to her now for an hour from 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 calmed the cases and i cannot find any can i know it's your you're fighting the hypothetical my question is thirty years bypass in violation twenty years ago is that pertinent to the consideration in the current case i'm sorry i didn't understand the question then yes it is pertinent but it's weakly probative so i think when we conduct a sensitive inquiry we look as we would the criminal case we look at how we sent a fabrication has been whether it's on a relatively similar matter where the person has the same motive so a case that occurred thirty 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 so someone who violates batson before it's a nonstarter someone who violates spots and immediately thereafter that's less probative than someone who has done so was he and 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 the general rule is a rule that you have already adopted which is that in stage three every factor that bears upon credibility is relevant so that's 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 six 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 ba then the defendant has not met his burden of proof by proving prior discrimination ok so we need discrimination in this trial in order to have a betson yes ok that's helpful thing my question was about the history i thought that swain had said that the history was relevant and facts when said his truth the only way you could prove a violation want batson did was to say no you can look even at the individual case but that's a history was relevant and to look more broadly in arlington heights this court said that history is relevant so and in miller well said that history was relevant so there isn't a new rule what are we to make of the well if there were if the court had taken account of it of the history it couldn't have come to this conclusion and i think there's many reasons in the opinion to believe that they did not they said considering the history it doesn't alter our opinion and they pasted in their prior opinion that was history blind they also said his read 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 or a history of willingness to violate the constitution and the history of willingness to make false statements 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  stated because he was dishonest before or yes when i look 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 asked so it might indeed be as the mississippi supreme court said that with respect to some african american jurors it was the gentleman to ask them more questions because more of them knew flours family but that the point still remains and this is the point that this court made in miller l 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 being interested in bias or death penalty attitudes or anything else ms johnson some time ago justice alito asked you about the prosecutor's investigation of certain potential jurors  jurors did the prosecutor separately investigate and report and all african american all of them were african american and one defense counsel said he's investigating african american jurors there's no evidence that he investigated anyone else he said nothing so he had an opportunity to say oh i've investigated every one and he did not say that and can i ask you about the disparate question then because you referred to something which struck me when as i read through all of this  this is unlike some cases you see it's a very small town where everybody knows everybody apparently or many people know many people and it's a largely segregated town where  you might think that african americans know more african americans then they would vice versa so does that account for some of the differential questioning another words just sort of looking at the environment and saying i have to push more on whether x knew why because given the circumstances of the town x might very well have known why the mississippi a supreme court said that it accounted for some of the differential questioning and i think that's correct there are more african american jurors who report relationships with defense witnesses or the defense family members but there a relationship because i have been working at the same place or living in the same neighborhood and the case is the way they were none of the relationships were working at the same place but when i when he was asked when he when they were asked in group or dear about whom they knew white jurors and responded that they knew defen witnesses and they were not questions about those witnesses so we can't really know what the nature of those relationships are if we don't ask questions to you do you have those names or is that in your briefs it is on the green but it is waller lester blake and field as well as chesty and it's strange but maybe you can in more unusual i should say not strange or unusual that there were some white jurors who had people accused crimes relatives excused of crimes and were there any questions about how that affected those white jurors 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 you're really investigating bias you would be concerned about bias against your office and he was that with the court's permission i will reserve the best of my time from about thank you counsel jake chief justice 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 six trial in this small tail a small town of approximately five thousand individuals the questioning of whether the make up or the limited number of individuals in the town was one of the reasons for followup questions is accurate at the outset let me say that the mississippi supreme court's decision in this case was commensurate with and i would return to justice course it's a question of if we disengages at this troubling history and i agree i'm not suggesting that as justice alito said however if we take that out of the case which we don't have any taints can i just last year question of 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 don't know so many other people could he have done that 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 you  said if if we take the history out of the case we can take the history of the case oh no justice given all i'm not saying that's what i'm saying exactly four to forty two intentional african americans and forty one are stricken right there is correct we have to that's relevant correct that is relevant yes you are the as this court is held in miller history is part of the consideration so you agree that it's not only the adjudicated bats n violations that are relevant but also the number of strikes such as justice cavanagh listed 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 the relatives were related or knew intimately family members of the defendant or his family members up to court in this case made the distinction that the juror or who was struck for lying on the questionnaire admitted on the stand that she lied intentionally which was not the case with your 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 completely left his mind at the time he was initially question but let's go back to that if we're looking at whether this is pretty tex mr evans was willing to give an excuse to this year and keep him despite the fact that there was direct evidence that he knew about the case he was willing to accept the white lie but not a true full lancer under oath in front of a judge doesn't that suggests critics to you and i have to tell you if that were the case i don't think one could take one juror and not push them on those questionnaires and come up to an ok trial number three there were seventeen black possible he uses only fifteen this time why because he ran out of peremptory so he only had fifty or a fourth trial sixteen black he only struck eleven that's because he only had eleven perhaps all right now we come to this trial with that background ok and i don't think it's going to take much when you have that background so now let's look at one black you're one white one potential ok let's call them one and two both are women both are in their mid forty's 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 ok so that's one difference i don't think got cuts in your favor then have they ever had anybody arrested you know no neither has and do they know people in the case h go something over thirty people same same same same now is there a connection with the flowers family well the black cure did in fact possibly work at some distance we don't know quite what with the father at wal mart and the white when knew his father mother sister cousin through her work as a bank teller and then we got the last thing which were the mississippi supreme court that was so crucial is that the black potential juror was sued for overdue credit and maybe she paid the garnishment a thirty dollars i don't know but the word cure had been a friend of the victim's daughter in high school ok there we have potential black potential white and we have the whole background looking at that you tell me what was the difference as to why he could strike if that background carolyn right the potential african american juror who was number four and pamela chesterton the potential white american juror who was number seventy what's the difference what's the difference given all those similarities juror fourteen carolyn wright was struck because she was sued by two already you know juror fourteen carolyn wright worked with the defendant's father archie at wal mart you know the distinction would be  the way you didn't add that juror number seventeen 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 wri relationship with the father was a work relationship an employee employer relationship testing was a bank teller admitted that she just saw them coming in through the bank so this was a an employee and customer relationship with them a super supreme court made a distinction in other words it was closer to the first relationship well than the record when i read that it will bear out that the first one really was a closer relation then seeing them every week or whatever is a bank to the rest will it say that i don't think it will because i think they said well how closely physically did you work with the father and there was no answer to that question that the record would bear out that the district attorney only struck those individuals that worked with members of his family and that was consistent ok so that's the reason the distinction is when i go back in the record i have to say knowing flours father mother sister cousin through the work as a bank teller is not a good reason for striking somebody but working with flowers father in some unknown distance at wal mart is and that's the crucial difference i will find though 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 so i asked if narrowed it down to that being the difference again just as bar would also say that one of the different things was that she was sued yeah which was a can a theme at least and so i also should look at that and then decide whether that really is more significant than the fact that number seventeen was friends with the victim's daughter in high school you know sometimes you're friends with your high school high school powers you don't forget so so i those are the two things i should look at is there anything else i think that's enough here oh i do too many of us i mean anybody or any mr davis ms wright is a is a perfect juror for a prosecutor right she is she strongly favors the death penalty for uncle is a prison security guard her relative is the victim of a violent crime except for race you would think that this is a juror that a prosecutor would love when she walks in the door isn't  not if she works with the defendant's family and not if she was sued by the workplace of one of the victims and that's the just distinguishing factor here so i 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 ok again counsel again we were sort of conducting this is if it were one one case and in terms of a broader rule do you recognize or do we recognize in our precedent any restriction on the prior history that can be brought up with respect a current current case no your honor and far be it for 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 ask how far would you go and how and what does it matter what what part does that history play when i get 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 there's no limitation on the history i think certainly the president says that you have to consider it i'm not aware of any language in madison and it's 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 and and along those lines justice on what otherwise might appear to be an innocent strike and when when should what rule would you lay down i know that's hard to do but we're presumably taking cases to guide future disputes not just 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 in response to that you are let me say that when we use the word history we are limiting it to this case this district attorney in his over twenty five years of experience having searched for additional cases and no cases cited by the petitioner outside of this case in regards to  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 th us i think it certainly has to be looked at i believe the trial judge is it just the specter of the two violations were there two cases that world for turn two were in which prosecutorial misconduct at least the first was overturned on prosecutorial misconduct they didn't even reach the bats and yes you are but doesn't that tell you something about this man's passion for this case i don't even need to call it anything else but doesn't that tell you how you should be looking at this case i can't speak to his passion for the case yet your honor i can speak to his pursuit of conviction in this in the sense of the six trial s which in which they were that he didn't i understand he didn't ask the attorney general to step in which he could have to prosecute the case but i understand he lobby to legislators to try to child which the venue but just play to flee is that correct that's my understanding your so he could try the case well try the case outside of montgomery county instead of giving the attorney general to try the case and i would again really raise own counting yes you are in and we are strictly prohibited from in or interjecting ourselves in cases we tried not in this case but another case and our supreme court in batson knew that 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 grace now is really the critical sentence batson and the dissent disagreed with that the critical change you can't just assume that someone's going to be favorable to someone because they share the same race and when you look at the forty one and forty two 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 the majority said was not permissible that there's a stereotype that you're just going to favor someone because they're the same race as the defendant 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 rights they were not going to be favorable again this case is spans some twenty three years now in this small community one of the inherent problem i guess i don't understand how you can say that in this case there were three adjudicated batson violations two ok two two of the flowers three and flowers two both defense counsel counsel moved in motions that were offered in the fifth trial up to and including enjoy the pinta x forty two motion number fifty seven which was a motion to bar prosecution from exercising peremptory strikes at all or at least from exercising them against nonwhites and i remember judge loper adopted his prior rulings his ruling on that motion also included caution caution to both parties that if there's any  holdout juror in the fifth trial there and didn't mr evans do that there and the attorney general take over the case and say there was no basis for that prosecution there were two  that were bound over the grand jury on the basis of perjury one pleaded guilty to that and the other was not all processed again and that was handled by the attorney general's office not my division but another but i think the attorney general now cross it because there was no basis for that prosecution i don't know if there was a not a basis i just know that it was not all processed man who ask you about say in this case because of the unusual and really disturbing history of this case just could not have been tried this sixth time by the same prosecutor that the that you just cannot and light of the history you just can't untangle what happened before from the particular strikes in this case but again your honor you know hindsight is twenty twentieth's i was not involved in any consideration on that had i been it might have been a suggestion of mine that that be the case but that wasn't in however the record in this case by no means supports the conclusion that the mississippi supreme court's decision ran afoul of bats in all its progeny and if i may i'd like to return to what i was saying about the trial judges being aware of the history specifically judge loper said at the transcript of page three fourteen i know what flowers three said he then caution the state i'm going to look very 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 way what these questions were targeted to do let's 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 couldn't 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 wouldn't 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 white one black says i have reservations about the death penalty and he says to the white one but you can follow the law and he says to the black one well i don't know i guess you can't follow the law respectfully your honor that's not the case is i read the record of the each juror that indicated they were against the death penalty we 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 fancy jones who on her during 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 lie on her jury questionnaire so the questions the district attorney asked were to follow up on what was on the jury questionnaire with regard to their statements there  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 a way it made the parties aware 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  with the only tomorrow recollection justice ginsburg is pamela just seen 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 we don't know what the relationship of the others were because they were in and they said they had a relationship steele regarding the ones that said they knew these witnesses in the case there are yes and the mississippi supreme court noted that that there were and again this is part and parcel of the issue with this unique case is that you know five thousand people in the 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 in the part of batson was about confidence of the community in the fairness of the criminal justice system right discriminations yet another twenty one years of that until madsen and then bats and said we're going to be the tools to eradicate that so that becomes not just for the fairness to the defendant and to the jury but 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 i have confidence in this record just as kavanagh 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 a nod towards what actually transpired it supports the mississippi supreme court's decision in this case that i have confidence in thank you in how this case was prosecuted based on this record yes your honor i do you know one of the first things i did when i found this case was situated do some research because at least my former state prosecutor's office would have substituted attorneys long before the fisk six trial  regrettably i don't was unable 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 and again i would agree completely justice sotomayor that we have an unusual circumstance an unusual case with these six trials having been the first one but so did the prosecutor except that one correct after that every black your that was available on the panel was struck yes he struck one he seated one african american sure and at the very end struck one white char when all of the evidence in this case is considered just as in foster vs chatman the conclusion that race was a substantial part of evidence motivation is inescapable and the mississippi supreme court's conclusion to the contrary is clearly erroneous thank you counsel the case is submitted