Leveling Power in the Courtroom – Some Reflections

Curtis Flowers and attorney Robert McDuff - Photo Al White

In the summer of 2019, the Mississippi Center for Justice took on a capital murder case, something it had not done before in its history. Rob McDuff, who directs our Impact Litigation Project and who had co-founded MCJ in 2003, was asked to serve as lead counsel going forward for Curtis Flowers, an African American resident of Winona, Mississippi. In July 1996, four people were shot dead in broad daylight in a Winona furniture store. After an investigation, Flowers was charged in January 1997. He spent the next 23 years in prison while he endured six separate trials for capital murder, something unprecedented in the annals of American criminal justice. Two of the trials ended in mistrials because of hung juries. The other four ended in convictions and death sentences, all of which were reversed on appeal for prosecutorial misconduct. In June 2019, his latest conviction was reversed by the U. S. Supreme Court due to the District Attorney’s persistent and pervasive racial bias in jury selection over the course of the trials. Flowers had consistently declared himself innocent of the charges and conducted himself as a model prisoner for 23 years.

As President, I was asked to approve MCJ’s participation in this case. Although our organization had not previously defended someone charged with a capital crime, McDuff had significant experience in criminal defense and capital defense cases. And although our Impact Litigation project generally focused on civil rights and voting rights issues, I agreed because this case crystallized a foundational promise of American law: that our jury system deliver equal justice to all.

As soon as the case formally returned to the trial court in Montgomery County, Mississippi in September, we filed a motion to permit Flowers to be released on bail pending further proceedings. But despite McDuff’s persistent efforts to schedule a bail hearing, none was held until December 16. I drove up from Biloxi for the hearing. The setting appeared unremarkable: a familiar glass and brick courthouse in Winona, Mississippi on a windy December morning. But it was unlike any hearing I had attended in 36 years as a lawyer.

The jury box was filled with television and still cameras and reporters. I had never been to a Mississippi trial court hearing where the judge permitted the media this kind of access. The press included members of a reporting team that spent years investigating the case against Flowers for American Public Media’s award-winning podcast called “In the Dark.” These were persistent and fearless members of a new generation of journalism. Their account of the hearing is here, featuring excerpts of the argument and ruling. Their work is extraordinary.

I sat in the courtroom audience directly behind members of Flowers’s family. McDuff walked in holding a pair of worn leather briefcases full of papers. I met Henderson Hill, McDuff’s co-counsel and former law school classmate. Adam Hopper, an assistant District Attorney came in holding an embossed leather folder and a pen. Doug Evans, the District Attorney who had brought this case and pursued it over six trials, was absent. He filed no written response to the motion.

Circuit Judge Joseph Loper, who had presided over the last two trials, entered the courtroom and called the case. McDuff approached the podium with a set of papers and began. He laid out two paths for the judge to follow. The first was Miss. Code Ann. § 99-5-35, which provides that “[a]ny person having been twice tried on an indictment charging a capital offense, wherein each trial has resulted in a failure of the jury to agree upon his guilt or innocence, shall be entitled to bail.” Flowers had two mistrials where the jury could not agree. However, Flowers also had four other trials where the jury convicted him. McDuff argued that these four convictions did not count because they were reversed on appeal for prosecutorial misconduct, which meant they were unfair trials. Of the two remaining trials that were not formally declared to be unfair, “each trial has resulted in a failure of the jury to agree” so that Flowers was “entitled to bail” under the statute.

The second path was Miss. Const. Article 3 § 29, which provides that all persons shall before conviction be bailable “except for capital offenses when the proof is evident or presumption great.” McDuff’s task here was to persuade the judge that the proof against Flowers was not evident nor the presumption great. McDuff cited caselaw that held this standard was met and bail would be required if “a reasonable doubt could be entertained.” To assess this question, McDuff raked over the details of the case, referencing a thick bound volume of twenty-eight tabbed exhibits.

McDuff catalogued three important prosecution witnesses who recanted or drastically changed their testimony, leading with an audio recording of Odell Hallmon, the prosecution’s star witness. Judge Loper heard Hallmon retract his claim that Flowers confessed to the crimes. Hallmon admitted it was all “a bunch of lies, a bunch of fantasies.” For the American Public Media reporters who watched from the jury box as the recording they obtained was played in court, the situation had moved from true crime podcasting to actually influencing the administration of justice in a small, bitterly divided, and deeply traumatized Mississippi town.

McDuff also described three suspects who were much more likely perpetrators than Curtis Flowers, one of whom was discovered by the podcast reporters and all of whom were largely ignored by the District Attorney and his investigators.

Line by line, page by page, tab by tab over the next forty minutes, McDuff undercut each part of the case against Flowers and cemented Flowers’s peaceful and cooperative life history. McDuff held up the thick exhibit binder to remind the judge of how much proof stood behind this motion, and Judge Loper assured McDuff that he had reviewed it all. Here is where the audience on both sides of this tragedy reasonably could have wondered “Where is the District Attorney’s stack of tabbed and bound paper?” When McDuff finished, the assistant district attorney, Mr. Hopper, went to the podium with his embossed leather folder and spoke for less than eight minutes, and faced tough questioning from the judge.

As for me, I recalled 35 years ago as a law clerk at the Mississippi Supreme Court when I was handed a tall stack of transcripts and records for a capital murder case. These were always the largest cases and the toughest assignments. In the case of Curtis Flowers, six trials would have generated many more volumes of testimony and evidence and motions, filling several bookshelves.

While no capital murder case against an indigent defendant ever can be described as “typical,” there are some built-in disadvantages. Quite often, an indigent defendant will be represented by appointed counsel whose personal capacity will be strained by his or her workload and the complexity of capital criminal trials. Similarly, the appointed counsel more frequently than not has far fewer investigative resources or forensic supports than the prosecutor. And the public sentiment prior to trial more often than not quickly hardens against a capital defendant.

On this day, Curtis Flowers sat between two highly experienced capital defense attorneys who could draw on the work of their predecessors and the team of lawyers who pursued his most recent appeals.

On this day, Flowers watched as the Judge heard the State’s star witness admit on audiotape that his testimony that Flowers had confessed to the crime was a “bunch of lies.” This key evidence and much more was uncovered by tenacious investigative journalists decades after the initial investigation. These recent disclosures of evidence of Flowers’s innocence have exposed a much wider audience to the injustice in Flowers’s case and shifted broader public opinion over to the long-held view in the African-American community in Montgomery County that Flowers was innocent. This shift was noticeable in the courtroom.

The judge ruled in favor of Mr. Flowers on both grounds. He held that the plain terms of the statute required bail since the case against Flowers had twice ended in a hung jury. He noted that the recantation of Odell Hallmon’s testimony converted this into a circumstantial evidence case which sharply raises the bar for the prosecution if there is a seventh trial. Given the state of the evidence, the judge concluded that the proof was not evident and the presumption not great. The judge also instructed Mr. Hopper to tell the District Attorney that the court will not tolerate further failures to respond to motions or to move the case forward. In 36 years, I have never heard a state court judge admonish a representative of the State of Mississippi that his conduct, if not changed, would “reap the whirlwind.” That was a profound leveling of power.

In that instant I thought, “Look what it takes to balance the playing field in this courtroom.” A United States Supreme Court ruling, countless hours of a meticulously documented podcast investigation exposing the world to the evidence of Curtis Flowers’ innocence, and a team of some of the best lawyers available to any client in the nation. And in courtrooms all across Mississippi, and indeed this nation, we too often see a profound imbalance of justice between ordinary people and their powerful opponents. Our commitment to equal justice for all requires that everyone have access to the legal representation that their case deserves, whether what is at stake is their job, their home, custody of their children, their liberty, or their lives.

Rob McDuff was able to take this case and invest the necessary time with no cost to the Flowers family because people see value in what MCJ does. Our ability to respond to this and future challenges to achieve justice in this state depends upon your continued support.

Reilly Morse