In Mississippi early in the summer of 2010, emotionally spent jurors, some of them in tears, recommended that Curtis Giovanni Flowers be put to death for a quadruple murder. The judge agreed with the recommendation, sending Flowers to death row at the Mississippi State Penitentiary in Parchman. The trial had lasted two weeks, and from beginning to end the Montgomery County Courthouse was filled with an unnerving sense of déjà vu.
That’s because the 41-year-old Flowers has now been sentenced to death four times for the same crime. The first three convictions were thrown out on appeal by the Mississippi Supreme Court. The fourth, handed down June 18, 2010, is currently on appeal at the state’s highest court. Two other trials ended with hung juries. All told, Flowers has stood trial six times—a record in the history of American capital murder cases. He has become the judicial system’s answer to Groundhog Day.
Prior to Flowers, the longest running capital murder case was that of Curtis Kyles, whom New Orleans prosecutors tried five times for a 1984 murder. Kyles’ second jury sentenced him to death, but the U.S. Supreme Court reversed that conviction because prosecutors withheld evidence from the defense. After four mistrials due to hung juries, the charges against Kyles were dismissed in 1998, and he was released from prison, having spent 14 years behind bars.
“There is something shocking about the state repeatedly trying a case until it gets a jury to follow its will,” says Richard Dieter, executive director of the Death Penalty Information Center. Cases like these, he argues, are why the Fifth Amendment to the U.S. Constitution says no person should “be subject for the same offense to be twice put in jeopardy of life or limb.”
“The principle behind it is a restriction on abuse of power by the state by repeatedly putting someone through the ordeal of indictment and a trial,” Dieter says. “This would seem to be just the kind of misuse of power that the amendment is aimed at.”
Flowers’ saga stands at the center of overlapping American judicial dysfunctions. The bulk of the case against him comes from the testimony of eyewitnesses and jailhouse snitches, two of the most historically unreliable sources of convictions in the United States.
Prosecutorial misconduct led to the reversal of three convictions. Not only has that misbehavior gone unpunished, the same prosecutor has been prosecuting the same defendant with the same evidence for 15 years now. And the process throughout has been laced with the toxin that still poisons too much of the Mississippi justice: racism.
Four Murders, One Suspect
On the morning of July 16, 1996, 76-year-old Sam Jones Jr. was walking on a sidewalk in Winona, Mississippi, toward the corner of Front and Carrollton Streets, where he held a part-time position at the Tardy Furniture Company. It was a Tuesday. Jones’ boss, Bertha Tardy, had called him that morning, reminding him to come help two new employees load a truck and make a delivery. At roughly 9:30 a.m., he pushed the store’s front door open.
The first victim he saw was Derrick “Bobo” Stewart, one of the new employees. The 16-year-old high school student had been shot once in the back of the head. When Jones found him, Stewart was lying on the floor, struggling to breathe as his blood pooled up around him. “The blood was running over his eyes,” Jones would later say. “And when I—every time his heart beat, blood covered his eyes over. And when it would clear off, well, his eyes were looking at me. And that’s what hurt so.”
Stewart died a week later. Testifying about the dying teenager more than 10 years afterward, Jones, a slight, elderly black man with a sad droop in his face, froze a crowded courtroom when he said simply, “I don’t want to talk about that no more.”
Jones next noticed Carmen Rigby lying on the floor. Rigby, 45, had worked at the store for two decades. She had been shot once in the back of the head. Not far away, Robert Golden was sitting on the floor, his back pressed against a counter. Golden was a 42-year-old black man working the first day of a second job he’d taken to support his family. He had been shot twice in the head. Jones then spotted Tardy, 59. She too had been shot once in the head. Stewart “was the only one showed life,” Jones would later say. “The rest of them were still. The rest of the three were still.”
At that point, Jones—who had worked at the furniture store since the spring of 1942—reached for the telephone but stopped himself. “I didn’t touch it,” he testified. “I said, no, I ain’t calling, I ain’t touching nothing in here. I headed for the door.” He asked a woman two stores down to dial 911. He then went back to Tardy Furniture Company and waited. He would later testify that after entering the store a second time with the chief of police, he noticed something he hadn’t the first time: bloody shoeprints.
Bill Thornburg, a sheriff’s deputy, arrived a little after Winona’s chief of police and medical personnel. A small white man who takes unhurried steps in cowboy boots, he would be elected sheriff of Montgomery County five years later. After arriving at the scene that morning, Thornburg found several bullet casings on the furniture store’s floor. He kneeled beside one and, using a pen from his shirt pocket, picked it up and read its back end. It was a .380-caliber shell.
While still at the scene, Thornburg received a call about a gun that had been stolen out of a car parked at Angelica, a textile factory about a mile from downtown. Thornburg went to the now-defunct factory and talked with Doyle Simpson, the car’s owner. Simpson, a janitor at the factory, would later testify that he had his .380 semi-automatic pistol cleaned the day before, then locked it in his glove compartment. He drove to work the next day, arriving around 6:30 a.m. About four hours later, he left to get lunch for co-workers. As he was closing the driver’s side door, he said, the glove compartment dropped open. “That’s when I knew somebody had been in my car,” he testified. “It had been locked. It had been pried open.”
Thornburg would later retrieve bullets fired from the gun from a stump behind Simpson’s home. Ballistic tests conducted on those bullets, when compared to spent rounds taken from inside Tardy Furniture Company, suggested Simpson’s .380 was used in the shootings. The murder weapon has never been found.
Back downtown, crime scene investigators were photographing three partial shoeprints made in Stewart’s blood. They eventually determined that the prints had come from a size 10½ Grant Hill Fila sneaker. Roughly $300 was missing from the cash register. On the desk in Bertha Tardy’s office was a check for $89.58 made payable to Curtis Flowers.
About 1:30 p.m., investigators with the Mississippi Highway Patrol went to the residence Flowers shared with his girlfriend on McNutt Drive and asked him to come to the police station. Flowers, then 26, was a Winona native with no criminal record who was known, if at all, for his high school basketball career and for singing alongside his father in a local gospel group. He told investigators he had worked at the store from June 29 through July 3, when he left at noon and never returned. On his last day, while he was moving six golf cart batteries on the back of a truck, three fell off, hit the ground, and were ruined. Flowers said Bertha Tardy told him he would be responsible for the price of the batteries. She then loaned him $30 for the July 4 holiday, and he left, never returning to work. He insists that he wasn’t fired. The check on Tardy’s desk was, according to a ledger, for the last 18 hours of work Flowers put in, at $5-an-hour.
Asked where he had been that morning, Flowers said he had gotten up around 6:30 a.m., when his girlfriend left for work. He was babysitting her children, and he fed them breakfast around 9. He walked to his sister’s house, then back home. About 10:30, he walked to Jeff’s Stop-N-Go on U.S. 51. It was at the service station, he said, that his father, a clerk, told him about the murders.
Investigators checked the shoes Flowers was wearing—white and blue Nikes, size 10½—for blood. They found none. A gunshot residue test administered on his right hand turned up one particle of gunpowder.
Flowers wasn’t arrested that day. (He would later testify that he went fishing that evening.) But investigators felt they had their man. They eventually searched his home, finding an empty shoebox for size 10½ Grant Hill Fila shoes in a chest of drawers and $235 in the headboard of the bed he shared with his girlfriend.
Authorities began a search for witnesses. Within weeks, a $30,000 reward for information was stapled on light poles and written up in the local weekly newspaper. Soon prosecutors had people claiming to have seen Flowers walking to and running from downtown Winona on the day of the murders. In early 1997, he was arrested and brought back to Mississippi from Texas, where he was working at a grocery store.
“The reward offer really poisoned the case by giving rise to fabricated eyewitness testimony,” claimed attorney Chokwe Lumumba, who defended Flowers during the second trial, in a 2010 interview with CNN. “I don’t think the witnesses recognized the consequences of what they were doing, that they were going to help put this man to death.”
Confused Witnesses
In cases like this, says Cynthia Orr, a past president of the National Association of Criminal Defense Lawyers, “the prosecutor and law enforcement are under a great deal of pressure to solve the crime quickly and imprison the suspect. These pressures often lead to overly narrow investigations, which can lead to wrongful arrests, convictions, and sometimes wrongful executions.”
Montgomery County District Attorney Doug Evans, who has been trying the case for 15 years, scoffs at claims that law enforcement pegged Flowers within hours of the murders. Flowers was an immediate suspect, he says, but “every possible theory was discussed.” Evans, a former police detective, says the six-month gap between the murders and the arrest is proof of the prosecution’s care. “I don’t think I’ve ever seen an investigation as thorough and complete as this one.”
Investigators went door to door, interviewing potential witnesses, more or less canvassing all of Winona, Evans says.
Here is what they turned up:
•Patricia Hallmon Sullivan, a tax preparer who lived next door to Flowers, claims to have seen him about 5 a.m. on July 16, smoking on his porch, wearing shorts and a white T-shirt. Later, she said, she saw him walking toward his home around 7:30 a.m., wearing black nylon pants, a white shirt, and Grant Hill Fila sneakers. (Early last year, a federal judge sentenced Sullivan to three years in prison for aiding and abetting in the filing of false tax returns for customers.)
•James Edward Kennedy, who lived roughly 50 yards from the Angelica factory, said Flowers walked by his house about 7:15 in the morning. Kennedy, who told police about the sighting two months after the fact, claims Flowers was headed toward Angelica wearing a dark sweater and white pants.
•Catherine Snow, an employee of the plant at the time, testified to seeing Flowers leaning against Doyle Simpson’s car around 7:15. But on the day of the murders, Snow told authorities she didn’t know the identity of the man, who she said was wearing a white shirt and black pants. It wasn’t until August that she specifically claimed it was Flowers, whom she had known most of her life.
•Edward Lee McChristianson told police in mid-August that he saw Flowers walking “from the general direction of Angelica” between 7:30 and 8 a.m.
•Mary Jeanette Fleming testified that while walking home from a car shop downtown on the morning of the murders, she passed Flowers, who said, “Hey, good looking.” According to Fleming, he was wearing a gray, light jacket, a white shirt, and brown pants.
•Beneva Henry, an elderly woman, claims Flowers passed her house between 9 and 9:30 a.m. heading in the direction of downtown. She said he was wearing white shorts and a short-sleeve shirt.
•The late Charles “Porky” Collins, whose testimony was read aloud in the last three trials, claimed that a few minutes before 10 a.m., while driving by the Tardy Furniture Company, he got “a brief glimpse” of two men standing across the street from the store arguing. When shown a lineup on the day of the murders, he said one of them looked like Flowers. (Collins also stated during one of the trials, “I take a lot of medicine, sir. And I have trouble remembering a lot of things.”
•Clemmie Fleming, pregnant at the time of the murders, testified to having gone to the furniture store about 10 a.m. to pay a bill. After arriving at the store, she decided not to go in because she felt bad. She testified that while driving away, she saw Flowers running from the area “like somebody was after him.” Her claims were not uncovered by authorities until April 1997. But her sister, Mary Ella Fleming, testified that Clemmie came to her house about 7:30 that morning and didn’t leave until 2 p.m. Another relative also testified that Clemmie admitted she had lied.
Without the testimony of these eight eyewitnesses, the case against Flowers is thin. And if we take them at their word, we are forced to conclude Flowers changed clothes several times the morning of the murders. “I don’t believe anyone can honestly believe a defendant would change clothes that many times,” says Ray Charles Carter of the Mississippi Office of Capital Defense, who has served as Flowers’ attorney since the third trial. “It takes too much effort or work to achieve.”
Since the early 20th century, eyewitness misidentification has been singled out as the leading cause of wrongful convictions. More than 75 percent of the 250-plus wrongful convictions the Innocence Project of New York has helped uncover since 1992 relied at least partly on mistaken eyewitness testimony.
But Evans, the D.A., calls the varying descriptions of Flowers’ clothing “minor discrepancies.” He notes that all the witnesses except Collins had known Flowers their entire lives. While they might struggle to remember what he was wearing, Evans is convinced they saw him.
The evidence against Flowers—who, as Evans points out, has now been convicted by four juries—is not limited to the eyewitness testimony. There is the particle of gunpowder on his right hand, which Flowers claims could have come from him shooting fireworks the day before the murders. While such a finding proves nothing by itself, since gunpowder particles can come from any number of environments, “it is a good investigative tool,” Evans says. There is also the shoebox for size 10½ Grant Hill Filas found in Flowers’ home. His girlfriend testified that she bought the shoes, which have never been recovered, for her son. Finally, there is the $235 found in the headboard, which the girlfriend said belonged to her. Prosecutors argued that Flowers, angry about his last $80-paycheck supposedly being held back to cover the cost of the ruined golf cart batteries, stole a pistol, walked downtown to Tardy Furniture, shot and killed four people, pocketed the money from the cash register and ran home. But without the witnesses, Curtis Flowers is on death row because of circumstantial evidence.
Alan Bean, a Texas criminal justice reform activist who has studied the Flowers prosecution extensively, argues that “it is the sheer ambiguity of the evidence that makes these cases so dangerous.…You simply cannot send a man to death row on a case that’s this ambiguous.”
Perhaps the ambiguity of the evidence explains why Evans indicted Flowers four separate times, instead of just once for all four murders. When asked why he opted for that strategy, he responds, “We had four different murders.” But by taking that route, the prosecutor ensured himself multiple cracks at a conviction and, at the same time, laid the groundwork for Flowers’ successful appeals.
Two Overturned Convictions
The first trial, in 1997, was for the death of Bertha Tardy, the furniture store owner. It was held in Lee County, Mississippi, after Flowers’ attorneys requested a change of venue from Montgomery County, where the murders were committed. Flowers was convicted and sentenced to death. Just before the sentencing phase of the trial, Flowers, who Evans says has routinely refused to plead guilty in exchange for a life sentence was asked in the judge’s chambers if he wanted to take the stand to convince the jury that his life should be spared. He declined to do so. His attorney told the judge, “We did discuss this with Mr. Flowers…and he felt like he couldn’t get on and show remorse for this because there is nothing to be remorseful over because he maintains his innocence.”
That trial featured the testimony of two jailhouse informants—Frederick Veal and Maurice Hawkins—who could have walked out of a Molière comedy. Veal testified that Flowers, during a 4 a.m. game of jail-cell dominoes, told him he committed the murders and took $2,000 out of the store for a drug binge. Later Hawkins took the stand and claimed Flowers, while playing solitaire late at night, said he regretted killing the four people because one of them, Robert Golden, was his cousin. There is no evidence that $2,000 was taken from the store, and according to testimony Golden was not Flowers’ cousin. Veal and Hawkins have not testified against Flowers since.
The guilt phase of the first trial was the only time Flowers took the stand in his own defense. He claimed to have gotten out of bed between 9 and 9:15 a.m. the day of the murders. On cross-examination, Evans asked Flowers why he initially told investigators he got out of bed around 6. Flowers responded: “When I got up [on] the 16th, I didn’t just look at the clock and say, OK, I am getting up at 9:30 or I am getting up at 10.”
An agitated Evans, holding up an audiotape in his hand, responded, “Well, all of this is on one taped statement that I’m holding right here.”
Flowers: “I know, and like I told you, I roughly estimated when he asked me. I wasn’t thinking right offhand when he asked me that.”
Evans: “So you changed your time at least three times in this one taped statement about what time you went to your sister’s house.”
One problem here was that, contrary to Evans’ claim, the supposed taped interview he held up was never entered into evidence. On appeal, the state Supreme Court found “an abuse of the prosecutor’s right to argue about the supposed inconsistent statement made while holding a tape to the jury, not admitted into evidence.” In reversing the conviction, the court also noted that on numerous occasions during the trial the prosecution referred to the three other victims, even though Flowers was not being tried for killing them.
Flowers’ second trial, for the murder of Derrick Stewart, was held two years later in Harrison County, Mississippi. This time, Odell Hallmon, a 300-pound convicted felon, took the stand for the defense to discredit the testimony of his sister, who claimed to have seen Flowers on the morning of the murders wearing Grant Hill Fila tennis shoes. Hallmon said he talked Patricia Hallmon Sullivan into lying so she could claim the reward money. In subsequent trials, however, Hallmon reversed his testimony, claiming it was Flowers who induced him to “lie against my sister” in exchange for cigarettes. (At the fifth trial, Hallmon, attempting to explain his wavering testimony, announced in court that he had contracted HIV and wanted to “get right with God.”
Evans claims to have other jailhouse informants who are willing to testify against Flowers. He chose to use Hallmon, he said, because he reported that Flowers had used him to deceive jurors. “Things like that are important for the jury to know about,” he says.
Jailhouse “snitches” are notoriously unreliable. According to a 2005 study by researchers at the Northwestern University School of Law of 111 death row exonerations since the mid-1970s, 51 of the condemned men “were sentenced to death based in whole or part on the testimony of witnesses with incentives to lie—in the vernacular, ‘snitches,’ ” making jailhouse informants “the leading cause of wrongful convictions in U.S. capital cases.”
But Flowers was again convicted and sentenced to death. On appeal, the state Supreme Court again overturned the verdict for prosecutorial misconduct. “This court is absolutely compelled to find that, as in [the first trial], the state employed a tactic or trial strategy of trying Flowers for all four murders,” the ruling said. “Evidence of the other victims was admitted through photographs, diagrams and other testimony.…By using this tactic or trial strategy, the state improperly prejudiced the jury and denied Flowers his fundamental right to a fair trial.”
The Racial Divide
The third trial, in 2004, was the first to take place in Montgomery County, where the crimes occurred. This time Evans, probably in an effort to avoid another appealable problem with admissible evidence, tried Flowers for all four murders. Once again, Flowers was convicted and sentenced to death. And once again, the state Supreme Court overturned the conviction.
This time, the court found that Evans had “engaged in racially discriminatory practices during the jury selection process” by using all of his peremptory strikes against blacks, a move that helped produce a jury of 11 whites and one black in a community that is 45 percent African American. In the 1986 case Batson v. Kentucky, the U.S. Supreme Court had ruled that lawyers must provide nonracial reasons for striking African Americans from a jury pool. “The lone African-American who ultimately sat on Flowers’ jury,” the Mississippi court noted, “was seated after the state ran out of peremptory challenges.”
In 2007 Flowers was tried for a fourth time, again in Montgomery County, again for all four murders. This time, Evans sought a sentence of life without parole. As a reporter covering the trial for Mississippi’s Greenwood Commonwealth, I asked Evans in a courthouse corridor why he wasn’t seeking the death penalty this time. “All I can tell you is after considering everything involved, I decided that this was the right call to make at this point in the case,” he answered.
It seems likely, however, that the Mississippi Supreme Court’s decision to overturn the previous conviction based on a Batson violation played a part in Evans’ decision. Studies show African Americans are less likely than whites to favor a death sentence, and Evans needed more blacks on the jury. (The first three trials combined were heard by 34 whites and two blacks, sitting in judgment over a black man accused of killing three whites and one African American.)
There were seven whites and five blacks on the jury for Flowers’ fourth trial. The whites were all in favor of conviction, but the blacks wanted an acquittal. The judge declared a mistrial.
Story Here
You know, I started bolding but... you really need to read the whole thing. There is something horribly, horribly, horribly wrong about this whole situation. Also, I considerably shortened the story. THe FULL thing is worth a read.
