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High court hears arguments in Flowers’ appeal
by Amanda Sexton Ferguson, Editor and Publisher
Jul 24, 2014 | 301 views | 0 0 comments | 50 50 recommendations | email to a friend | print
JACKSON – Alleged misstatements by the prosecution during closing statements in the murder trial of Curtis Flowers were the heart of the defense’s oral arguments before the Mississippi Supreme Court Monday.

Flowers was convicted and sentenced to death in 2010 for murdering four people at Tardy Furniture in Winona in July 1996. Store owner Bertha Tardy, 59, and employees Carmen Rigby, 45, Robert Golden, 42, and Derrick “BoBo” Stewart, 16, were all killed by gunshot wounds to the head.

Flowers is currently being held at the Mississippi State Penitentiary in Parchman, his conviction is on appeal.

The 2010 trial was Flowers’ sixth trial. Convictions were handed down in the first three trials, but Mississippi’s high court overturned those convictions upon appeal. The fourth and fifth trials ended in hung juries.

Family and friends of the victims as well as Curtis Flowers filled the pews in the En Banc Courtroom of the Carroll Gartin Justice Building to witness the nearly three-hour hearing before the high court. Sheri Lynn Johnson of Cornell University and the assistant director of the Cornell Death Penalty Project argued for the defense, while the state’s case was led by Melanie Thomas, special assistant to the Attorney General.

Johnson argued that District Attorney Doug Evans created cohesiveness between the witnesses in his closing statements by “fly specking of the testimony” of each witness. She claimed that the timing of the state’s witnesses contradicted each other, and Evans misstated the facts to “fill holes” in the state’s evidence.

Johnson referred to the testimony of the late Sam Jones, a longtime Tardy employee who discovered the bodies. Jones testified that he received a call from Tardy shortly after 9 a.m. to come to the store. He said he arrived at the store at 9:30 a.m.

In closing statements, Evans told jurors that Jones arrived at the store around 10 a.m.

Thomas responded that the 911 call was made at 10:15 a.m., and Jones had said he arrived at the store approximately 15 minutes prior to calling 911.

Thomas said, “There is a reasonable inference that he arrived at 10 a.m. There is a 40 minute gap in his testimony. [The state] was tying that action to the rest of the evidence.”

The defense did not offer an objection to Evans’ closing statements during the jury trial, Johnson confirmed when questioned by Chief Justice William L. Waller, Jr.

The defense also argued that the state failed to provide sufficient evidence establishing a motive for the crime although Evans told the jury in closing statements that Flowers had a “beef with the store.”

“There was no evidence that there was any kind of beef with the store,” Johnson said. “Mrs. Tardy treated [Curtis Flowers] well.”

The state defended Evans’ statement, saying his comments were “reasonable in light of the evidence.”

Thomas said, “We had three witnesses around Tardy [that saw Flowers], and three witness that placed Flowers near the gun. There were the broken batteries [the cost docked from Flowers’ check], he owed Bertha Tardy $30, and he was felt a threat by the families.”

Johnson rebuked the testimony of the late Charles “Porky” Collins, claiming that the police lineup was prejudicial to Flowers.

Johnson explained that Collins was shown two photo arrays of six photos each. A photograph of Doyle Simpson was included on the first lineup. Simpson was the owner of the gun used in the murder, claiming it was stolen out of his car the morning of the murder. The gun was never recovered.

Johnson said in closing statements, Evans told jurors that Collins said “The guy ain’t there,” when he looked at the first lineup. Johnson said, based on testimony in the trial, Collins didn’t say that.

Flowers’ photograph was featured on the second photo lineup. Collins made the identification of Flowers as the man he saw standing in front of Tardy Furniture the morning of the murders.

Johnson said the photograph of Flowers was prejudicial because the photo was more close-up than the other five pictured in the array.

Johnson also admonished Evans for using the phrase, “the bodies were found in a pile.”

“This is not the case, one of the bodies lay 10 to 15 feet away,” Johnson said. “This is harmful because it is difficult to see how one person shot four people at close range. Three people were shot at close range, and one at a distance.”

Johnson said all of Evan’s misstatements “prejudiced the outcome of the case.”

In the first three trials, the Mississippi Supreme Court overturned Flowers’ conviction due to racial prejudice by the state during jury selection. The court sited Batson v. Kentucky where the United States Supreme Court ruled that a prosecutor's use of peremptory challenge in a criminal case may not be based solely on race.

Johnson told the court that she is “convinced racial discrimination occurred here.”

The state used six peremptory challenges during jury selection, five of those against black jurors. The defense used eight of its challenges. Of the jurors seated in the trial, one jury member and one alternate were black. Of the potential jurors pulled for the trial, 28 percent were black. Of the actual jurors serving on the jury, eight percent were black.

Johnson claimed that during jury selection, the state delved into the relationships with those connected with the case in greater detail for potential black jurors. However, Johnson said during the trial neutral reasons for each challenge were given by the prosecution.

In rebuttal to the defense’s claims of racial prejudice, Thomas said that the state is “following the admonishment of this court [from the second Flowers’ trial]. Should we ask additional questions to jurors who do not give rise to these questions? With Batson, we are given a set of guidelines the state must follow.”

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