Can an independent prosecutor intervene in the Curtis Flowers trials? Not unless Doug Evans asks

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AP Photo/The Greenwood Commonwealth, Taylor Kuykendall

Clemmie Flemming points out to prosecutor Doug Evans, center, where she spotted Curtis Flowers on July 16, 1996,  the morning of four slayings at Tardy Furniture in Winona, on Monday, June 14, 2010 in Greenwood. This is the sixth time Flowers, 40, has been tried for the slayings. 

This week, the public combed over questions asked by U.S. Supreme Court justices in an appeal by a Mississippi death row inmate tried six times – searching for clues to what will happen next.

But even if the court rules in Curtis Flowers’ favor, one constant is likely to remain in the case – the prosecutor, District Attorney Doug Evans.

Justices heard oral arguments Wednesday on whether Evans racially discriminated against potential black jurors in Flowers’ 2010 trial. In that trial, jurors found Flowers guilty for the 1996 murders of four people at the Tardy Furniture store – Bertha Tardy, Carmen Rigby, Robert Golden and Derrick Stewart.

Many legal experts now think the Supreme Court will side with Flowers, who has spent most of the last two decades on death row at the state prison in Parchman.

Evans has prosecuted each of the six cases against Flowers, securing three convictions. All three were tossed out, two for prosecutorial misconduct on Evans’s part. Jurors did not reach unanimous verdicts in two of the other trials.

While Flowers’ lawyers said in his appeal that the court should throw out the recent conviction because of racial bias during jury selection, the state argued that Evans struck potential jurors for reasons unrelated to race, including for working with or being related to members of the Flowers family.

At one point during oral arguments Wednesday, Justice Samuel Alito asked: could the state attorney general’s office have taken over prosecution of the case at any point, moving it to another venue “where so many people don’t know so many other people?”

Per state law, the attorney general can only assist in or take over a case if the district attorney makes such a request, said Special Assistant Attorney General Jason Davis, representing the state.

That’s because the attorney general and Mississippi’s district attorneys are elected to represent different jurisdictions, said legal expert Matt Steffey, a law professor at Mississippi College.

Unlike the federal system, where U.S. attorneys work under the attorney general’s supervision, Mississippi’s system separates the responsibilities of the attorney general, a statewide official, and the district attorneys, who are elected by district. State law doesn’t allow the AG to take over for a local prosecutor if there are no “legal grounds” for the district attorney’s disqualification, the state supreme court has ruled.

Should Flowers get a seventh trial, Evans will still have the power to decide whether and how to prosecute him.

“We were not requested,” Davis of the attorney general’s office told justices Wednesday, as to whether Evans had previously asked the AG to prosecute the case.

Evans is a long-time prosecutor who has represented seven counties in the northern half of the state since 1992, facing only a single challenger in his tenure. This year, Evans is running unopposed again.

As Flowers’ case has gained notoriety in recent years, Evans’ actions in the repeated prosecution of Flowers have been called into question. Last year, APM Reports found – through its podcast “In the Dark” – that Evans historically struck black potential jurors 4.4. times the rate he struck white potential jurors.

“The press coverage of this underscores the importance of not just actual propriety by a prosecutor, but that the prosecutor’s office needs to appear as above reproach as possible,” Steffey said.

16th Circuit Court website

Scott Colom, the district attorney for Columbus and surrounding counties

For District Attorney Scott Colom, who represents the district just east of Evans’ in north Mississippi, prosecutors should always consider the option of recusing themselves when there is public criticism about their personal motivations in prosecuting a case.

In his first term, Colom has passed on cases involving officer-involved shootings, and one where a family member was the victim of a crime, to the AG’s office, he said.

“Every prosecutor should consider whether there’s been overwhelming allegations of impropriety, and how to best handle that,” Colom said.

Colom does not think the attorney general’s office should be able to take over cases from district attorneys without prior approval, though.

In 2014, the Mississippi Supreme Court ruled that the attorney general’s office cannot supplant the district attorney’s office in a prosecution. In that case, Hinds County DA Robert Shuler Smith chose to stop prosecuting a a defendant; two days later, a judge sought to transfer the case to Attorney General Jim Hood’s office.

But the state’s highest court was closely divided on the decision, and the makeup of the court has since changed and as law professor Steffey points out, nothing in state law is ever permanently settled. The state could still pass a statute to change the relationship between the AG and the district attorneys’ offices; the state Constitution can still be amended.

Evans told reporters from APM Reports in January that he does not think the Supreme Court will reverse Flowers’ conviction, and even if justices do, he might prosecute Flowers for the seventh time. “That case has been just as strong from the beginning as it is now,” Evans told “In the Dark.” “There are no problems with the case.”

The Supreme Court is expected to make a decision on Flowers’s appeal by late June.