July 3, 2018 | by Parker Yesko
There are two separate, side-by-side efforts unfolding to prevent Curtis Flowers from being executed. One is a direct appeal of his conviction, and the other is a request for post-conviction relief. It's quite possible that new information discovered by reporters for In the Dark could make a difference in the outcomes of both.
The In the Dark findings most likely to be significant are the revelation that the state's only piece of direct evidence was a lie — that Odell Hallmon has said his testimony about Flowers’ confession was false and that he provided it in exchange for leniency from Doug Evans on his own crimes; that Willie James Hemphill was pursued as an alternate suspect in the days after the Tardy Furniture murders and that prosecutors may have failed to turn over records about it; and that an exhaustive jury analysis by APM Reports found that in Evans' 26-year tenure as district attorney, his office has struck black prospective jurors at 4.4 times the rate it struck white ones.
Flowers' lawyers are working on a direct appeal of the guilty verdict in his sixth trial, in June 2010. The effort, now eight years old, is in its final stage. In 2014, the Mississippi Supreme Court — which had shifted to the right since it reversed Flowers' third conviction in 2007 — upheld his conviction.
In 2016, the U.S. Supreme Court threw out the state's 2014 decision and ordered the Mississippi Supreme Court to consider the case again in light of a recent SCOTUS ruling in Foster v. Chatman, which dealt with race in jury selection. In 2017, the Mississippi Supreme Court reviewed the case a second time and upheld the conviction again.
In a final attempt to get the conviction overturned on direct appeal, Flowers' attorneys are presenting their case once more to the U.S. Supreme Court. In June, they filed a Petition for a Writ of Certiorari, which asks the High Court to look at the case again. In their brief, Flowers' lawyers point to Doug Evans' record of using race in jury selection and cite Odell Hallmon's statements to In the Dark that his testimony in Flowers' trials was false.
A petition for a Writ of Certiorari asks the Supreme Court to review a case. Flowers' lawyers present one key question to the U.S. Supreme Court for consideration: Should Doug Evans' history of "adjudicated, purposeful race discrimination" be considered when looking at how he used his peremptory strikes in jury selection? SCOTUS will review Flowers' petition, likely in October 2018, and decide whether to "grant cert" and actually listen to oral arguments in the case.
Unlike a direct appeal, which looks at the record of the trial itself and argues that errors were made in court, the purpose of a post-conviction petition is to bring forward facts that weren’t known at the time of the original verdict. There are important procedural differences between an appeal and a post-conviction petition, but, broadly speaking, their goals are the same: to prove that Flowers’ conviction was unfair and should be overturned.
Flowers has a different team of lawyers working on his post-conviction appeal. They have filed a petition arguing that he has a dozen "grounds for relief," each with its own points and subpoints. The claims run the gamut from ineffective assistance of defense counsel to prosecutors' history of using race in jury selection, allegations of false testimony by investigators to recent scientific findings that discredit the testimony of the state's ballistics and shoeprint experts, and failures by Doug Evans' office to turn over certain things: evidence about alternate suspects, and the fact that Odell Hallmon's sister, Patricia, was indicted for tax fraud just before she testified as a state's witness in Flowers' sixth trial.
This post-conviction petition was filed in 2016, following the Mississippi Supreme Court's first denial of Flowers' direct appeal, and it's been on hold since then while his direct appeal has continued to wind through the courts. But the post-conviction effort has developed in the weeks since the second season of In the Dark began.
On June 7, Flowers' post-conviction attorneys filed a motion to amend their original 2016 petition. They want more time to investigate newly discovered facts. In a subsequent filing, they cited reporting by In the Dark that Odell Hallmon said he lied on the stand, an admission that severely undercuts the case the state presented at Flowers' sixth trial.
And just last Thursday, June 28, Flowers' attorneys added to their original motion, arguing that "stunning new evidence has come to light." They wrote: "On June 26, [the day 'In the Dark' Episode 10 was released, we] learned that in 1996, the State interviewed, arrested, and held an alternative suspect in the Tardy murders, Willie James Hemphill." Flowers' attorneys cite Episode 10 to argue that evidence pointing away from Flowers' guilt was withheld from the defense, specifically mentioning that Hemphill was booked into jail in Winona wearing Fila Grant Hill shoes and was held for 11 days.
"The new evidence coming to light strikes at the heart of Mr. Flowers's conviction and demonstrates a pattern of prosecutorial misconduct," according to the filing. To be entitled to a new trial, his attorneys write, "[Flowers] need only show that introduction of this evidence at trial would have undermined confidence in the outcome of the trial."
Doug Evans recently told a local newspaper, The Greenwood Commonwealth, that he hasn't heard the podcast — "I haven't listened to it and I don't intend to," he said. Nevertheless, attorneys for the state have opposed Flowers' efforts to expand his post-conviction filing to include these new discoveries. Whether it's amended or not, Flowers' post-conviction appeal is just beginning and could have a long path ahead.
Flowers' petition for post-conviction relief has been on hold in the state Supreme Court since 2016. The petition contains many claims about flaws in the conviction and briefly outlines each of them. In the next year or two, the court will review either the 2016 petition or an amended version of it. The justices can reverse the conviction outright, but they're more likely to identify certain claims that look worthy of further examination and grant a hearing to flesh them out in the court where the case was originally tried.
UPDATE: In February 2019, Flowers' lawyers filed an amended post-conviction petition, which includes findings from In the Dark.
This is a sign of progress even though the appeal will move to a lower court. Whichever claims made it through the state Supreme Court's review will be sent to Joseph Loper, the same judge who presided over Flowers' sixth trial. Loper will hold a hearing, perhaps several, to fully examine the evidence Flowers has presented to get his conviction overturned. Witnesses will take the stand — the investigators in the case, the experts who testified at trial — and they'll be questioned and cross-examined about Flowers' claims. Loper can overturn the conviction on any one claim, or he can scrap them all. If Loper's no longer on the bench at this point, this review will be conducted by whoever fills his seat.
If he loses at the circuit court level, Flowers could appeal the case back to the state Supreme Court. The justices would examine the record created at the evidentiary hearing held by Loper. So this appeal would include fewer claims but a deeper fleshing out of each.
If Flowers has lost at the previous stages, this would be the last chance for him to prevail in his state post-conviction appeal.
If Flowers loses in state court, then the case moves to the federal level. It may be difficult for Flowers to prevail here. At this point, he will be very limited in the types of claims he can present. They have to be constitutionally based — in the not-so-distant past, claims of actual innocence might not even have been enough if the defendant's trial was otherwise constitutionally fair. The court will also be more likely to defer to previous rulings on the belief that the first record is the best record; that two decades later, evidence may have eroded, or witnesses may be dead.
If Flowers loses in the federal district court in Northern Mississippi, he'll appeal to the 5th Circuit Court in New Orleans.
If Flowers has lost at the previous stages, this would be the last chance for him to prevail in his federal post-conviction appeal.
Flowers' goal in any of these hearings or judicial reviews is to get a reversal of his conviction. One could come at basically any point. This would be the ultimate remedy for Flowers. But even then, he isn't in the clear. Remember — his conviction has been reversed three times already, and Doug Evans has just tried the case again. There's the question of whether Evans will still be in office if and when a reversal comes down — possibly years in the future. Flowers' attorneys may also attempt to have Evans removed from the case. Regardless of what happens to Doug Evans, the district attorney will have three options if Flowers' 2010 conviction is reversed.
Curtis Flowers walks out of prison a free man, having spent roughly half his life at Parchman. He'll return to a world very different from the one he left. His mother, Lola, died in 2018. Before she did, Curtis told her he was looking forward to cooking elaborate meals on the outside, especially short ribs.
Once everything is exhausted — all appeals and post-conviction claims — Flowers would face execution. That, too, might take a while. No one has been executed in Mississippi since 2012, in part because there's litigation pending about whether the state's use of certain lethal drugs in executions is constitutional. Even if his case reaches this stage, there's no assurance that Flowers would ever be executed. His legal team could still attempt several last-ditch maneuvers to save him, like getting his execution stayed or his sentence commuted to life in prison. Inmates often die in prison before they reach the death chamber.