The Curtis Flowers Saga: A Failure of Prosecutorial Accountability

Abstract

The job of a prosecutor is to both “do justice” and advocate for the state. Our justice system ensures that they are able to perform this dual duty free from public criticism through the doctrines of prosecutorial discretion and immunity. These doctrines allow prosecutors to exercise great power with very little consequence. They decide whether to charge, what to charge, how many charges to bring, and at what level. They negotiate plea agreements with impunity. And when they are caught behaving badly — withholding evidence, asking improper questions, making prejudicial statements during closing argument, or even using strikes to remove all the persons of color from a jury — most face no consequences at all. In fact, they often get a chance to try again. This can be seen most recently through the multiple trials of Curtis Flowers, a man who has been tried, retried, and retried again on the same charges by the same prosecutor six different times. Appellate courts, including the U.S. Supreme Court, have found that Doug Evans, the prosecutor in that case, has engaged in misconduct. At various points he has made improper statements during trial, withheld evidence, and most damningly, struck all or most of the black members of multiple juries in violation of the Supreme Court’s ruling in Batson v. Kentucky. And yet, though Mr. Flowers is now out on bail, his future still depends on a decision by prosecutor Doug Evans, the same man who engaged in misconduct in at least four out of the previous six trials. This paper will analyze the current state of prosecutorial accountability, different forms of prosecutorial misconduct, the checks that currently exist, and why those checks tend to be ineffective. It will do so through the lens of the Curtis Flowers case. It will analyze how and why District Attorney Doug Evans was able to retry the case six times, even after multiple appellate court findings of prosecutorial misconduct and Batson violations. Finally, this paper will conclude with an argument for a simple, albeit partial solution: once a prosecutor is found guilty of serious misconduct in a case, he must recuse himself and his entire office from re-arguing the case. This will help to ensure a defendant’s right to a fair trial without overturning past jurisprudence or punish a prosecutor too harshly for a “technical error.” It will also give prosecutors incentive to act ethically if they want to win the case.