A Mississippi man who's been tried six times for murder asked a judge to free him on bail and throw out the charges against him in motions filed Thursday in state court.
The U.S. Supreme Court overturned the convictions of 49-year-old Curtis Flowers in June, finding racial bias in jury selection. Prosecutors say Flowers killed four people in a Winona furniture store in 1996. He was sentenced to death in 2010's sixth trial.
Defense lawyer Rob McDuff argued in the filings made in Montgomery County Circuit Court that Mississippi law requires bail after two capital murder mistrials. Flowers' fourth and fifth trials ended in mistrials after hung juries.
McDuff argued that not only must Circuit Judge Joseph Loper grant bail, but the judge must grant it on "reasonable and affordable terms."
The Mississippi Constitution allows judges to deny bail in capital cases when "the proof is evident or the presumption great" that a defendant is guilty. McDuff argues those conditions are no longer met after all the holes that have been poked in the prosecution's case, including a jailhouse informant and two witnesses who have recanted in recorded remarks to American Public Media's "In the Dark" podcast.
McDuff offered to let Loper impose electronic monitoring, but said that shouldn't be necessary, arguing that Flowers doesn't meet the profile of someone who's a flight risk or a danger to the community.
More significantly, McDuff argues that Loper should forbid a seventh trial for Flowers and quash the charges, citing prosecutorial misconduct and arguing there should be a limit to "oppressive retrials" for Flowers. There's little precedent in Mississippi for such a motion to throw out charges.
The motion notes that the Supreme Court has banned retrials when the prosecution acts wrongly to deliberately provoke a mistrial. McDuff says something like that has happened in the Flowers case, with four convictions overturned because of prosecutorial misconduct. "In all four instances it was designed to illegally enhance the prosecution's chances of conviction of Flowers."
McDuff cites cases that suggest there should be limits to retrials, although the U.S. Supreme Court and Mississippi courts have never established a definitive limit. He also cites cases that say a judge can dismiss charges after a mistrial if the judge determines a retrial "is against the concept of fundamental fairness."
"Flowers' half-dozen trials are a study in the tactics and circumstances typifying oppressive prosecutorial misconduct," McDuff wrote.
McDuff declined to comment Thursday when asked if he would seek to remove Loper and Montgomery County District Attorney Doug Evans from the case.
It's unclear whether Evans will seek to try Flowers a seventh time. Evans is unopposed in his reelection bid this year for an eighth four-year term in a district that includes seven rural Mississippi counties. Evans has said he remains confident of Flowers' guilt, as have some relatives of victims. Prosecutors will have time to reply, and then Loper will have to decide if he wants to hear arguments. McDuff said he expects action within weeks.
The case began July 16, 1996, when four people were found shot to death inside Tardy Furniture in downtown Winona: 59-year-old owner Bertha Tardy and three employees — 45-year-old Carmen Rigby, 42-year-old Robert Golden and 16-year-old Derrick "Bobo" Stewart.
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