The Supreme Court on Thursday threw out a Mississippi man’s conviction and death sentence. By a vote of 5-4, the court in Pitchford v. Cain agreed with Terry Pitchford that the judge at his 2006 trial had not properly analyzed whether the prosecutor in Pitchford’s case violated the Constitution’s ban on racial discrimination in jury selection.
Justice Brett Kavanaugh wrote for the majority, in a nine-page opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Quoting a 2019 opinion in which the court threw out the conviction of Mississippi inmate Curtis Flowers in a case that involved the same prosecutor, Kavanaugh acknowledged that “‘America’s trial judges operate at the front lines of American justice’ and ‘the job of enforcing’” the Supreme Court’s 1986 decision in Batson v. Kentucky, holding that the use of peremptory challenges (that is, challenges for any reason) to remove potential jurors based on race violates the Constitution, “‘rests first and foremost with trial judges.’” But in Pitchford’s case, Kavanaugh wrote, “the Mississippi trial court erroneously omitted” a key part of the Batson inquiry.
Justice Neil Gorsuch dissented, in a 10-page opinion joined by Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. In his view, Kavanaugh’s “opinion errs on the law and the factual record alike.”
Pitchford, who was 18 at the time, was charged with murder for his role in the 2004 shooting death of a shopkeeper. A 16-year-old, Eric Bullins, fired the shots that actually killed Reuben Britt; he pleaded guilty and was sentenced to 20 years in prison.
At Pitchford’s trial, the local district attorney, Doug Evans, used his peremptory challenges to excuse four potential jurors, all of whom were Black.
Pitchford’s lawyers objected, arguing that the strikes violated Batson. The trial judge (who had also presided over Flowers’ case) rejected that argument, resulting in a jury with just one Black juror in a county with a population that is 40% Black.
The Mississippi Supreme Court upheld Pitchford’s conviction and sentence. A Batson challenge has three parts. At the first step, the defendant must make an initial showing that a peremptory strike of a juror was based on race. At the second step, prosecutors must provide a reason for the strike that is not based on race. And at the third step, the defendant’s lawyers have a chance to show that the prosecutors’ race-neutral reason is in fact pretextual – that is, fabricated to cover up the real reason. The state supreme court concluded that Pitchford had waived his right to make his Batson claim because he had not offered any arguments to the trial court at the third step to rebut the prosecutor’s race-neutral explanations – for example, that one potential juror was late to court and another had a relative who committed a “similar offense” to Pitchford.
Pitchford went next to federal court in Mississippi to seek post-conviction relief. U.S. District Judge Michael Mills agreed with Pitchford that the juror strikes violated Batson and ordered the state to either retry Pitchford or release him.
The state appealed to the U.S. Court of Appeals for the 5th Circuit, which reversed. It held that under the Antiterrorism and Effective Death Penalty Act, the federal law governing post-conviction claims, the dispositive question was not whether the Mississippi Supreme Court’s ruling was correct but instead whether the decision was “an ‘objectively unreasonable’ application of a Supreme Court ‘holding[]’” – which, the court of appeals concluded, it was not.
On Thursday, the Supreme Court reversed the 5th Circuit’s decision and sent the case back to the lower courts. Kavanaugh’s analysis in his opinion for the majority was succinct. “After a prosecutor asserts race-neutral reasons for a peremptory strike,” he explained, “the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual. Then, the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual.” But in Pitchford’s case, Kavanaugh continued, “whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred—notwithstanding the repeated efforts of Pitchford’s counsel to pursue and preserve the Batson objection.”
Kavanaugh conceded that, in cases involving AEDPA, federal courts normally are “deferential to the state court. But deference does not mean abdication,” he stressed. And here, “the Mississippi Supreme Court’s conclusion that Pitchford waived his opportunity to rebut the prosecutor’s proffered race-neutral reasons was unreasonable.”
In his dissent, Gorsuch emphasized the high bar that an inmate like Pitchford, who was convicted in state court, must clear to obtain federal post-conviction relief under AEDPA. “Showing legal error, we have said, isn’t enough” to obtain relief, he wrote. “Instead,” he said, an inmate “must demonstrate that ‘no fairminded jurist could reach the state court’s conclusion under this Court’s precedent.’” And when it comes to factual findings, he continued, the state court’s finding “must have so little support in the record that only an ‘unreasonable’ jurist could make it.” In Gorsuch’s view, Pitchford “has failed to satisfy either of these standards.”
