The court granted defendant Terry Pitchford's petition for writ of certiorari on the question of whether the Mississippi Supreme Court unreasonably determined he waived his right to rebut prosecutor Doug Evans' purportedly "race-neutral reasons" for using four of his 12 peremptory strikes to remove four Black prospective jurors.
State court Judge Joseph Loper ultimately seated a jury of 13 white jurors and one Black juror, including alternates. Pitchford was convicted and sentenced to death for his role in an armed robbery in which prosecutors alleged the owner of a rural bait shop was shot and killed by Pitchford's accomplice. Pitchford was 18 at the time.
In Mississippi capital cases, both the defense and prosecution are allowed to eliminate 12 potential jurors without stating a reason. But the U.S. Supreme Court's 1986 ruling in Batson v. Kentucky
held that peremptory — unexplained — strikes cannot be based on protected characteristics like race, gender or national origin.In 2019's Flowers v. Mississippi
ruling, the U.S. Supreme Court found that Evans, the white prosecutor in Pitchford's case, had in another case used peremptory strikes to remove 41 of 42 Black prospective jurors for no reason other than their race. The high court also found Judge Loper incorrectly applied the test for identifying racial bias in jury selection established in Batson.The defendant, Curtis Flowers, was exonerated the year after the high court's decision. He had spent 23 years wrongfully incarcerated, 20 of them on death row.
Pitchford raised Batson claims during his direct appeal to the Mississippi Supreme Court. But the high court ruled that Judge Loper had applied the test properly. The court cited state precedent in concluding Pitchford's lawyer failed to rebut the prosecutor's pretextual reasons, which amounted to a waiver. Two justices dissented.
In 2018, Pitchford sought federal habeas corpus relief, asserting about two dozen claims, including prosecutorial misconduct, constitutional violations and renewed Batson arguments.
A federal district court in Oxford, Mississippi, found in December 2023 that Judge Loper failed to conduct the third and final step of the Batson test — actually evaluating if a juror was struck for racial reasons — and ordered that Pitchford either be released or tried again.
The Fifth Circuit, however, reversed the decision in January 2024. The appellate court held that the Mississippi Supreme Court's ruling was not unreasonable and that the state's waiver doctrine did not conflict with Supreme Court precedent.
Pitchford's lawyers argued in their petition for writ of certiorari, filed in May, that the ruling deepens a circuit split. They say the Fifth Circuit, like the Fourth and Eighth circuits, has diverged from the approach of most circuits — including the Second, Third, Sixth, Ninth, Tenth and Eleventh — in applying Batson.
Pitchford is represented by Joseph Perkovich and Joseph Welling of Phillips Black Inc. and J. Scott Gilbert of Watkins & Eager PLLC.
Mississippi is represented by Lynn Fitch, Allison Hartman and LaDonna Holland of the Mississippi Attorney General's Office.
The case is Pitchford v. Cain, case number 24-7351, in the Supreme Court of the United States.
--Additional reporting by Marco Poggio. Editing by Haylee Pearl.