The Supreme Court ruled in favor of a Black death-row prisoner in Mississippi on Thursday who claimed that he had been denied a fair trial because prosecutors had struck all but one of the Black potential jurors during jury selection.
Justice Brett Kavanaugh, writing for a 5–4 court, held that the Mississippi courts had “unreasonably applied the clearly established Batson precedents,” referring to a landmark 1986 case, and “unreasonably determined” that defendant had “waived his opportunity to rebut the prosecutor’s asserted race-neutral reasons” for striking multiple Black potential jurors.
The court’s ruling is not surprising based on the available record. But the fact that only five of the court’s nine members reached this conclusion is somewhat troubling. Kavanaugh, along with Chief Justice John Roberts, joined Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson to form the majority. Justice Neil Gorsuch led the rest of the conservatives in dissent.
This lineup is not as surprising as it might look. While Kavanaugh tends to vote with his fellow conservatives on most criminal justice matters, he has shown a special interest in questions of racial discrimination during jury selection throughout his legal career. He even wrote a law review note on Batson v. Kentucky, the landmark 1986 case on the matter, while attending Yale Law School in 1989.
Thursday’s ruling is good news for Terry Pitchford, who robbed a grocery store in Mississippi in 2004 along with his then-friend Eric Bullins. During the robbery, Bullins shot and killed the store’s owner. State prosecutors reached a plea deal with Bullins, who was ineligible for the death penalty as a 16-year-old, and instead sent him to prison for 20 years. Under the felony-murder rule, prosecutors then charged Pitchford, who was 18 years old at the time, with first-degree murder, even though he didn’t pull the trigger. A Mississippi jury convicted him, and the court sentenced him to death.
As recent events have shown, the American jury system is an essential bulwark against tyranny, oppression, and prosecutorial abuses. For that reason, prosecutors in the Jim Crow South routinely excluded Black Americans from participating as jurors in criminal trials, especially in cases with Black defendants. So prevalent was the problem that the phrase “all-white jury” entered the American lexicon as a shorthand phrase for manifestly unjust and unreliable trials in the South.
Black jury participation increased after the demise of de jure racial segregation in the 1950s and 1960s, alongside other forms of direct political participation. But old habits die hard. In the Batson case, for example, a state prosecutor had used his peremptory challenges to strike all of the Black jurors from the jury pool, resulting in an all-white jury for a Black defendant. The Supreme Court ruled in Batson that a state violates a defendant’s equal-protection rights when it “puts him on trial before a jury from which members of his race have been purposefully excluded.”
Since Batson, prosecutors have typically given race-neutral explanations to the court for why they are striking jurors to avoid future legal challenges. According to court records, the prosecutor struck four of the five Black potential jurors and gave reasons that ranged from their showing up 15 minutes late to court to their being young, unmarried, and male like Pitchford. A defendant’s lawyers then have the opportunity to respond or rebut those explanations. In Pitchford’s case, however, that did not happen.
Rather than allow Pitchford’s lawyers to challenge those strikes, the trial judge simply declared that each of them was race-neutral and moved on. This was implausible, as Pitchford’s lawyers later explained, because the prosecution had “deselected black people from the jury panel who had the same familial, living, social or marital circumstances as whites who were not deselected.” Pitchford’s lawyers tried to object at the end of the process, only to be rejected again by the trial judge, as Kavanaugh summarized:
At the close of jury selection, defense counsel sought to raise the Batson issue again. But the trial court twice cut off defense counsel and ended the inquiry before counsel could try to rebut as pretextual the race-neutral reasons articulated by the prosecution: “I think you already made those, and they are clear in the record. For the reasons previously stated, first the Court finds there to be no—well, all the reasons were race neutral as to members that were struck by the district attorney’s office. And so the, the Court finds there to be no Batson violation.”
One might expect the Mississippi Supreme Court, to which Pitchford turned next, to have ordered a new trial after learning about this flawed jury selection process. But it did not. Instead, the court argued that Pitchford had actually waived his Batson objection on appeal because his lawyer had not argued that the explanations were pretextual during the trial. Since the argument hadn’t been raised then, the court surmised, he could not raise them for the first time now.
Generally speaking, U.S. appeals courts do not review legal questions that weren’t already considered and decided at trial first. Last week, for example, the Supreme Court dismissed a case that it had agreed to hear last year after concluding that the underlying legal question hadn’t been properly considered by the lower courts first. Preserving arguments for appeal is an essential part of the criminal trial process, especially in death penalty cases where the stakes can be existential.
But the Mississippi Supreme Court’s ruling was only true because, as Kavanaugh recounted, the trial judge gave the defense lawyer no real opportunity to do so, even acting at one point as if the argument had already been made. This was obvious to the federal district court that heard Pitchford’s federal appeal, prompting it to rule in his favor. But the Fifth Circuit Court of Appeals reversed that decision and deferred to its Mississippi state court brethren.
When arguing before the justices, the state of Mississippi tried to claim that Pitchford’s lawyers had preserved one kind of Batson argument at trial, but not the most important one: that the prosecution’s strikes were pretextual. Justice Neil Gorsuch and the other four dissenting justices agreed, with Gorsuch concluding that Pitchford’s trial lawyers were trying to make a statistical argument of some kind.
The majority dispensed with those assertions with little fanfare. “The State’s argument—that Pitchford preserved his Batson objection but nonetheless somehow waived his Batson pretext argument—does not make much sense and is not a reasonable reading of this record,” Kavanaugh explained. “We need not belabor the matter.” This is a justice’s polite way of saying something is not just wrong, but obviously wrong.
But this particular wrong was apparently not so obvious to four other members of the court. They leaned heavily on a federal law known as the Antiterrorism and Effective Death Penalty Act of 1996, or AEDPA. Congress enacted the law in the wake of the Oklahoma City bombing to curb criminal defendants’ ability to invoke—and federal courts’ ability to provide—habeas corpus for state-level criminal convictions unless the lower court’s ruling was clearly “unreasonable” under “clearly established” federal law or Supreme Court precedent.
In his dissenting opinion, Gorsuch noted that the Supreme Court has interpreted this limit in extremely strict ways. “Showing legal error, we have said, isn’t enough to satisfy [AEDPA],” he explained, quoting from a 2022 ruling by the high court. “Instead, a petitioner must demonstrate that ‘no fairminded jurist could reach the state court’s conclusion under this Court’s precedents.’” As the law’s many critics can attest, AEDPA made it much more difficult for defendants to challenge their convictions in federal court.
Notably, Gorsuch also disputed Pitchford’s implication that his lawyers had been shut down by an overbearing trial judge. He cited purported examples from the transcript where the lawyer could have, in his view, interjected to preserve the argument at hand. I won’t bother outlining his version because Gorsuch himself ultimately says it doesn’t matter. Even if he relied fully upon Pitchford’s version of events, the justice concluded, AEDPA would still obligate him to reject Pitchford’s challenge.
“Even if it were a plausible account, that still would not be enough,” Gorsuch argued. “Under [AEDPA], a federal habeas petitioner must show not only that his version of events is plausible. He must show that the record ‘compels’ it. And no matter how generously one interprets the record in this case, that is a standard Mr. Pitchford cannot meet,” relying on his own “reasonable” inference that Pitchford’s lawyers only preserved one kind of Batson claim but not another.
Kavanaugh, for his part, found that the Mississippi-Gorsuch narrative missed the forest for the trees. “That slices Batson way too thin,” he explained. “At that key point in the jury-selection process—after the prosecutor had asserted facially race-neutral reasons for the peremptory strikes—the Batson objection was a Batson pretext argument.” In a footnote, he stated more bluntly that the dissenters’ “speculation” is not “how the Batson inquiry ordinarily operates.”
Gorsuch, undeterred, made sure to conclude his dissent by noting that Thursday’s decision was a “narrow” one. “Precisely because so many of our AEDPA precedents go unmentioned, I do not read today’s decision as calling any of them into question,” he wrote. If those precedents would compel at least four justices to vote to execute a defendant who didn’t actually kill anyone, and whose lawyers could not properly object to the nearly all-white jury composition at trial, then maybe they deserve a few more questions than they received here.
