Justices Consider Capital Murder Case Over Black Juror Strikes

The Supreme Court struggled with appeals by a death-row inmate fighting his capital conviction because of a pattern by a local prosecutor of striking Black people from his trial’s jury pool.

Hearing arguments Tuesday, the justices heavily scrutinized the actions of the trial court and defense counsel for Terry Pitchford, a Black Mississippi man convicted of felony murder and sentenced to death for his role in a 2004 armed robbery in which a store owner was killed.

Pitchford claims prosecutors used targeted peremptory strikes to exclude four Black jurors. But a key focus turned on if his defense attorney did enough to raise arguments rebutting the prosecutors’ race-neutral reasons for those strikes during trial.

Several justices criticized the trial lawyer’s performance. Pitchford’s counsel was “the most timid and reticent defense counsel I’ve ever encountered,” said Justice Samuel Alito.

Justice Brett Kavanaugh invoked a lower court judge who noted Pitchford’s lawyer could’ve been more assertive in making her objections. “That’s why this is hard,” he said.

The case implicates Batson v. Kentucky, the Supreme Court’s landmark ruling in 1986 establishing that racial discrimination in jury selection is unconstitutional.

But the justices agreed to review the narrow question of whether the Mississippi Supreme Court, under the Antiterrorism and Effective Death Penalty Act, acted unreasonably in rejecting Pitchford’s appeal.

The court said that he waived his right to attack the race-neutral reasons prosecutors gave for the peremptory strikes of four Black jurors by waiting to raise it after trial.

Conservative justices Neil Gorsuch and Clarence Thomas each raised the technical question of what a reasonable jurist could find as they scrutinized the lack of arguments made by Pitchford at trial.

Pitchford’s counsel before the Supreme Court, Joseph Perkovich, argued that Pitchford at trial tried to raise Batson challenges but that the court accepted the prosecutors’ rationale at face value.

“There is a very big step between determining something is race-neutral and determining it is credible,” he said.

Arguments lasted nearly two hours, as the justices repeatedly struggled with the decisions of Pitchford’s lawyer and the trial judge.

Doug Evans

At the center of the case is Dough Evans, the same district attorney who the justices in 2019 said engaged in a “blatant pattern” of striking Black jurors in the murder trials of death-row inmate Curtis Flowers.

The 7-2 decision, authored by Kavanaugh, reversed Flowers’ conviction, and state prosecutors later dropped the charges.

Evans pursued the Flowers trials in the same court where he successfully tried Pitchford in 2006 for what his counsel described as a “botched armed robbery.” Pitchford was 18 at the time of the crime, and his accomplice was accused by the state of firing the weapon that killed the shopkeeper, Perkovich said.

In briefs, Pitchford said that while the county where he was tried is 40% Black, the trial included just one Black juror. Evans is also accused of at one point striking the first four qualified Black jurors while accepting 16 of the first 18 qualified white prospective jurors.

Kavanaugh and the three liberal justices showed openness to the claim that Pitchford’s lawyer tried multiple times to raise Batson and was told by the trial court that her claims were preserved.

“She should have been more assertive,” Kagan said. “But the only question before us is, did she waive her objection when, three times, she’s told by the court your objection is in the record.”

Mississippi Solicitor General Scott Stewart distinguished the Flowers case from the current one, arguing that Pitchford previously “declared that he failed to ‘properly challenge, litigate, and preserve’ his pretext arguments.

“Petitioner once declared that the facts are X,” Stewart said. “He now declares that it is objectively unreasonable to find that the facts are X. That is extraordinary.”

Stewart came under repeated questioning from Kagan and Kavanaugh, especially as he argued that the trial court preserved counsel’s Batson objection, but not her arguments rebutting prosecutors’ reasons for the jury strikes.

“That’s slicing the baloney very thin,” Kagan said.

‘At Some Point’

Still, most of the conservative justices appeared perplexed about how the trial judge should’ve analyzed the Batson appeal.

Chief Justice John Roberts, who could serve as a decisive vote in the case, asked the fewest questions. They mostly focused on what the court can glean from defense counsel’s comments at trial that she wanted to reserve their Batson challenge “at some point.”

“I just wonder if that’s a source of some confusion for the judge or what we’re supposed to do with that potential,” Roberts said.

A federal district court initially ruled in favor of Pitchford, vacating the conviction. But the US Court of Appeals for the Fifth Circuit reversed, finding the state court acted properly. Mississippi, backed by the Justice Department, asked the justices to affirm.

Pitchford remains on death row, which Kavanaugh emphasized as he wrapped up an extended round of questions.

“The reason this matters is this is a death penalty case,” he said.