Law360 (May 28, 2026, 11:06 AM EDT) -- The U.S. Supreme Court ruled Thursday that a Black Mississippi death row prisoner who argued racial discrimination tainted his jury selection is entitled to habeas corpus relief, finding that Mississippi's courts improperly rejected his challenge to the prosecutor's juror strikes.

In a narrow 5-4 decision written by Justice Brett Kavanaugh, the majority held that the Mississippi Supreme Court failed to properly follow the U.S. Supreme Court precedent in Batson v. Kentucky. The Mississippi high court had held that the judge who presided over Terry Pitchford's 2006 capital murder trial properly handled a challenge by Pitchford's attorney to the prosecutor's juror strikes.

Justice Kavanaugh said that although the trial court required the prosecutor to provide race-neutral reasons for the strikes, it never gave Pitchford's counsel a meaningful opportunity to argue that those reasons were pretextual, nor made its own findings about the reasons for the challenges.

"We need not belabor the matter. After a prosecutor asserts race-neutral reasons for a peremptory strike, 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," he wrote.

"In this case, 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," the opinion said.

Justice Kavanaugh's opinion was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Pitchford was convicted in the killing of a white storekeeper in Grenada, Mississippi, during a robbery he carried out with Eric Bullins. Pitchford was 18 at the time of the crime. Bullins, who fired the fatal shots, reached a plea agreement and received a 20-year sentence for the homicide.

The ruling reverses the judgment of the Fifth Circuit, which had overturned a federal district court's grant of habeas relief to Pitchford. Pitchford filed a habeas corpus petition in the U.S. District Court for the Northern District of Mississippi after the Mississippi Supreme Court rejected his direct appeal of his conviction in a divided opinion.

The case will now return to the Fifth Circuit. Joseph Perkovich of Phillips Black Inc., who represents Pitchford and argued on his behalf before the justices on March 31, said he expects the case will then return to federal district court and that a December 2023 order requiring Mississippi to either retry Pitchford within 180 days or release him will be reinstated.

"We are very pleased to see the court recognize the extreme failure of the state courts to enforce essential protections under the Constitution," Perkovich told Law360 in an email. "The court has corrected the mistake of the Fifth Circuit Court of Appeals, and Mr. Pitchford is now entitled to a fair trial in the state court."

Under 1986's Batson v. Kentucky, which forbids peremptory strikes based on protected characteristics like race, gender or national origin, trial courts must apply a three-part test every time an attorney challenges an adversarial party's decision to exclude a person from serving on a jury.

First, the defense must argue that a juror was struck because of race or gender. The prosecutor must then provide a race- or gender-neutral reason for the strike. Finally, the defense is given a chance to argue that the stated reason was merely a pretext for intentional discrimination, and the court ultimately decides whether a Batson violation occurred.

Pitchford's lead prosecutor used four of his 12 peremptory strikes allowed under state law to remove four of the five Black prospective jurors. The jury that ultimately convicted Pitchford consisted of 11 white jurors and one Black juror in a county, Grenada, that was then about 60% white and 40% Black.

Writing for the majority, Justice Kavanaugh said Mississippi's high court erred in concluding that Pitchford's trial attorney, Alison Steiner, had waived her arguments at the final step of the Batson analysis by failing to rebut the reasons Doug Evans, the lead prosecutor in the case, gave for the juror strikes during jury selection.

"The Mississippi Supreme Court unreasonably applied the clearly established Batson precedents and unreasonably determined that Pitchford waived his opportunity to rebut the prosecutor's asserted race-neutral reasons for the peremptory strikes of four Black prospective jurors," Justice Kavanaugh wrote.

The case, Pitchford v. Cain, turned in large part on a quick exchange between Steiner and Judge Joseph Loper during jury selection, captured only in trial transcripts.

According to Page 326 of the transcript, Judge Loper accepted as race-neutral the explanation offered by prosecutor Evans, who said he excluded a Black man from the jury because he was around the same age as Pitchford, was unmarried and had children, and was therefore "too closely related to the defendant."

Then, on Page 331, Steiner asked the judge to make sure her Batson objection was preserved for the record.

"I think you already made those, and they are clear in the record," Judge Loper replied. "All the reasons were race neutral as to members that were struck by the district attorney's office."

Both Judge Loper and Evans are familiar figures to the U.S. Supreme Court, which in 2019 found that Evans, who is white, used peremptory strikes to remove 41 of 42 Black prospective jurors for racial reasons in the trial of another Black Mississippian, Curtis Flowers. In that same ruling, the court found that Judge Loper misapplied the Batson test.

In the end, citing the court's precedents, including the Flowers v. Mississippi decision, a slim majority of the justices concluded that the Mississippi Supreme Court unreasonably applied Batson and that federal habeas law permitted Pitchford to obtain relief.

During oral arguments on March 31, Justice Samuel Alito criticized Steiner for what he saw as her hesitation in vigorously litigating the Batson issue before the judge moved on. He described her as "the most timid and reticent defense counsel that I have encountered" and suggested she lacked the necessary "toughness" to represent Pitchford, who was facing the death penalty.

In Thursday's opinion, Justice Kavanaugh agreed with the December 2023 finding of the U.S. district court that "perhaps Pitchford's counsel should have been more assertive, but … there was no waiver by Pitchford."

Justice Kavanaugh wrote that while Pitchford had preserved a Batson objection in the record, he did not preserve an actual Batson argument, would be a misapplication of that seminal ruling.

"That slices Batson way too thin," he wrote.

"The bottom line: 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," the opinion said.

Justice Neil Gorsuch filed a dissenting opinion, in which Justices Alito, Clarence Thomas and Amy Coney Barrett joined, saying the federal habeas law barred relief for Pitchford.

In the dissent, Justice Gorsuch interpreted the trial record as showing that Pitchford's counsel did not make an attempt to argue a Batson step three, but instead told the trial court about it after jury selection had already concluded.

"Nothing in the record indicates a trial court seeking to thwart defense counsel's ability to represent their client," he wrote. "In fact, the record shows that Mr. Pitchford's attorneys were more than capable of speaking up when they had something to say."

In light of the record, Justice Gorsuch said Pitchford could not meet the steep legal standards imposed by the Antiterrorism and Effective Death Penalty Act, which the Supreme Court has held requires a showing that "no fair-minded jurist could reach the state court's conclusion," or that the finding has so little support in the record that only an "unreasonable" jurist could make it.

"As I see things, Mr. Pitchford has failed to satisfy either of these standards," Justice Gorsuch wrote. "The court's opinion errs on the law and the factual record alike."

Pitchford is represented by Joseph Perkovich of Phillips Black Inc. and Jo-Ann Tamila Sagar and Jessica Ellsworth of Hogan Lovells.

Mississippi Department of Corrections Commissioner Burl Cain is represented by Scott Grant Stewart of the Mississippi Attorney General's Office.

The federal government is represented by D. John Sauer and Emily Ferguson of the U.S. Department of Justice.

The case is Pitchford v. Cain, case number 24-7351, in the Supreme Court of the United States.

--Editing by Robert Rudinger.

Update: This article has been updated with comment from counsel for Terry Pitchford.

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