During oral arguments, an attorney for Terry Pitchford told the justices that the state judge presiding over his criminal trial for felony murder failed to properly apply a three-step test the Supreme Court devised in Batson v. Kentucky
, which forbids peremptory strikes based on protected characteristics like race, gender or national origin."The trial court grasped and conducted just two of Batson's three steps after the district attorney struck in succession four Black citizens," Joseph Perkovich of Phillips Black Inc. told the justices, arguing on behalf of Pitchford.
Under Batson, the defense must first claim that a juror strike was motivated by race or gender. Second, the prosecutor must offer a race- or gender-neutral explanation. Finally, the defense bears the burden of proving that the strike was the product of intentional discrimination. The court then decides.
Perkovich told the justices that the Mississippi Supreme Court was wrong in finding that Pitchford's trial attorney, Alison Steiner, waived her Batson arguments by not pushing her objection to the strikes during jury selection, known in law as voir dire.
By appealing to the Supreme Court, Pitchford is asking for a kind of habeas corpus relief that federal courts rarely grant because of strict statutory limits. Were the justices to find in his favor, his case could go back before the Mississippi Supreme Court, which would have to make a new determination on his Batson claim or potentially order further proceedings that could lead to his release from prison.
There are no sound recordings of Pitchford's trial, and the only record of the proceedings consists of a transcript that has been reviewed by state and federal courts several times following the verdict. Most of the questions by the justices on Tuesday zeroed in on what the transcripts tell about the exchange between Steiner and Judge Joseph Loper when she objected to juror strikes.
On page 326 of the transcript, Judge Loper is recorded as accepting as "race neutral" the reason that the lead prosecutor in Pitchford's case, Doug Evans, offered in excluding a Black potential juror: that he was "too closely related to the defendant" because he was about the same age as Pitchford and, like him, was unmarried and had children.
On page 331, Steiner is recorded as asking the judge to preserve her Batson objection in the record.
"I think you already made those, and they are clear in the record," Judge Loper responded. "All the reasons were race neutral as to members that were struck by the district attorney's office."
Opening the questioning Tuesday, Justice Clarence Thomas asked Perkovich whether he thought Steiner effectively showed that Evans' strikes were racially motivated, the third step in the Batson framework.
Perkovich responded that the step was bypassed when Judge Loper accepted Evans' justification as race-neutral.
Justices Neil Gorsuch and Samuel Alito questioned whether Steiner actually objected to the pretext of Evans' explanations at all, and if she didn't, whether the Mississippi Supreme Court was reasonable in interpreting that as abandoning her Batson argument.
"I didn't see where the defense counsel even mentioned the word 'pretext' to the court anywhere in the transcript until after trial," Justice Gorsuch asked Perkovich. "Given that, could somebody read this as saying, 'I don't have a pretext argument?'"
Justice Alito, meanwhile, was sharply critical of Steiner, while saying Judge Loper did not handle the Batson challenge properly.
"This is the most timid and reticent defense counsel that I have encountered. Any competent defense attorney that I knew would have spoken up," he said. "Trial lawyers have to have a certain amount of toughness. And she had every opportunity."
Perkovich argued that Judge Loper had the burden of independently questioning whether Evans' strike justifications were cover for racially discriminatory intent.
"There still is this duty for the court to consider all the circumstances bearing on racial animosity in this record and to make an assessment," he said. "Our cardinal sort of point here is that on this record, you have a defense counsel seeking to be heard on this, and the response from the court is 'your case is in the record, and I'm going to reiterate my ruling.'"
The case of Pitchford, who was sentenced to death for a robbery in Grenada, Mississippi, in which a storekeeper was fatally shot, sits at the intersection of federal and state law, the habeas corpus process and constitutional concerns about racism creeping into the criminal justice system. It also resurfaces personalities that aren't new to the high court.
Evans had also prosecuted Curtis Flowers, another Black Mississippian, in each of his six capital trials. And Judge Loper presided over Flowers' sixth trial in 2010. Flowers' conviction was eventually overturned and his charges dropped after he spent 23 years wrongfully incarcerated, 20 of them on death row.
In 2019, in Flowers v. Mississippi
, the Supreme Court found that Evans, who is white, used peremptory strikes to remove 41 of 42 Black prospective jurors for racial reasons. It also found that Judge Loper misapplied the Batson test.Perkovich told the high court Tuesday that Mississippi Supreme Court capital reversals published in 2003 and 2000 in cases where Evans was the lead prosecutors should have alerted Judge Loper to scrutinize his justifications more closely.
On Tuesday, the three liberal-leaning justices appeared to view the issue more as a failure by the judge to follow the Batson process, and less about Steiner's failure as a defense attorney.
"I think you made the point that she didn't do very well ... that she could have done a lot better than she did. But that's really not the question before us," Justice Elena Kagan told Scott Grant Stewart of the Mississippi Attorney General's Office. "The question is whether she's waived her objection. And three times, she's told by the court that the objection has been preserved."
Justice Ketanji Brown Jackson, meanwhile, said Steiner's words captured in the transcript show that she was asking Judge Loper for an opportunity to fully argue her Batson claim, only to be told that she had no way to do so.
"It does indicate that she was suggesting that she would like to do something," Justice Jackson said. "It sounds to me from the transcript that the trial court was cutting her off, was not giving her a chance."
Justice Sonia Sotomayor noted that, according to the transcript, Judge Loper did not appear to pause to consider the various reasons Evans gave the court for excluding Black people from the jury.
Stewart argued that the Mississippi Supreme Court found that Steiner waived the pretext arguments, not the Batson objection overall, a distinction he argued shows the state high court has followed constitutional principles in reviewing the case.
"That's slicing the baloney very thin," Justice Kagan responded, finding that distinction artificial.
Toward the end of the hearing, Justice Jackson bluntly questioned Emily M. Ferguson, the U.S. Justice Department attorney who argued on behalf of the federal government, on why the Trump administration joined the oral arguments as an amicus.
"The United States has entered this case as an amicus curiae, meaning that you did not have to be here," she asked. "Why is the United States interested in being involved in this case?"
Ferguson responded that as a party in many criminal trials, the government has a stake in "defending the right of courts of appeals to exercise their discretion to consider juror comparison arguments."
She also said, in response to a question by Justice Amy Coney Barrett, that the U.S. government routinely gets involved as an amicus in cases touching on constitutional issues that impact litigation.
"It's quite common for us to appear," Ferguson said.
Pitchford is represented by Joseph Perkovich of Phillips Black Inc. and Jo-Ann Tamila Sagar 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 Adam LoBelia.