Justices play blame game over racial discrimination on Mississippi jury

WASHINGTON (CN) — A Mississippi man’s capital conviction split the Supreme Court on Tuesday as the justices put his lawyer’s trial performance under the microscope.

Terry Pitchford says the state’s prosecutor unconstitutionally struck Black jurors at his trial. At the Supreme Court, however, Pitchford’s defense attorney was the one in the hot seat as the justices considered whether she put up enough of a fight during jury selection.

“Trial lawyers have to have a certain amount of toughness,” Justice Samuel Alito, a George W. Bush appointee, said, describing Pitchford’s attorney as “the most timid and reticent defense counsel that I have encountered.”

“Any competent defense attorney that I knew would have spoken up,” Alito said.

At 18, Pitchford was sentenced to death for his participation in a fatal 2004 robbery that killed a local grocer. Reuben Britt, the store owner of Crossroads Grocery, was shot three times by Pitchford’s accomplice, Eric Bullins. Pitchford says he fired nonlethal pellets into the floor, but prosecutors charged him with capital murder, claiming he believed the .38 caliber revolver was loaded with lethal ammunition.

During the trial, prosecutors struck four of the five potential Black jurors without any voir dire examination. The prosecutor in Pitchford’s case, former District Attorney Doug Evans, has already faced Supreme Court scrutiny over his efforts to exclude Black jurors while trying Curtis Flowers six times for the same crime. In 2019, the high court overturned Flowers’ death sentence and conviction, and Evans resigned as district attorney in 2023.

A state court held that Pitchford’s lawyer failed to adequately defend and therefore forfeited his Batsonclaim — which allows defendants to challenge the exclusion of a potential juror based on their race, ethnicity, sex or other protected characteristic.

Under Batson v. Kentucky, courts use a three-step process requiring defense attorneys to present preliminary evidence of intentional racial discrimination, allowing prosecutors to offer a race-neutral explanation and requiring the court to consider all available information.

Pitchford’s attorney before the Supreme Court pushed the justices to correct the trial court’s failures.

“The trial court’s own rectified failings in this prosecution, also riddled with other misconduct, yielded a jury selected with discriminatory taint, which in turn condemned an 18-year-old whose accomplice, according to the state’s case, killed the shopkeeper in this botched robbery,” Joseph John Perkovich, an attorney with Phillips Black, said. “We urge this court to reinforce the Equal Protection Clause’s guarantees for defendants as well as citizens willing to accept the awesome responsibility of jury service.”

Justice Neil Gorsuch, a Donald Trump appointee, conceded that Pitchford’s trial “was not a model by anybody’s stretch of imagination” but seemed skeptical that the judge was at fault.

“We have to decide whether the Mississippi Supreme Court made an unreasonable determination of fact,” Gorsuch said. “The determination of fact here is that she waived or, really, more accurately, forfeited. But it’s her burden, we all agree on that, to raise pretext. She didn’t raise a pretext at all, anywhere.”

But Justice Sonia Sotomayor, a Barack Obama appointee, said Pitchford’s lawyer couldn’t get a word in edgewise.

“After each race-neutral reason is given, [the judge] then asks for the next one and the next one and the next one. … He never pauses to give her a chance to address the pretext,” Sotomayor said.

For nearly two hours, the justices quarrelled over whether the trial transcript, trying to parse the context of the back-and-forth between Pitchford’s attorney and the judge.

“One thing I find challenging in reading the transcript, it doesn’t record pauses, it doesn’t record seconds, and so, if we had a transcript here where the judge said, sit down, counsel, I don’t want to hear anything more from you — that would be a lot clearer,” Justice Amy Coney Barrett, another Trump appointee, said.

Justice Elena Kagan, another Obama appointee, saw no ambiguity in the transcript on the question before the court.

“She should have said a lot more stuff, she should have been more assertive, 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,” Kagan said.

Despite the extended inquiry, Justice Ketanji Brown Jackson, a Joe Biden appointee, proposed a simple solution to the case.

“I see this as possibly a very short opinion. … It would go something like Pitchford’s trial counsel made a Batson objection and reraised it multiple times,” Jackson said. “Each time, the trial judge reassured her that it was preserved. Nevertheless, the Mississippi Supreme Court said it was waived. That’s unreasonable. The end.”

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