Supreme Court Signals Support for Terry Pitchford in Mississippi Death Penalty Batson Appeal
During oral argument in Terry Pitchford’s Batson appeal, several justices — including Brett Kavanaugh and Samuel Alito — sharply questioned the state’s waiver argument and the trial judge’s handling of jury selection, with Kavanaugh reading the record in a way that suggested defense counsel did make contemporaneous objections and signaling sympathy for Pitchford. Pitchford’s lawyers explicitly appealed to Kavanaugh’s past scholarship and the Court’s Flowers decisions (the same prosecutor, Doug Evans, prosecuted both cases), an amicus brief from excluded Black jurors echoed claims of racial strikes, and the Court agreed to decide under AEDPA whether Mississippi unreasonably found Pitchford waived his right to rebut the prosecutor’s race‑neutral explanations, likely leaving remedy issues to lower courts.
📌 Key Facts
- The Supreme Court took Pitchford’s death-penalty Batson claim in a federal habeas (AEDPA) posture to decide whether Mississippi’s highest court unreasonably held that Pitchford waived his right to rebut the prosecutor’s race‑neutral explanations; commentators note the current Republican-appointed majority has often applied AEDPA narrowly, which could affect relief.
- Pitchford’s lawyers explicitly framed Justice Brett Kavanaugh as a pivotal vote, opening their final merits brief by quoting his 1989 Yale Law Journal student note (which argued that relying solely on prosecutors’ good faith is misguided and endorsed a defense right to be present and rebut explanations) and by citing Kavanaugh’s prior majority opinion for Curtis Flowers against the same prosecutor.
- Both the Flowers and Pitchford prosecutions were handled by Mississippi district attorney Doug Evans before the same trial judge; in Pitchford’s trial Evans used peremptory strikes on four of the five Black prospective jurors, leaving a jury with only one Black member.
- Excluded Black prospective jurors filed an amicus brief telling the Court it is already “well acquainted with Evans” from Flowers and asserting that Evans again relied on race in deciding whom to strike.
- U.S. District Judge Michael P. Mills (a George W. Bush appointee) said the Flowers ruling was “at the very least, informative” and should have been considered by Mississippi’s appellate courts when evaluating Pitchford’s Batson claim.
- During March 31 oral argument, several justices — including Brett Kavanaugh and Samuel Alito — sharply criticized how the trial judge handled jury selection and how defense counsel objected; Kavanaugh read the trial transcript and suggested Pitchford’s lawyer did make contemporaneous objections, undercutting the state’s waiver argument and aligning more with Judge Mills’ earlier ruling for Pitchford.
- Justice Alito called Pitchford’s defense counsel “the most timid and reticent” he had ever seen but also faulted trial Judge Joseph Loper for failing to properly analyze whether race motivated the prosecutor’s dismissals.
- Mississippi Solicitor General Scott Stewart urged the Court to distinguish Pitchford from Curtis Flowers, but justices repeatedly invoked Flowers in questioning; the Court could rule for Pitchford in a way that remands issues to lower courts to determine whether his conviction and death sentence must be overturned rather than deciding the remedy outright.
📊 Relevant Data
Grenada County, Mississippi, had a population that was 43.5% Black and 52.4% White according to the 2020 census, with a total population of 21,629.
Grenada County, Mississippi Demographics and Housing 2020 Decennial Census — Tallahassee Democrat
In Mississippi, the homicide victimization rate for Black residents was 39.2 per 100,000 in 2023, compared to the overall state rate of 19.4 per 100,000, with Black residents comprising about 38% of the population but accounting for an estimated 77% of homicide victims.
Black Homicide Victimization in the United States — Violence Policy Center
In the United States in 2019, 81.3% of White murder victims were killed by White offenders, and 88.6% of Black murder victims were killed by Black offenders, according to FBI data.
In the United States in 2023, there were 6,405 Black murder offenders and 8,842 White murder offenders, with Black people comprising 13.6% of the population and White people 58.9%, resulting in a per capita offending rate approximately 3.1 times higher for Black people.
Number of murder offenders 2023, by race — Statista
📰 Source Timeline (4)
Follow how coverage of this story developed over time
- During March 31 oral arguments, several justices, including Brett Kavanaugh and Samuel Alito, sharply criticized how the trial judge handled jury selection and how defense counsel objected, signaling concern about racial bias and Batson enforcement.
- Justice Kavanaugh read from the trial transcript and suggested that Pitchford’s lawyer did make contemporaneous objections, undercutting the state’s waiver argument and aligning more with U.S. District Judge Michael P. Mills’ earlier ruling for Pitchford.
- Justice Alito described Pitchford’s defense counsel as "the most timid and reticent" he had ever seen but also faulted trial Judge Joseph Loper for not properly analyzing whether race drove the prosecutor’s dismissal of Black jurors.
- Mississippi Solicitor General Scott Stewart tried to distinguish Pitchford’s case from Curtis Flowers’ case by arguing that, although both are extraordinary, they warrant different results, but justices repeatedly invoked Flowers in questioning.
- The article notes the Court could rule for Pitchford in a way that sends issues back to lower courts to decide whether his conviction and death sentence must be overturned, rather than resolving that remedy question outright.
- Details that Terry Pitchford’s lawyers are explicitly appealing to Justice Brett Kavanaugh’s past writing, quoting his 1989 Yale Law Journal article arguing that relying solely on prosecutors’ good faith in jury selection is 'misguided.'
- Confirms that Pitchford’s final merits brief to the Court opens by citing Kavanaugh’s student note on Batson and emphasizes his prior majority opinion for Curtis Flowers against the same prosecutor, Doug Evans.
- Highlights that Black prospective jurors excluded from Pitchford’s jury filed an amicus brief telling the Court it is already 'well acquainted with Evans' from Flowers and asserting he again used race in deciding whom to strike.
- Spells out the specific AEDPA question the justices agreed to decide: whether Mississippi’s top court unreasonably held that Pitchford waived his right to rebut the prosecutor’s race‑neutral explanation for striking a Black juror.
- Quotes U.S. District Judge Michael Mills, a George W. Bush appointee, saying the Flowers ruling was 'at the very least, informative' and should have been considered by Mississippi’s appellate courts in evaluating Pitchford’s Batson claim.
- Details that Terry Pitchford’s lawyers are explicitly framing Justice Brett Kavanaugh as a pivotal vote, opening their final brief by quoting his 1989 Yale Law Journal article on race and jury selection.
- Specifics from Kavanaugh’s student article: he argued that relying solely on prosecutors’ good faith is misguided and endorsed a defense right to be present for, and rebut, prosecutors’ race‑neutral explanations for strikes.
- The article emphasizes that both Flowers and Pitchford were prosecuted by the same Mississippi district attorney, Doug Evans, before the same trial judge, and that Evans used peremptory strikes on four of the five Black prospective jurors in Pitchford’s case, resulting in a jury with only one Black member.
- An amicus brief from Black prospective jurors excluded from Pitchford’s jury tells the Court it is already "well acquainted with Evans" from Flowers and asserts that he again relied on race in deciding whom to strike.
- The piece highlights that, unlike Flowers, Pitchford’s case reaches the Court in a federal habeas posture under AEDPA, and notes that the Supreme Court’s current Republican-appointed majority, including Kavanaugh, has often applied AEDPA narrowly to deny relief.