A divided Supreme Court on Thursday sided with a Black death row inmate from Mississippi who accused the white prosecutor in his case of intentionally and illegally striking potential Black jurors from the panel that heard his case.
Terry Pitchford was convicted in 2006 for his role in the murder of a shopkeeper by a 12-member jury that included only one Black member. At the time, the county where his trial took place was 40 percent Black.
In its 5-to-4 decision, the Supreme Court said Mr. Pitchford’s lawyer should have had an opportunity to challenge the prosecutor’s reasons for striking all but one potential Black juror, consistent with a 40-year-old landmark precedent barring race discrimination in jury selection. The decision means that Mr. Pitchford, 40, who has served on death row for more than two decades, is entitled to a new trial, his attorney said.
The dispute in Mr. Pitchford’s case involved the same prosecutor whose jury-selection practices were condemned by the Supreme Court in a separate decision in 2019 that drew considerable public attention.
In that case, the prosecutor Doug Evans spent decades trying to convict Curtis Flowers, a Black man, of the 1996 murders of four people inside a furniture store. During six trials, Mr. Evans repeatedly ensured Black people were excluded from juries. The case was featured on a season-long podcast, as well as in episodes of a documentary series. Mr. Flowers spent 23 years in prison until he was released in 2019 following the court’s decision. Charges against him were dropped the following year.
The question in Mr. Pitchford’s case was whether his lawyer had a meaningful chance to challenge the prosecutor’s stated reasons for striking Black jurors.
In general, prosecutors have leeway to remove a certain number of potential jurors, by issuing challenges that are discretionary and cannot be second-guessed. Forty years ago, the Supreme Court carved out an exception in the case Batson v. Kentucky. Under that ruling, when lawyers are accused of discriminating based on race in jury selection, they must provide a different, race-neutral explanation for their actions.
In recent years, the Supreme Court’s conservative majority has turned away most appeals from death row inmates. But writing for the majority, Justice Brett M. Kavanaugh said the state judge had failed to provide Mr. Pitchford’s lawyer “sufficient opportunity” to dispute the prosecutor’s race-neutral reasons for striking four of five potential Black jurors, and had failed to explore if the prosecutor’s reasons were “pretextual.”
Justice Kavanaugh, who wrote the court’s 2019 decision in Mr. Flowers’s case as well, has had a longstanding interest in race and jury selection. He was joined by Chief Justice John G. Roberts Jr. and the court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Joseph Perkovich, one of Mr. Pitchford’s lawyers, praised the court for recognizing the “extreme failure of the state courts to enforce essential protections under the Constitution.”
In a statement, Megan Byrne, a lawyer at the ACLU’s Capital Punishment Project, said the decision “properly recognizes that potential racial discrimination in jury selection deserves meaningful scrutiny and careful review.”
Mr. Evans, the prosecutor, has retired from the Montgomery County district attorney’s office. The Mississippi attorney general’s office, which defended the conviction, did not respond to a request for comment.
In 2004, Mr. Pitchford, who was 18, robbed a grocery store near Grenada, Miss, with another teenager. His accomplice pleaded guilty to fatally shooting the white shopkeeper, but was spared the death penalty because he was a minor. Mr. Pitchford also fired a gun, although it is disputed whether he shot at the store owner or into the floor, according to the court’s opinion.
During jury selection, the judge asked the prosecutor for his reasons for eliminating four potential Black jurors. The judge accepted as race-neutral the response: One had returned 15 minutes late to court after a lunch break, while two others had brothers convicted of violent offenses. The fourth, like Mr. Pitchford, was young, unmarried and a father.
But the Supreme Court agreed with Mr. Pitchford’s lawyers that his defense attorney had insufficient opportunity to rebut the state’s reasons.
If allowed, Mr. Pitchford “could have argued that the prosecutor did not challenge white jurors similarly situated to the challenged Black jurors,” Justice Kavanaugh wrote. He added that “whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down.”
In dissent, Justice Neil M. Gorsuch said the state judge had acted reasonably at trial.
Mr. Pitchford’s lawyers, he wrote, “did not ask the trial court to compare any seated white juror with any struck Black juror. But, he suggests, that is only because the court cut off his attorneys and didn’t allow them to get the argument out.”
“Nothing in the record indicates a trial court seeking to thwart defense counsel’s ability to represent their client. In fact, the record shows that Mr. Pitchford’s attorneys were more than capable of speaking up when they had something to say,” Justice Gorsuch wrote. He was joined by Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett.
