The U.S. Supreme Court seemed split while hearing oral arguments Tuesday, April 2, in Pitchford v. Cain, a case centered on whether a Mississippi trial court failed to properly evaluate claims of racial discrimination during jury selection.
During the jury selection of the trial of Terry Pitchford, an 18-year-old Black man accused of murdering a local convenience store clerk, the district attorney for Mississippi’s 5th Circuit Court District struck four Black jurors. This decision left 11 white jurors and one Black juror to hear this case.
Joseph J. Perkovich, representing petitioner Terry Pitchford, argued that the trial court failed to complete the third step of the Batson challenge after the prosecution struck four Black prospective jurors in succession.
The Batson challenge is a three-step legal process during jury selection that argues the opposing party is using peremptory strikes to exclude potential jurors based on race, sex or ethnicity.
According to Perkovich, the court addressed only whether the prosecutor’s reasons were race-neutral but failed to determine whether they were pretextual.
Perkovich said that failure ultimately left a flawed jury selection process, “which in turn condemned an 18-year-old whose accomplice, according to the state’s case, killed the shopkeeper in this botched robbery.”
Justice Clarence Thomas opened questioning by asking whether trial counsel had argued that the prosecution’s reasoning was pretextual and why an affidavit later indicated those objections were not raised.
Chief Justice John Roberts pointed to possible confusion in the record, referencing defense counsel’s statement that “at some point” she would reserve her Batson objection. He noted that the trial court repeatedly said the objections were already preserved.
Justice Sonia Sotomayor emphasized that the defense later raised pretext arguments in post-trial motions and suggested there was little opportunity to make a record before the jury was empaneled.
Justice Amy Coney Barrett pressed Perkovich, saying, “If you could tell me what you think the judge should have done, because she raises the objection [and] the prosecutor offers a race-neutral reason.”
Barrett questioned whether the judge had an obligation to pause and ask if there was anything further to show pretext, or whether “the defense attorney had the obligation … to speak up, but didn’t.”
Perkovich argued that the court had its own responsibility to complete the third step of Batson, regardless of defense counsel’s actions.
Justice Samuel Alito criticized the defense counsel’s lack of response, saying, “Any competent defense attorney that I know would have spoken up … and say, ‘Your Honor, that’s a pretext.’” He added that the situation “shouldn’t be a model for what happens in future cases,” though he acknowledged the trial judge also mishandled the process.
Justice Neil Gorsuch focused on whether the Mississippi Supreme Court reasonably determined that the defense waived its argument, noting the absence of the word “pretext” in the trial transcript.
Perkovich pushed back, arguing that “the cases are quite clear” that a court still has a duty to evaluate discrimination, even without explicit argument.
Justice Ketanji Brown Jackson reinforced that point, saying the court must consider “the totality of the circumstances” and that the defense’s silence “is not the sum total of the court’s obligation to rule on the Batson objection.”
The justices also discussed the Batson framework, which requires a prima facie showing of discrimination, a race-neutral explanation from the prosecution and a final determination by the court on whether the explanation is pretextual.
Scott G. Stewart, Mississippi’s solicitor general, argued on behalf of the respondents, calling the case “extraordinary” and claiming the petitioner had shifted his narrative over time.
“In short, petitioner once declared that the facts are X,” Stewart said. “He now declares that it is objectively unreasonable to find that the facts are X. That is extraordinary.”
Stewart maintained that the trial court made a final ruling of no discrimination and argued that the defense waived its claims under Mississippi law.
Jackson challenged that argument, noting that defense counsel attempted multiple times to raise objections but was interrupted. Justice Brett Kavanaugh supported that view, saying, “She’s trying … to make the objections, and the court says you already made those.”
Justice Elena Kagan emphasized that the case hinges on procedure, not substance.
“The question before us is whether the state supreme court was right when it said she waived her argument,” she said.
As questioning continued, Jackson pushed Stewart on whether a pretext argument is strictly necessary.
“What is the significance of her argument related to pretext?” she asked. “Is it so necessary that without it, the court is relieved of any obligation … or is it not necessary?”
Stewart maintained that the court gave defense counsel ample opportunity to speak. “The petitioner can’t be granted relief,” he added. “The record has to compel a finding that the trial judge failed on some factual matter, and it just cannot possibly compel that finding.”
Sotomayor later raised the issue of plain error review, asking whether appellate courts must still correct clear mistakes.
“Plain error is required by the Rules of Federal Procedure,” she said. “If an objection has not been preserved, the court has to determine whether the error was harmless.”
Kagan noted she saw little ambiguity in the transcript, while Kavanaugh stressed the stakes of the case, pointing out that it is a death penalty case involving a defendant who was 17 at the time and “was not the shooter.”
Emily M. Ferguson, representing the United States as amicus curiae, argued in support of the respondents. She said the Mississippi Supreme Court did not unreasonably apply federal law and that the defense failed to preserve its pretext argument.
Ferguson also suggested that the trial court’s actions still satisfied Batson’s third step, even without explicit language. “We think that’s very similar to what happened here,” she said, noting that courts do not always explicitly state credibility findings.
In response to questions from the justices, Ferguson added that the government’s interest in the case is “in defending the right of courts of appeals to exercise their discretion.”
After a brief rebuttal from Perkovich, Chief Justice Roberts submitted the case. A decision for this case is expected at the end of the term, late June or early July.
Taylor Swinton is a reporter and editor for HUNewsService.com.
