Where the trial court did not afford defense counsel an opportunity to rebut the prosecutor’s proffered race-neutral reasons for striking black jurors, thereby failing to conduct the third step of the Batson inquiry, the Mississippi Supreme Court’s conclusion that the defendant waived his opportunity to rebut those reasons was unreasonable.
Pitchford v. Cain, 608 U.S. ____ (2026). In 2004, Terry Pitchford, then 18, and Eric Bullins, then 16, robbed a grocery store in Grenada County, Mississippi. During the robbery, Bullins, who is black, shot and killed the store owner, a white man. Pitchford, who also is black, fired a gun too. His was loaded with rat shot, and it is disputed whether he shot at the store owner or fired his gun into the floor. Bullins reached a plea agreement with the state and received a 20-year sentence. Pitchford was charged with murder and prosecuted capitally.
During jury selection, the prosecutor used peremptory strikes against four of the five black potential jurors. Pitchford’s counsel raised a Batson objection. The trial court asked the prosecutor for race-neutral reasons for striking each juror. The prosecutor stated that one juror had returned 15 minutes late to court, two jurors had brothers convicted of violent offenses, and the fourth, like Pitchford, was young, unmarried, and a father. The trial court declared each of these reasons to be race-neutral without affording defense counsel an opportunity to rebut those reasons as pretextual. Moreover, the trial court did not make any findings regarding whether the reasons were pretextual. Instead, it pivoted immediately to the defendant’s peremptory strikes. At the close of jury selection, defense counsel again sought to raise the Batson issue. The trial court ended the inquiry, telling defense counsel that the objections already had been made, were “‘clear in the record,’” and announcing “‘the Court finds there to be no Batson violation.’” (Slip op. at 3.)
The empaneled jury consisted of 11 white jurors and 1 black juror. (The population of the county was 60 percent white and 40 percent black.) The jury convicted Pitchford of capital murder and sentenced him to death. Pitchford argued on appeal that the prosecutor’s reasons for striking the black prospective jurors were pretextual. The Mississippi Supreme Court concluded that Pitchford had waived that argument by not making it to the trial court.
Pitchford later filed a habeas petition in federal court seeking relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which required him to establish that the state supreme court’s decision involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence. The federal district court determined that Pitchford made that showing, but the United States Court of Appeals for the Fifth Circuit reversed, concluding that the Mississippi Supreme Court’s waiver finding was reasonable. The United States Supreme Court granted certiorari review and, in a five to four opinion authored by Justice Kavanaugh, reversed the judgment of the Fifth Circuit.
The Pitchford Court opened its opinion by reciting the Court’s holding in Batson v. Kentucky, 476 U.S. 79 (1986): The Equal Protection Clause bars prosecutors from exercising peremptory challenges based on race. In Batson and its progeny, the Court has spelled out how a trial court should determine whether a prosecutor has run afoul of this rule. The defendant must first make a prima facie showing that a peremptory strike was based on race (step one). The prosecutor must then provide a race-neutral reason for the challenged strike (step two). Then, defense counsel must be provided an opportunity to rebut the prosecutor’s reason as pretextual, and the trial court must decide whether the race-neutral reason is pretextual in light of all the evidence (step three).
The Pitchford Court agreed with the U.S. District Court below that the trial court erroneously omitted Batson’s third step. The trial court did not afford Pitchford’s counsel a sufficient opportunity to rebut the prosecutor’s proffered race neutral reasons for striking the black jurors and did not determine whether the stated reasons were pretextual. Moreover, the Court held that the Mississippi Supreme Court’s conclusion that Pitchford waived his opportunity to rebut the prosecutor’s proffered race-neutral reasons was unreasonable. The Court noted that Pitchford’s counsel raised the Batson issue again at the close of jury selection and the trial court explicitly assured trial counsel that the Batson objection was preserved.
The Court repeated its admonishment from Flowers v. Mississippi, 588 U.S. 284 (2019), in which it held that the trial court committed clear error in concluding that the prosecutor’s peremptory strike of a black prospective juror was not motivated in substantial part by discriminatory intent, again noting that:
“America’s trial judges operate at the front lines of American justice,” and “the job of enforcing Batson rests first and foremost with trial judges.”
(Slip op. at 6.)
Notably, the prosecutor and trial judge in Pitchford were also the prosecutor and trial judge in Flowers. See Amy Howe, Supreme Court sides with death row inmate in challenge to racial discrimination in jury selection, SCOTUSblog (May. 28, 2026, 1:18 PM).
Justice Gorsuch, joined by Justices Thomas, Alito, and Barrett, dissented. The dissent would have concluded that Pitchford failed to satisfy the high bar required to secure federal habeas relief under the AEDPA. The dissent reasoned that neither Mississippi’s preservation rules for Batson claims nor its application of that rule departed from federal precedent. Moreover, it did not view the Mississippi Supreme Court’s waiver holding as resting on an unreasonable reading of the trial record.
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