Pitchford v. Cain

    Issues

    Did the Mississippi Supreme Court unreasonably find that a criminal defendant waived his right to argue that the prosecutor’s asserted race-neutral reasons for exercising peremptory strikes were pretextual?

    Oral argument:
    March 31, 2026
    Court below:
    United States Court of Appeals for the Fifth Circuit

    This case asks the Supreme Court to determine whether it was unreasonable for the Mississippi Supreme Court to find that a defendant waived his arguments that the prosecution’s race-neutral reasons for peremptory strikes were pretextual. Pitchford argues that the state court’s waiver finding violated the right against discriminatory jury selection and ignored his counsel’s attempts to preserve an Equal Protection challenge at trial. The state argues that the waiver finding is a reasonable application of state law, and that courts flexibly interpret how states should implement Batson challenges. The outcome of this case could impact courts’ ability to prevent discrimination in jury selection and courts’ efficiency in handling jury discrimination claims.

    Questions as Framed for the Court by the Parties

    Whether, under the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), the Mississippi Supreme Court unreasonably determined that petitioner waived his right to rebut the prosecutor's asserted race-neutral reasons for exercising peremptory strikes against four black jurors.

    Facts

    In 2004, Terry Pitchford was arrested and charged with felony murder due to his alleged involvement in an armed robbery resulting in the death of a store owner. His trial was held at the Grenada Circuit Court, which sits in a county composed of forty percent Black residents.During his trial, the prosecution used peremptory strikes on four of the five eligible Black members of the venire and three of the thirty-six eligible White members of the venire. The final jury consisted of only one Black juror.

    Under Batson v. Kentucky, a defendant can establish a violation of the Equal Protection Clause if the defendant can show that the prosecution exercised peremptory strikes in a racially discriminatory manner. To do so, a defendant must first establish a prima facie case of intentional racial discrimination, in other words, a case that is adequately supported by evidence when taken at face value. The second step is that the prosecution must provide a race-neutral reason for its peremptory strikes. Finally, the third step is that the state court must decide whether the defendant proved intentional discrimination. Pitchford’s counsel made a Batson claim, so the State offered race-neutral reasons for its four peremptory strikes of Linda Lee, Christopher Tillmon, Patricia Tidwell, and Carlos Ward. Pitchford’s counsel neither objected nor argued that the State’s reasons were pretextual, and the trial court accepted the race-neutral reasons, finding no Batson violation. However, Pitchford’s counsel attempted to reserve her Batson objection, and the trial court assured counsel that the objection was already in the record. The jury ultimately convicted Pitchford and sentenced him to death.

    Pitchford appealed his conviction and sentence to the Mississippi Supreme Court, claiming discrimination based on race in violation of Batson. He argued that the State’s race-neutral reasons were pretextual because the reasons offered for striking four of the five potential Black jurors applied to potential White jurors that the prosecution accepted. However, the Mississippi Supreme Court affirmed the conviction and rejected Pitchford’s Batson challenge without reaching Pitchford’s pretext arguments, stating that Pitchford had waived the chance to rebut the State’s race-neutral reasons at trial.

    After exhausting the remedies available to him in state court, Pitchford sought review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Pursuant to AEDPA, federal courts can only grant an application for a writ of habeas corpus, which is used to determine whether a person’s detention is lawful to someone in custody as a result of state court proceedings, if one of two things is true. First, habeas is available if the state court made a decision “contrary to” or “involved an unreasonable application of . . . clearly established federal law.” Second, habeas is available if the state court decision “was based on an unreasonable determination of the facts” that the court had in front of it.

    Pitchford petitioned the federal district court of the Northern District of Mississippi for a writ of habeas corpus, under both 28 U.S.C. § 2254(d)(1) and § 2254(d)(2) of the AEDPA. The district court granted Pitchford a writ of habeas corpus under § 2254(d) because it found that the trial court violated Batson by failing to conduct the third step inquiry required by Batson. It also held that the Mississippi Supreme Court erred in finding a waiver because Pitchford’s counsel had objected to the prosecutor’s stated reasons. Burl Cain, the Commissioner for the Mississippi Department of Corrections, and Lynn Fitch, Attorney General of Mississippi, on behalf of Mississippi (“Cain”) appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit agreed with Cain and reversed, holding that the Mississippi Supreme Court’s acceptance of the State’s race-neutral reasons was an implicit finding that the reasons were not pretextual and that it was reasonable for the court to have found that Pitchford waived his pretext argument by not offering it during jury selection.

    On May 28, 2025, Pitchford petitioned the Supreme Court of the United States to hear this case. The Supreme Court granted certiorari on December 15, 2025.

    Analysis

    BATSON VIOLATION

    Pitchford argues that the state courts violated Batson. According to Pitchford, under the third step of the Batson test, each of the four peremptory strikes of Black venire panelists suggests that the prosecution’s race-neutral reasons were pretextual. Pitchford contends that while Linda Lee was struck because she allegedly had mental health problems and was fifteen minutes late to the courtroom, the prosecution provided no evidence to corroborate the health claims and did not strike other potential jurors who were late. Additionally, while the prosecution stated that Christopher Tillmon was struck because his brother had been convicted of a similar crime, Pitchford argues that the prosecution did not strike other White venire members with felony convictions. Moreover, the prosecution allegedly struck Patricia Tidwell because she was a “known drug user,” but Pitchford argues that this claim was unsubstantiated. Finally, Pitchford submits that the prosecution allegedly struck Carlos Ward “because of his demographic profile, his opinion on the death penalty, and his alleged speeding violations,” but that none of these factors distinguished him from several other White venire members who were permitted to serve on the jury. Furthermore, Pitchford contends that under Batson, the trial court must determine whether the reasons were pretextual “on the basis of all relevant circumstances.” In particular, Pitchford points out that part of that analysis requires considering a prosecutor’s history of discriminatory peremptory strikes. Here, the prosecutor Doug Evans was the same prosecutor whom the Court found to have violated Batson in Flowers v. Mississippi in 2019, concluding that he engaged in “a blatant pattern of striking [B]lack prospective jurors.”

    In response, Cain maintains that the merits of Pitchford’s Batson claim are not properly before the Court because it limited the question presented as to whether the Mississippi Supreme Court’s waiver ruling met the standards in the AEDPA and thus warranted habeas relief. In the alternative, however, Cain argues that the race-neutral reasons were legitimate grounds for exercising peremptory challenges in Pitchford’s case. For Linda Lee, Cain asserts that Batson does not require evidence of the mental health condition that the prosecutor was concerned with, and that she arrived later than any other prospective jurors. Additionally, Cain contends that the prosecution struck Christopher Tillmon because his brother’s offense was similar to Pitchford’s, and that the similarly situated White jurors were convicted of burglary and forgery, not manslaughter. In the case of Patricia Tidwell, Cain maintains that the prosecution struck her not only because her brother was convicted of sexual battery in the same court as Pitchford’s trial, but “according to police officers,” she was a “known drug user,” even if no charges had been brought against her. Finally, according to Cain, the prosecution struck Carlos Ward because a potential juror’s similar race-neutral demographic profile to the petitioner, opinion on the death penalty, and speeding violations are legitimate reasons for a strike.

    FACTUAL REASONABILITY OF THE WAIVER FINDING

    Pitchford argues that the denial of Pitchford’s Batson claims on waiver grounds was based on an “unreasonable determination of facts.” Further, Pitchford contends that the Court should grant habeas relief because “[n]o fair-minded jurist” could find that Pitchford’s counsel intentionally waived her rebuttal of the race-neutral reasons at trial. First, Pitchford argues that his counsel made the Batson challenge multiple times, confirmed that it was in the record, and stated that she wanted to preserve the Batson challenge. Then, Pitchford states that on direct appeal, his counsel once again raised the Batson objection. In light of this, Pitchford suggests that the Mississippi Supreme Court ignored these important facts in its determination that he waived his pretext argument. A waiver requires intentionally abandoning a legal right; however, according to Pitchford, there is no evidence to support such a finding. In fact, Pitchford claims the waiver determination contradicted the trial court’s finding that he preserved his Batson challenge. Moreover, Pitchford contends that it was erroneous to place any additional burden on him beyond establishing a prima facie case, as the court is independently required to consider all relevant circumstances at Batson’s third step. In support, Pitchford points to the practice of appellate courts conducting comparative juror analyses even when those arguments were not raised at the trial level. Therefore, Pitchford concludes that for those two reasons, the Mississippi Supreme Court’s finding that Pitchford waived his pretext argument was an unreasonable determination of the facts warranting habeas relief.

    In response, Cain argues that a reasonable factfinder could have found that Pitchford waived his pretext argument because, under Mississippi law, the burden is on the defendant to offer such an argument in front of the trial court; otherwise, it is considered waived. The Mississippi Supreme Court, in Cain’s view, was not unreasonable to find that Pitchford waived his pretext arguments because Pitchford’s counsel did not object to any of the race-neutral reasons offered by the prosecution. Moreover, Cain asserts that Pitchford’s counsel did not ask the trial judge to further scrutinize the reasons offered by the prosecution. In fact, Cain alleges that Pitchford’s counsel did not attempt at any point to preserve the pretext arguments that Pitchford made on appeal at jury selection. Clarifying Pitchford’s burden of proof, Cain states that showing a reasonable factfinder could disagree with the Mississippi Supreme Court is insufficient; instead, Pitchford must show that there is no reasonable basis to uphold that finding. Further, Cain contends that while the Batson objection was in the record, the pretext arguments were not.

    LEGAL REASONABILITY OF THE WAIVER FINDING

    Pitchford claims that the Mississippi Supreme Court’s interpretation of Batson’s third step unreasonably applied clearly established law by applying a waiver to avoid conducting this step. First, Pitchford argues that the state court wrongfully did not allow a comparative analysis on appeal. Pitchford argues that this conflicts with Snyder v. Louisiana, in which the Supreme Court held a justification was pretextual based on comparisons that were not made in the trial. Additionally, Pitchford relies on Miller-El v. Dretke, which rejected the argument that a defendant’s comparative juror analysis was not properly before the Court merely because it was first presented during habeas proceedings. Second, Pitchford posits that not requiring the trial court to provide Pitchford with an opportunity to present a pretext argument unreasonably applied clearly established precedent. According to Pitchford, under the Court’s precedents, Mississippi was required to provide a forum to consider all three steps of his Batson claim. Furthermore, Pitchford contends that a trial court is obligated to conduct the full three-step Batson analysis, including consideration of all relevant circumstances. Instead, Pitchford alleges that the trial court ended the Batson analysis after step two.

    In response, Cain contends that the Mississippi Supreme Court’s waiver finding was neither an “unreasonable application of” clearly established federal law nor contrary to Supreme Court precedent, because it simply applied Mississippi law requiring defendants to raise pretext arguments at trial.Cain further argues that this approach is consistent with Supreme Court precedent, as the Court has never held that Batson requires appellate courts to consider arguments that a defendant could have raised before the trial judge but failed to present. Moreover, Cain asserts that the waiver finding was not an unreasonable application of clearly established federal law because the state court merely applied Batson and affirmed the trial judge’s ruling that Pitchford was not able to show intentional discrimination. Cain emphasizes that the Supreme Court has not provided any clear instructions as to how to implement Batson. Thus, Cain suggests that there is leeway for different procedural rules to develop regarding how to apply Batson.

    Discussion

    RACIAL DISCRIMINATION

    The NAACP Legal Defense & Educational Fund, Inc. (“NAACP”), in support of Pitchford, argues that Batson’s protections against racial discrimination in jury selection must be reaffirmed and reinforced. The NAACP contends that when juries only have White members, they punish Black defendants more severely and are more likely to sentence Black defendants to death. Citing studies involving juror selection from death penalty cases in South Carolina and North Carolina, the ACLU and others (“ACLU”) submit that racial discrimination has persisted despite the Supreme Court’s caselaw aimed at preventing and curing it. The ACLU also cites research and argues that racially diverse juries are better able to provide a fair and impartial decision when rendering a verdict because they deliberate for more time and can weigh more information in their considerations.

    Alabama and nineteen other states (“Alabama et al.”), in support of Cain, argue that trial judges are already well-suited to root out racial discrimination using the current Batson framework. Alabama et al. note that a Batson challenge already requires prosecutors to provide the court with a race-neutral reason for eliminating a juror. Alabama et al. assert that this is the “best evidence” of a prosecutor’s intent, which is more evidence of intent than the courts are given in other areas of the law. Alabama et al. claim that trial judges are equipped to detect discrimination because they can make credibility decisions when assessing the prosecutor’s reason for striking. Alabama et al. highlight that trial judges are present with prosecutors when they provide a reason for striking. Thus, because of their presence, Alabama et al. claim that judges can better determine whether a prosecutor is racially discriminating because they can observe the attorney’s facial expressions and listen to the tone of their speech.

    EFFICIENCY

    The ACLU, in support of Pitchford, argues that, from an efficiency perspective, the discrimination determination is confined to an unduly limited period of time for prosecutors to properly prepare their third-step Batson rebuttal. The ACLU asserts that, because defendants can only contest the prosecutor’s neutral reasons in the narrow space of time between the prosecutor stating those reasons and the judge’s determination, this creates an unrealistic and unreasonable limitation on the defense’s ability to respond given the volume of material involved in jury selection. The ACLU notes that jury selection often involves hundreds of pages of documents, and that identifying discrimination may also require examining the prosecutor’s prior jury selections. As a result, limiting defendants to such a constrained timeframe increases the likelihood that relevant evidence of discrimination will be overlooked at trial, thereby necessitating appellate review. The ACLU argues that this dynamic is inefficient because it shifts the burden of resolving discrimination claims to appellate courts, leading to duplicative proceedings and avoidable delays that could have been prevented through fuller consideration at the trial stage.

    The United States of America (the “government”), in support of Cain, contends that allowing Pitchford to raise his claims at the appellate level and not the trial level would make the criminal justice system less efficient. The government asserts that rules prohibiting untimely claims, like the one prohibiting Pitchford’s argument to the Mississippi Supreme Court, benefit the system by promoting efficient appellate review. By requiring a defendant to make an explicit record in the trial court, the government submits that forfeiture rules ensure that defendants do not raise claims not raised below. The government argues that forfeiture ensures that the defendant does not intentionally remain silent during their trial, only raising a claim if the judgment is not in their favor. Further, the government contends that avoiding these post-judgment arguments helps the courts avoid unnecessary delays in having to go back and rehear the trial or reexamine witnesses.  

    Conclusion

    Authors

    Written by:    Leonardo Costa Lins Villa-Forte and Keaton J. Klaus

    Edited by:      Abigail Breneisen

    Additional Resources