Terry Pitchford was convicted and sentenced to death in connection with a 2006 robbery in which, according to the state's own case, his accomplice — not Pitchford — killed the shopkeeper. Pitchford was 17 at the time. His capital jury was selected after the district attorney struck four Black prospective jurors in succession. Petitioner's counsel argued that the trial judge ran through the prosecutor's race-neutral explanations at step two in rapid succession — finding each one race-neutral in turn without pausing — then immediately directed defense counsel to begin exercising her own strikes, leaving no clear opportunity to argue pretext at step three.
Petitioner's counsel Joseph J. Perkovich told the Court that the trial judge's equation of race-neutral with no Batson violation reflected a fundamental misunderstanding of the three-step framework, and that the judge's duty to make a credibility determination at step three exists independently of whatever the defense presses. He pointed to the transcript showing that when defense counsel sought to be heard as the venire was being dismissed, the judge told her three times that her objection was already clear in the record, then moved on to other issues. Perkovich also noted that the same district attorney had been the subject of two Mississippi Supreme Court capital reversals, published in 2003 and 2000, which held that the prosecutor had fabricated prior statements to impeach four witnesses who were Black and, in closing argument, espoused 14 discrete lies about the record.
Mississippi Solicitor General Scott G. Stewart countered that the Mississippi Supreme Court did not hold that the Batson objection itself was waived — only that the specific pretext arguments, including comparative juror analysis, were waived because defense counsel never presented them to the trial court. He pointed to statements Petitioner made years earlier in state post-conviction proceedings, in which Petitioner declared that he had failed to "properly challenge, litigate, and preserve" his pretext arguments and had "made no attempt to rebut or otherwise offer argument or evidence" on pretext. Stewart argued that on AEDPA review, the question is not whether the record could be read to favor Pitchford, but whether the Mississippi Supreme Court's factual determination was objectively unreasonable — and that it was not.
The argument exposed a sharp divide among the justices. Justice Kagan pressed Stewart on whether the distinction between preserving a claim and preserving particular arguments was meaningful when defense counsel had objected three times after the prosecutor finished giving race-neutral reasons, and the court each time said the objection was in the record. Justice Kagan observed that after the prosecutor has given all his race-neutral reasons and counsel is still objecting, there is no other way to read the context of that colloquy than that she is objecting to the ultimate finding — that the race-neutral reasons were not credible or were pretextual. Justice Kavanaugh acknowledged that defense counsel could have been more assertive but noted that the federal habeas district court — Judge Mills, a former Mississippi Supreme Court justice — had read the record entirely differently and concluded that no state court had conducted a full three-step Batson inquiry, describing the trial court as seemingly eager to proceed to the case itself and calling its actions error nonetheless. Justice Kavanaugh also pressed Stewart to concede that finding race-neutral reasons is not the end of the Batson analysis, which Stewart ultimately did.
Justice Sotomayor walked through the transcript in detail, noting that after each race-neutral reason the prosecutor immediately moved to the next juror with no pause, leaving no opening for defense counsel to respond, and that the judge never said anything indicating he was conducting a step-three analysis. Justice Jackson framed the court's duty as requiring an affirmative resolution of the Batson objection on the basis of all evidence presented after all steps — and suggested the case might warrant a short opinion: Pitchford's counsel made a Batson objection and reraised it multiple times; each time the trial judge reassured her that it was preserved; the Mississippi Supreme Court nonetheless held it was waived; that is unreasonable. Justice Alito, by contrast, expressed skepticism that defense counsel had done enough, describing her as the most timid and reticent defense counsel he had encountered and saying any competent defense attorney he knew would have spoken up and argued pretext after each race-neutral proffer.
Emily M. Ferguson, arguing for the United States as amicus supporting Mississippi, contended that requiring parties to preserve pretext arguments at trial serves Batson's purposes by ensuring factual disputes are aired before the jury is sworn. She argued that the trial court's statement that all the reasons were race-neutral was sufficient to constitute an implicit step-three credibility finding under the Court's decision in Purkett. Justice Jackson pushed back, noting that collapsing step two and step three is precisely what Batson prohibits. On remedy, Stewart told the Court that if it held there was an unreasonable determination on the waiver issue, the appropriate path would be to send the case back down the federal chain, with a writ conditioned on the Mississippi courts conducting the missing step-three analysis — analogizing the situation to habeas relief granted on voluntariness of a confession, where a retrial is not necessarily required.