The Supreme Court split 5-4 Thursday to let a Black Mississippi death row inmate renew his challenge to a conviction built on a jury from which prosecutors struck four of five eligible Black members. Chief Justice John Roberts and Justice Brett Kavanaugh crossed over to join the court's three liberal justices, handing Terry Pitchford a lifeline after nearly two decades at the Mississippi State Penitentiary at Parchman.
Kavanaugh wrote the majority opinion. Roberts, along with Justices Sotomayor, Kagan, and Jackson, signed on. Justices Gorsuch, Thomas, Alito, and Barrett dissented, as the Washington Examiner reported.
The ruling turns on a narrow but important procedural question: whether the trial judge gave Pitchford's lawyers a fair chance to prove that the prosecutor's stated reasons for removing Black jurors were a cover for racial discrimination. The majority said the answer was no, and that the entire jury-selection process had broken down in ways the Constitution does not permit.
In 2004, Pitchford, then eighteen, participated in a robbery that ended with the fatal shooting of Reuben Britt, a grocery store owner in northern Mississippi. Pitchford's accomplice fired the shots, but because that accomplice was under eighteen and therefore ineligible for the death penalty, Pitchford alone faced capital charges.
A jury convicted him and sentenced him to death in 2006. During jury selection, completed in a single day, the Washington Times noted, prosecutors used peremptory strikes to remove four of five eligible Black jurors. The resulting panel included just one Black member, even though the county's population is roughly 40 percent Black.
The prosecutor who ran that selection was Doug Evans, a name that should ring a bell. In 2019, the Supreme Court threw out the conviction of Curtis Flowers, another Evans prosecution, after finding what the justices described as a "relentless, determined effort to rid the jury of Black individuals." The same trial judge, Joseph Loper, presided over both cases.
At the heart of the dispute is the three-step framework from the court's 1986 decision in Batson v. Kentucky. Under Batson, a defendant who suspects racial discrimination in jury strikes must first make a prima facie case. The prosecutor then offers race-neutral reasons for each strike. At the third and final step, the trial court must decide whether those reasons are genuine or pretextual.
Kavanaugh's opinion found that step three never happened. The trial court did not give Pitchford's counsel a meaningful opportunity to rebut the prosecutor's stated reasons, and it never made a finding on whether those reasons were pretextual. As Kavanaugh wrote:
"The trial court did not afford Pitchford's counsel a sufficient opportunity to rebut the prosecutor's proffered race-neutral reasons... and never determined whether the prosecutor's stated reasons were pretextual."
He added a pointed observation about the process itself:
"Whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred."
That language matters. The majority did not accuse the trial judge of bad faith. It said the system failed, and that the failure meant a capital defendant's constitutional claim was never actually decided on its merits.
This is not the first time Kavanaugh has broken with conservative colleagues on death penalty questions. The pattern is worth watching, even if each case turns on its own facts.
Justice Gorsuch, writing for the four dissenters, pushed back on the premise that the prosecutor's strikes demanded further scrutiny. He catalogued the specific reasons Evans offered for each removal:
"One prospective juror... had returned late to court after lunch break and had a history of mental problems. Two had brothers who had been convicted of violent offenses. Another 'had no opinion on the death penalty.'"
The dissent's argument is straightforward: these are the kinds of reasons prosecutors give every day in courtrooms across the country, and they have nothing to do with race. From the dissenters' perspective, the majority was second-guessing a trial judge's real-time management of jury selection, a domain where appellate courts have traditionally shown deference.
The 5th U.S. Circuit Court of Appeals had agreed with that view. After a federal district judge overturned Pitchford's conviction in 2023, finding that prosecutors improperly removed Black jurors, the 5th Circuit reversed, siding with the Mississippi Supreme Court's conclusion that Pitchford's attorneys had failed to properly preserve their objections at trial.
The Supreme Court's Thursday ruling effectively rejects that reasoning and sends the case back to lower courts for reconsideration.
Conservatives should not be reflexively uncomfortable with this outcome. The Batson framework exists because the Constitution prohibits the government from using race to stack a jury. That is not a progressive invention. It is a structural safeguard against state power, the kind of check that originalists and textualists have long defended in other contexts.
The question Kavanaugh's opinion raises is narrow: Did the trial court actually follow its own rules? The majority says it did not. If that finding holds up on remand, the fault lies with the state's failure to run a clean process, not with the defendant for insisting on one.
Jessica Ellsworth, a Hogan Lovells partner who served as Pitchford's pro bono counsel, framed the ruling in those terms, as Newsweek reported:
"The Court made clear that Batson cannot be sidestepped. If a defendant raises a discrimination claim, courts must assess whether the prosecutor's reasons withstand scrutiny."
Her colleague Jo-Ann Tamila Sagar added that the decision "focused on the fact that the trial court never completed the critical third step of the Batson inquiry and never made a determination on pretext."
Joshua Dressler, a professor of law emeritus at Ohio State University, offered a broader assessment. He said the ruling sends a message to trial judges "to treat the Batson ruling, which seeks to guard against racist efforts by some prosecutors to keep Black persons off juries, as a constitutionally important ruling." He noted that "too often trial judges accept the pretextual claims of prosecutors."
That observation cuts in a direction conservatives should take seriously. When trial judges rubber-stamp a prosecutor's stated reasons without genuine inquiry, they do not strengthen the justice system. They weaken it, by creating exactly the kind of procedural vulnerability that defense attorneys can exploit for decades on appeal.
The shadow hanging over this case is the prosecutor himself. Doug Evans was the same district attorney whose jury-selection tactics in the Curtis Flowers case drew a unanimous Supreme Court rebuke in 2019. Breitbart noted that Evans had a documented history of removing Black jurors from panels, a pattern the justices had already addressed once before.
Pitchford's case was tried by Evans in the same courthouse, before the same judge, three years before the Flowers case reached the Supreme Court. The overlap is hard to ignore, even for those who believe the individual strikes in Pitchford's trial may have been defensible on their face.
When a prosecutor accumulates a track record like that, the burden on trial courts to run a rigorous Batson inquiry only grows heavier. Judge Loper's failure to complete step three, whatever the cause, left the state's conviction resting on a procedural foundation that could not hold.
The Supreme Court's handling of death penalty cases has drawn increasing attention in recent terms, with unusual coalitions forming on both sides.
Pitchford, now forty years old, remains on death row at Parchman while the case returns to lower courts. His counsel, Joseph Perkovich, said after the ruling: "Mr. Pitchford is now entitled to a fair trial in the state court."
Whether that trial ever happens, and what it looks like, depends on how Mississippi's courts handle the remand. The state could retry Pitchford, negotiate a plea, or find other grounds to sustain the conviction. None of those outcomes are guaranteed.
The broader implications of the ruling are procedural, not ideological. The majority did not say prosecutors cannot strike jurors who show up late, have relatives with criminal records, or express ambivalence about the death penalty. It said that when a defendant raises a Batson challenge, the trial court must actually finish the inquiry, not skip the final step and call it done.
That is a rule that protects the integrity of convictions as much as it protects defendants. A conviction that survives a full Batson hearing is far harder to overturn on appeal than one built on an incomplete record. Prosecutors and trial judges who cut corners in jury selection are not doing the state any favors. They are planting time bombs in their own cases.
The internal dynamics of the current court continue to produce coalitions that defy easy prediction, and this term's capital cases are no exception.
Roberts and Kavanaugh will take heat from the right for this vote. But the principle at stake, that the government must follow its own rules before it takes a man's life, is not a liberal principle. It is a conservative one. And when the court's composition produces surprising alignments, the question worth asking is not which side a justice landed on, but whether the law required it.
If you want the death penalty to mean something, you have to earn it, at every step, in every courtroom, with every juror. Skip the process, and you hand the defense a winning appeal two decades later. That is not justice. It is just delay.
