A Fractured Supreme Court Plucks a Death-Row Defendant From Harm

Rather than allow Pitchford’s lawyers to challenge those strikes, the trial judge simply declared that each of them was race-neutral and moved on. This was implausible, as Pitchford’s lawyers later explained, because the prosecution had “deselected black people from the jury panel who had the same familial, living, social or marital circumstances as whites who were not deselected.” Pitchford’s lawyers tried to object at the end of the process, only to be rejected again by the trial judge, as Kavanaugh summarized:

At the close of jury selection, defense counsel sought to raise the Batson issue again. But the trial court twice cut off defense counsel and ended the inquiry before counsel could try to rebut as pretextual the race-neutral reasons articulated by the prosecution: “I think you already made those, and they are clear in the record. For the reasons previously stated, first the Court finds there to be no—well, all the reasons were race neutral as to members that were struck by the district attorney’s office. And so the, the Court finds there to be no Batson violation.”

One might expect the Mississippi Supreme Court, to which Pitchford turned next, to have ordered a new trial after learning about this flawed jury selection process. But it did not. Instead, the court argued that Pitchford had actually waived his Batson objection on appeal because his lawyer had not argued that the explanations were pretextual during the trial. Since the argument hadn’t been raised then, the court surmised, he could not raise them for the first time now.

Generally speaking, U.S. appeals courts do not review legal questions that weren’t already considered and decided at trial first. Last week, for example, the Supreme Court dismissed a case that it had agreed to hear last year after concluding that the underlying legal question hadn’t been properly considered by the lower courts first. Preserving arguments for appeal is an essential part of the criminal trial process, especially in death penalty cases where the stakes can be existential.