Left: Associate Justice Clarence Thomas sits during a group photo at the Supreme Court in Washington, Friday, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool). Right: Associate Justice Brett Kavanaugh stands during a group photo at the Supreme Court in Washington, on April 23, 2021. (Erin Schaff/The New York Times via AP, Pool).
The U.S. Supreme Court last week vacated a capital murder conviction after the same prosecutor committed the same misconduct in another capital murder conviction also decided by the court. In the 2019 case of Flowers v. Mississippi, decided seven years ago, in reversing a capital murder conviction, the court described the conduct of the Mississippi prosecutor, Doug Evans, as "extraordinary" and "blatant" and evinced a "relentless effort to rid the jury of black individuals."
In the case of Pitchford v. Cain, decided last month, the court once again threw out a murder conviction and death sentence because of Evans' identical unconstitutional conduct.
Justice Brett Kavanaugh wrote the opinions in both cases. His opinion in Flowers described Evans' openly racist campaign over six separate jury trials, spanning 20 years, to send Curtis Flowers to the death chamber. Evans struck from juries across the six trials 41 of 42 black jurors; he kept one black juror in the last trial to protect himself from a charge of racial discrimination, or, as Kavanaugh noted, "to obscure an otherwise consistent pattern of opposition to seating black jurors." As the Mississippi state court described one of Evans' prosecutions: "The instant case presents us with as strong a case of racial discrimination as we have ever seen."
Evans' practice was to support his jury strikes of Black persons by misrepresenting the record and falsifying the facts. His "dramatically disparate" questions to Black and white prospective jurors were so "stark," Kavanaugh observed, as to be almost comical.
Evans' conduct in the Pitchford trial fit the pattern; his reasons for removing Black jurors, he claimed, were "race neutral." But he kept white persons on the jury for exactly the same reasons he struck the Black jurors.
But the Pitchford case was different in one significant respect, which probably accounted for the closer division in the court. In Flowers, the court was almost unanimous; Justice Clarence Thomas dissented, standing up for Evans and accusing the court of taking the case "to boost its self-esteem" and "because the case has received a fair amount of media attention." Thomas, in his 42-page dissent in Flowers, argued that Evans gave "race neutral" reasons for his removal of Black jurors. Indeed, Thomas repeated 27 times that Evans gave race-neutral reasons.
But, of course, anyone remotely familiar with the 1986 landmark case of Batson v. Kentucky knows that when prosecutors strike jurors because of their race they always give "race-neutral" reasons to defend their strikes. Does Thomas actually believe that a prosecutor would stand up in court and proclaim: "I removed that juror because she was Black"?
The Pitchford case was trickier, not because of Evans' misconduct, but because of the actions of Pitchford's counsel; he did not preserve the record as well as he could have done. He did not make explicit the proper argument required under Batson. Although he argued that Evans violated Batson, he did not specifically say that Evans' argument for striking Black jurors was pretextual. And so, wrote the Mississippi Supreme Court, Pitchford's lawyer "waived" the Batson claim that the prosecutor engaged in racially discriminatory conduct, and thus, because of his lawyer's waiver, Pitchford should be executed.
Kavanaugh, in his opinion for four other justices — John Roberts, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — reviewed the colloquy at trial under the three-step Batson framework. Pitchford's counsel properly raised the Batson objection and made a prima facie showing that Evans' removal of four Black jurors was based on their race — that was the first step. Second, the trial court then asked Evans to give race-neutral reasons for his strikes, which Evans did. But although the record is a bit murky as to the third step, it appears that the trial court may not have afforded defense counsel a sufficient opportunity to rebut Evans' race-neutral reasons as pretextual. Nor did the judge make any findings whether the prosecutor's race-neutral reasons were pretextual. Indeed, at the close of jury selection, when Pitchford's counsel attempted to raise the Batson claim again, the judge cut him off, saying he had "already made those objections."
The jury convicted Pitchford and sentenced him to die.
The Mississippi Supreme Court on appeal affirmed the judgment, finding that Pitchford's counsel "waived" his Batson objection by not explicitly stating that Evans' purported race-neutral reasons were pretextual. Pitchford then filed a habeas corpus petition, but under habeas corpus jurisprudence, if a state court's determination is not unreasonable, the petitioner loses.
And for anyone familiar with death penalty litigation, if the defense lawyer makes a procedural error, the client may pay with his life.
The Supreme Court found that the Mississippi Supreme Court unreasonably applied Batson and unreasonably determined that Pitchford's counsel waived his objection to Evans' strikes as pretextual. As the majority found, "the trial court never conducted the essential third step of the Batson inquiry." When defense counsel tried to raise as pretextual the prosecutor's reasons for his strikes, "the trial court twice cut off defense counsel," stating that "I think you already made those [objections] and they are clear in the record." In granting the writ of habeas corpus, the federal district judge found that "perhaps Pitchford's counsel should have been more assertive," but there was no waiver by counsel. The Fifth U.S. Circuit Court of Appeals, probably the most conservative circuit in the country, reversed the district court and reinstated the judgment.
Justice Neil Gorsuch dissented, joined by Justices Samuel Alito, Amy Coney Barrett, and Thomas. The dissent argued that Pitchford's counsel could have made a pretext argument but never did — he merely made the statistical argument that Batson was violated by the prosecutor's race-based strikes, and therefore the state court's determination that counsel waived the argument was not unreasonable. Nor, the dissenters argued, is there any basis in the record that defense counsel was "muzzled," or that the trial judge prevented counsel from being more assertive and making a more adequate record.
It is gratifying that a majority of the Supreme Court believes that racism still exists in America, at least in the criminal justice system if not in the racial gerrymandering of election districts.
It is also gratifying that a majority of the Supreme Court is hesitant to allow a man to be executed because his lawyer may have failed to adequately preserve the record.
This is an opinion piece. The views expressed in this article are those of just the author.
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