Hello, this is Jeff Barnum reading the Supreme Court syllabus in Pitchford vs. Kane, surtiory to the United States Court of Appeals for the Fifth Circuit. Argued March 31, 2026, decided May 28, 2026. In 2004, two black teenagers, Terry Pitchford and Eric Bullins, robbed a grocery store near Granada, Mississippi. During the robbery, Bullins shot and killed the white store owner. Bullins reached a plea agreement and received a 20-year sentence for the homicide. The state charged Pitchford with capital murder and sought the death penalty. During the jury selection at Pitchford's trial, the prosecutor used peremptory strikes against four of the five black potential jurors. As this court held in Batson v. Kentucky 476 U.S. 79, a Supreme Court case from 1986, the Equal Protection Clause bars prosecutors from exercising peremptory challenges based on race. In Batson and subsequent cases, the court has spelled out a three-step process for a trial court to determine whether a prosecutor employed a peremptory challenge based on race. Here, Pitchford's counsel raised an objection under Batson and made a prima facie showing that the strikes of the four black jurors were based on race, step one. The trial court asked the prosecutor for race neutral reasons for each strike, and the prosecutor offered reasons, step two. The trial court declared the prosecutor's stated reasons to be race neutral, but the trial court did not afford defense counsel an opportunity to rebut the prosecutor's race neutral reasons as pretextual, step three, nor did it make any findings regarding whether the prosecutor's stated reasons were pretextual. At the close of jury selection, defense counsel sought to raise the Batson issue again, but the trial court twice cut off defense counsel. The impaneled journey, consisting of eleven white jurors and one black juror, convicted Pitchford of capital murder and sentenced him to death. On direct appeal, the Mississippi Supreme Court concluded that Pitchford had waived his Batson objection by not arguing to the trial court that the prosecutor's proffered explanations were pretextual. Pitchford later filed a habeas corpus petition in U.S. District Court, applying the applicable standard to obtain federal habeas relief under the Anti-Terrorism and Effective Death Penalty Act of 1996. The District Court concluded that the Mississippi Supreme Court had unreasonably applied Batson and had unreasonably determined that Pitchford waived his Batson objection. The District Court explained that no state court had conducted the full three-step Batson inquiry, and that the trial court had thwarted the attempt by Pitchford's counsel to argue pretext. The Fifth Circuit reversed the district court, concluding that the Mississippi Supreme Court's waiver finding was reasonable. Held, the Mississippi Supreme Court unreasonably applied the clearly established Batson precedents and unreasonably determined that Pitchford waived his opportunity to rebut the prosecutor's asserted race-neutral reasons for the peremptory strikes of four black prospective jurors. The job of enforcing Batson rests first and foremost with trial judges. The bedrock principle that a party ordinarily must raise an objection in the trial court in order to preserve the issue for appeal applies in the Bats context. But here, the Mississippi trial court erroneously omitted Batson's third step. The trial court did not afford Pitchford's counsel a sufficient opportunity to rebut the prosecutor's proffered race neutral reasons for striking the four black jurors and never determined whether the prosecutor's stated reasons were pretextual. Pitchford's counsel did not waive the Batson argument. As the U.S. District Court explained, Pitchford did object to the explanations provided when he raised the issue again. The Mississippi Trial Court explicitly assured Pitchford's counsel that the Batson objection was preserved, stating, I think you have already made those, and they are clear in the record. Especially given that specific assurance by the trial court, it was unreasonable for the Mississippi Supreme Court to conclude that Pitchford waived the Batson argument. The state's argument that Pitchford preserved his Batsford objection, but nonetheless somehow waived his Batson pretext argument does not make much sense and is not a reasonable reading of this record. At that key point in the jury selection process, after the prosecutor had asserted facially race-neutral reasons for the peremptory strikes, the Batson objection was a Batson pretext argument. Defense counsel's rebuttal necessarily would include a pretext argument, specifically that similarly situated white jurors were not challenged by the prosecutor. If allowed to continue, Pitchford could have argued that the prosecutor did not challenge white jurors similarly situated to the challenge black jurors, which is precisely what Pitchford's post-trial motion later did argue. In this case, the ordinary trial court procedure for resolving Batson claims at step three never occurred, notwithstanding the repeated efforts of Pitchford's counsel to pursue and preserve the Batson objection. The Anti-Terrorism and Effective Death Penalty Act standard for reviewing claims on federal habeas is deferential to the state court, but deference does not mean abdication, and deference does not, by definition, preclude relief. In light of the entire record in this case, the court agrees with the U.S. District Court that the Mississippi Supreme Court unreasonably applied the clearly established Batson precedents and unreasonably determined that Pitchford waived his opportunity to rebut the prosecutor's asserted race neutral reasons for the peremptory strikes of four prospective black jurors. Reversed and remanded. Justice Kavanaugh delivered the opinion of the court, in which Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson joined. Justice Korsich filed a dissenting opinion in which Justices Thomas Alito and Barrett joined. Thank you for listening. Please help us by rating and reviewing this podcast wherever you get your podcasts, and make sure you subscribe so you can get all of the OT twenty five decisions, especially those coming down in the busy month of June, automatically delivered to your device. 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