Batson Relief for Another Mississippi Prisoner Prosecuted by Doug Evans

On December 12, 2023 U.S. District Judge Michael P. Mills over­turned Terry Pitchford’s death sen­tence and ordered Mississippi to retry him in 6 months or release him from cus­tody. Judge Mills found that the orig­i­nal tri­al judge failed to allow the defense to prop­er­ly chal­lenge the exclu­sion of Black jurors by now-retired District Attorney Doug Evans, the same pros­e­cu­tor who pros­e­cut­ed Curtis Flowers. ​“This court can­not ignore the notion that Pitchford was seem­ing­ly giv­en no chance to rebut the state’s expla­na­tions and prove pur­pose­ful dis­crim­i­na­tion,” Judge Mills wrote.

Mr. Pitchford was the youngest pris­on­er on Mississippi’s death row when he was sen­tenced to death for killing gro­cery store own­er Reuben Britt at just 18 years old. At his tri­al, a jury pool of 126 peo­ple was ini­tial­ly sum­moned (40 Black, 84 white, one Hispanic, and one unknown). The tri­al judge first dis­missed jurors for statu­to­ry caus­es and oth­er rea­sons unre­lat­ed to the case, leav­ing 96 poten­tial jurors (35 Black and 61 white). Following voir dire, the judge dis­missed anoth­er 52 jurors for cause, includ­ing 30 Black jurors for their views on the death penal­ty, result­ing in a pool of 41 poten­tial jurors (36 white and five Black). The State used sev­en pre­emp­to­ry strikes and exclud­ed four Black jurors for rea­sons deemed ​“race-neu­tral” by the tri­al judge, who didn’t allow the defense to chal­lenge any of the claims. 

Batson v. Kentucky (1986) held that it is uncon­sti­tu­tion­al to exclude jurors based on their race. A defen­dant who wish­es to chal­lenge the prosecution’s use of peremp­to­ry strikes to exclude Black jurors may object and require the pros­e­cu­tion to state a race-neu­tral rea­son for the strikes. The defense then must have an oppor­tu­ni­ty to rebut the rea­son and prove inten­tion­al dis­crim­i­na­tion. In Mr. Pitchford’s case, the tri­al court denied the defense that opportunity. 

In his order, Judge Mills said his find­ing was influ­enced by District Attorney Evans’ his­to­ry of exclud­ing Black jurors. In Curtis Flowers’ case, Evans pros­e­cut­ed Mr. Flowers six times and ille­gal­ly exclud­ed Black jurors in sev­er­al of those pro­ceed­ings. Mr. Flowers’ con­vic­tion was over­turned by the U.S. Supreme Court in 2019. In Flowers v. Mississippi, Justice Brett Kavanaugh wrote “[t]he State’s relent­less, deter­mined effort to rid the jury of black indi­vid­u­als strong­ly sug­gests that the State want­ed to try Flowers before a jury with as few black jurors as pos­si­ble, and ide­al­ly before an all-white jury.” In con­sid­er­ing Mr. Pitchford’s appeal, Judge Mills found that the Mississippi Supreme Court should have tak­en this his­to­ry into con­sid­er­a­tion, writ­ing ​“The court mere­ly believes that it should have been includ­ed in a ​‘total­i­ty of the cir­cum­stances’ analy­sis of the issue.”