Amicus Curiae Brief — Terry Pitchford, Petitioner v. Burl Cain, Commissioner, Mississippi Department of Corrections, et al.

NO. 24-7351

(CAPITAL CASE)

In the

Supreme Court of the United States

________________

TERRY PITCHFORD,

v.

Petitioner,

BURL CAIN, Commissioner,

Mississippi Department of Corrections;

LYNN FITCH, Attorney General

for the State of Mississippi,

Respondents.

________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

________________

BRIEF OF AMICI CURIAE LINDA LEE,

PATRICIA TIDWELL HUBBARD, AND

CARLOS WARD IN SUPPORT OF

PETITIONER

________________

Paul d’Ambrosio

KING & SPALDING LLP

110 N. Wacker Drive

Chicago, IL 60606

Amy R. Upshaw

Counsel of Record

K. Paige Tenkhoff

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

aupshaw@kslaw.com

Counsel for Amici Curiae

July 3, 2025

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE................................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................ 2

ARGUMENT ............................................................... 6

I.

Prohibiting Racial Discrimination in Jury

Selection Is Central to the Equal Protection

Clause .................................................................. 6

II. To Enforce These Protections, Courts Must

Rigorously

Scrutinize

Peremptory

Challenges, Including Considering Evidence

of a Prior Pattern of Racial Discrimination ..... 14

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Cases

Attala Cnty.,

Miss. Branch of NAACP v. Evans,

2020 WL 5351075(N.D. Miss. Sept. 4, 2020) ........ 21

Attala Cnty.,

Miss. Branch of NAACP v. Evans,

37 F.4th 1038 (5th Cir. 2022) .......................... 21, 22

Avery v. Georgia,

345 U.S. 559 (1953) ................................................ 12

Batson v. Kentucky,

476 U.S. 79 (1986) ............................ 4, 12, 13, 14, 15

Carter v. Jury Comm’n,

396 U.S. 320 (1970) .................................................. 2

Castaneda v. Partida,

430 U.S. 482 (1977) ................................................ 12

Coombs v. Diguglielmo,

616 F.3d 255 (3d Cir. 2010) ................................... 18

Duncan v. Louisiana,

391 U.S. 145 (1968) .............................................. 6, 7

Ex parte Virginia,

100 U.S. 339 (1879) ................................................ 10

Flowers v. Mississippi,

588 U.S. 284 (2019) ........................ 2, 3, 5, 13, 19, 20

Flowers v. Mississippi,

947 So.2d 910 (Miss. 2007) .................................... 19

Hernandez v. Texas,

347 U.S. 475 (1954) ................................................ 12

iii

Hill v. Texas,

316 U.S. 400 (1942) ................................................ 12

Hollins v. Oklahoma,

295 U.S. 394 (1935) ................................................ 12

Miller-El v. Dretke,

545 U.S. 231 (2005) ................................ 5, 15, 16, 18

Neal v. Delaware,

103 U.S. 370 (1880) ................................................ 12

Norris v. Alabama,

294 U.S. 587 (1935) ................................................ 12

Peña-Rodriguez v. Colorado,

580 U.S. 206 (2017) ........................................ 6, 9, 11

Pipkins v. Stewart,

105 F.4th 358 (5th Cir. 2024) ................................ 22

Pitchford v. Mississippi,

45 So.3d 216 (Miss. 2010) ........................................ 3

Powers v. Ohio,

499 U.S. 400 (1991) .......................................... 11, 14

Reynoso v. Hall,

395 F. App’x 344 (9th Cir. 2010) ........................... 18

Riley v. Taylor,

277 F.3d 261 (3d Cir. 2001) ................................... 18

Smith v. United States,

599 U.S. 236 (2023) .................................................. 8

Snyder v. Louisiana,

552 U.S. 472 (2008) ................................................ 18

Strauder v. West Virginia,

100 U.S. 303 (1879) ............................................ 5, 11

iv

Swain v. Alabama,

380 U.S. 202 (1965) ................................................ 13

United States v. Haymond,

588 U.S. 634 (2019) .................................................. 6

United States v. McDaniel,

436 F. App’x 399 (5th Cir. 2011) ........................... 17

United States v. Ongaga,

820 F.3d 152 (5th Cir. 2016)............................ 17, 18

United States v. Perry,

35 F.4th 293 (5th Cir. 2022) .................................. 17

United States v. Thompson,

735 F.3d 291 (5th Cir. 2013).................................. 17

Constitutional Provisions

U.S. Const. art. III ...................................................... 8

U.S. Const. amend. VI ................................................ 8

U.S. Const. amend. XIV ........................................... 10

Miss. Const. art. 14 (1890) ......................................... 9

Statutes

42 U.S.C. § 1983 ....................................................... 22

An Act for the Further Security of

Equal Rights in the District of Columbia,

ch. 3, 16 Stat. 3 (1869) ........................................... 10

Civil Rights (Ku Klux Klan) Act of 1871,

ch. 22, 17 Stat. 13 .................................................. 10

Civil Rights Act of 1875,

ch. 114, 18 Stat. 335 .......................................... 5, 10

v

Other Authorities

Baldus, David C., et al.,

The Use of Peremptory Challenges in

Capital Murder Trials: A Legal and

Empirical Analysis, 3 U. Pa. J. Const. L. 3

(2001) ...................................................................... 14

4 Blackstone, William,

Commentaries on the Laws of England

(Cooley ed. 1899) .................................................. 6, 7

Class Action Complaint,

Attala Cnty., Miss. Branch of the NAACP

v. Evans, No. 4:19-cv-00167 (N.D. Miss.

Nov. 18, 2019), ECF 1 ............................................ 20

Confederate States of America—

Mississippi Secession, Declaration of the

Immediate Causes which Induce and

Justify the Secession of the State of

Mississippi from the Federal Union,

in Yale L. Sch., Avalon Project (2008),

https://avalon.law.yale.edu/19th_century/

csa_missec.asp ......................................................... 9

Craft, Will,

Am. Pub. Media, Peremptory Strikes

in Mississippi’s Fifth Circuit Court

District, APM Reports, available at

https://www.apmreports.org/files/peremptor

y_strike_methodology.pdf ................................ 20, 21

1 de Tocqueville, Alexis,

Democracy in America

(Phillips Bradley ed., 1945) ..................................... 7

The Declaration of Independence (U.S. 1776) ........... 8

vi

Declaration of the Immediate Causes

Which Induce and Justify the Secession

of South Carolina from the Federal Union

(Dec. 24, 1860), in Edward McPherson,

The Political History of the United States

of America During the Great Rebellion

1860–1865 (1972) ..................................................... 9

The Federalist No. 83

(Alexander Hamilton) .............................................. 6

Forman, James, Jr.,

Juries and Race in the Nineteenth Century,

113 Yale L.J. 895 (2004) .................................... 9, 10

Hoag, Alexis,

An Unbroken Thread: African American

Exclusion from Jury Service, Past and

Present, 81 La. L. Rev. 55 (2020)............................. 9

Letter from Earl of Clarendon

to William Pym (Jan. 27, 1766),

in 1 Papers of John Adams

(R. Taylor ed., 1977)................................................. 6

Magna Carta

(British Library trans., Nat’l Archives)

(1215) ........................................................................ 7

Ogletree, Charles J.,

Just Say No!: A Proposal to Eliminate

Racially Discriminatory Uses of Peremptory

Challenges, 31 Am. Crim. L. Rev. 1099

(1994) ...................................................................... 15

Amici curiae Linda Lee, Patricia Tidwell

Hubbard, and Carlos Ward respectfully submit this

brief supporting the Petition for Writ of Certiorari

filed by Terry Pitchford.

INTEREST OF AMICI CURIAE 1

Amici are Black prospective jurors who were

excluded from serving on Petitioner Terry Pitchford’s

jury because of their race. The State claimed to strike

Carlos Ward because he shared too much in common

with Pitchford, including being similar in age,

unmarried, and having a young child. App.26. But

other White potential jurors shared these same raceneutral characteristics, indicating that the real reason

for the strike was Ward’s race. App.26. The State’s

pretext to strike Patricia Tidwell Hubbard was that

she had relatives who had been convicted of crimes—

but so too did other White venire members who were

tendered without challenge. App.25. And the State

struck Linda Lee for having unspecified “mental

problems,” but the State never brought this purported

issue up prior to or during voir dire or ever produced

evidence of that condition. App.24. Far from tailored

strikes addressing particular characteristics, these

peremptory strikes illustrated the prosecutor’s blatant

pattern of striking prospective jurors because of the

color of their skin.

1 Pursuant to Rule 37.6, amici curiae affirm that no counsel for

a party authored this brief in whole or in part and that no person

other than amici curiae and their counsel made a monetary

contribution to its preparation or submission. Counsel of record

for all parties received notice of amici curiae’s intention to file

this brief at least ten days prior to the deadline.

2

The

Court

need

not

accept

amici’s

representations, however, to find that the prosecutor

had a pattern of striking prospective jurors because of

their race. In Flowers v. Mississippi, this Court

determined that this same prosecutor had engaged in

a pattern of striking individuals because of their race

time and time again. See 588 U.S. 284, 304–07 (2019).

Amici have a strong interest in ensuring that the

racial discrimination they experienced is redressed by

a court of law. As this Court made clear in Carter v.

Jury Commission, 396 U.S. 320, 329 (1970), “[p]eople

excluded from juries because of their race are as much

aggrieved as those indicted and tried by juries chosen

under a system of racial exclusion.” Their firsthand

experiences on the receiving end of the prosecutor’s

peremptory strikes fuel their desire to advocate for

fairness both in this case and in the justice system

more broadly. Amici are deeply committed to the belief

that all citizens should be given equal opportunity to

participate in the civic duty of serving on a jury.

Because of their unique experiences of facing racial

discrimination in Pitchford’s trial, they have an

important perspective to offer the Court.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

A jury sentenced Petitioner to death for

participating, as a teenager, in a robbery in which his

accomplice shot and killed a store owner. See App.11.

Doug Evans, the district attorney of the Fifth Circuit

Court District of Mississippi, prosecuted the State’s

case. App.27. This Court is no stranger to Evans. He

is the same prosecutor that prosecuted Curtis Flowers

six times. App.27. In Flowers v. Mississippi, this Court

3

vacated

Flowers’

conviction

because

Evans’

“peremptory strikes in Flowers’ first four trials

strongly support[ed] the conclusion that his use of

peremptory strikes in Flowers’ sixth trial was

motivated in substantial part by discriminatory

intent.” 588 U.S. at 305.

The similarities between this case and Flowers’

sixth trial are striking. Just as in Flowers, in

Pitchford’s case, Evans relied on race in deciding who

to strike from the jury. Evans used his peremptory

strikes to strike four of the five Black venire members

remaining after voir dire, including Linda Lee,

Patricia Tidwell Hubbard, and Carlos Ward. App.16–

20. Pitchford’s attorney, who was also Flowers’

defense counsel, challenged those strikes under

Batson. But after Evans provided the court with

pretextual race-neutral reasons for the strikes, the

court—the same trial judge, in fact, which denied the

Batson objections in Flowers—simply denied the

challenges. App.21–22. The court failed to determine

whether each of the proffered reasons were pretextual,

and it prevented trial counsel from contesting those

reasons. App.21–22.

The jury of thirteen White jurors and one Black

juror convicted Pitchford and sentenced him to death.

App.13. Pitchford appealed the conviction and raised

his Batson challenges once again. But on appeal, the

Mississippi Supreme Court affirmed his conviction

and sentence, finding his Batson challenges waived

before the trial court. See Pitchford v. Mississippi, 45

So.3d 216, 227–28 (Miss. 2010) (en banc); see also id.

at 266 (Graves, J., dissenting) (decrying the

“erroneous proposition that Pitchford somehow

4

waived his Batson objection by not rebutting the

State’s proffered race-neutral reasons”). Pitchford

sought federal habeas corpus relief, raising his Batson

challenges once again. App.13. Following this Court’s

instruction in Miller-El, the district court granted him

relief, explaining that the Mississippi trial court

contravened this Court’s precedent by failing to

consider whether the State’s race-neutral reasons for

the strike were pretextual in light of all relevant

evidence. See App.22–23. The Fifth Circuit reversed,

holding that Batson allows a court to accept the

prosecutor’s race-neutral reasons for the strike at face

value, even if those reasons are clearly belied by the

record. See App.8–9.

This Court should grant certiorari and reverse. At

the core of the Equal Protection Clause is the

assurance that States and state actors will not exclude

individuals from jury service based on the color of

their skin. Preventing racial discrimination in jury

selection is essential to preserving both the principle

of equal justice under law and public confidence that

it is being upheld. This is why this Court, in Batson v.

Kentucky, established a stringent three-step, burdenshifting framework which requires the challenger to

show a prima facie case of discrimination, the State to

respond with allegedly race-neutral reasons, and,

finally, the court to determine whether those reasons

are pretextual. 476 U.S. 79, 96–98 (1986). In

particular, this Court’s precedent mandates, contrary

to the decision below, that evidence of a prosecutor’s

prior history of racial discrimination is critical context

that—in connection with evidence of discrimination

intrinsic to the voir dire proceeding—is sufficient to

provide an “undeniable explanation” that the

5

prosecutor’s proffered reasons for striking Black

jurors are pretext. Miller-El v. Dretke, 545 U.S. 231,

266 (2005); see also Flowers, 588 U.S. at 304–07.

I. The original meaning of the Equal Protection

Clause ensured that juries would be open to

individuals without regard for their race. Civil Rights

Act of 1875, ch. 114, § 4, 18 Stat. 335, 336–37. In 1879,

just eleven years after the Fourteenth Amendment

was ratified, this Court confirmed that the Fourteenth

Amendment guarantees that a State’s jury process

will be free from racial discrimination. See Strauder v.

West Virginia, 100 U.S. 303, 308 (1879). That

constitutional right to a jury free from racial

discrimination extends both to the defendant and to

prospective jurors.

II. Careful scrutiny of peremptory strikes are

necessary to vindicate the Equal Protection Clause.

The Fifth Circuit’s approach—which allows trial

courts to defer to the State’s prosecutorial discretion—

severely weakens this constitutional guarantee.

6

ARGUMENT

I.

Prohibiting Racial Discrimination in Jury

Selection Is Central to the Equal Protection

Clause.

A. As far back as the English common law and

continuing to the American Founding, the right to

trial by jury has been a “fundamental safeguard of

individual liberty.” Peña-Rodriguez v. Colorado, 580

U.S. 206, 210 (2017). In the 18th century, Blackstone

described the jury-trial right in English law as a

“strong . . . barrier” to protect the accused. 4 William

Blackstone, Commentaries on the Laws of England

349–50 (Cooley ed. 1899). “[B]y the time our

Constitution was written, jury trial in criminal cases

had been in existence in England for several centuries

and carried impressive credentials traced by many to

Magna Carta.” Duncan v. Louisiana, 391 U.S. 145, 151

(1968).

The Founding Fathers viewed the jury trial as a

necessary check on arbitrary use of power against

defendants. Alexander Hamilton described the jury as

a protection against “oppressions” and “arbitrary”

charges and convictions. The Federalist No. 83

(Alexander Hamilton). Others described the right to

trial by jury in more extravagant language: it is “‘the

heart and lungs, the mainspring and the center wheel’

of our liberties, without which ‘the body must die; the

watch must run down; the government must become

arbitrary.’” United States v. Haymond, 588 U.S. 634,

640–41 (2019) (quoting Letter from Earl of Clarendon

to William Pym (Jan. 27, 1766), in 1 Papers of John

Adams 169 (R. Taylor ed., 1977)).

7

Juries were considered fundamental both because

they protected individuals from arbitrary government

action and because they gave power to ordinary

citizens. “Fear of unchecked power” gave rise to the

“insistence upon community participation” and “the

common-sense judgment” of the community. Duncan,

391 U.S. at 156. Alexis de Tocqueville lauded the

American juries because they “place[] the real

direction of society in the hands of the governed” and

“invest[] the people . . . with the direction of society.” 1

Alexis de Tocqueville, Democracy in America 282–83

(Phillips Bradley ed., 1945). The Magna Carta

likewise placed power in the hands of a defendant’s

equals. Magna Carta cl. 39 (British Library trans.,

Nat’l Archives) (1215) (“No free man shall be seized or

imprisoned, or stripped of his rights or possessions, or

outlawed or exiled, or deprived of his standing in any

way, nor will we proceed with force against him, or

send others to do so, except by the lawful judgment of

his equals or by the law of the land.”). The protection

of a jury ensured that “the truth of every accusation

. . . should afterwards be confirmed by the unanimous

suffrage of twelve of his equals and neighbours,

indifferently chosen and superior to all suspicion.”

Blackstone, Commentaries, supra, at 349–50

(emphasis added).

The denial of this longstanding right to an

indifferently chosen jury, in part, spurred the

Founders to declare independence from England.

“Prior to the Revolution, Parliament enacted

measures to circumvent local trials before colonial

juries, most notably by authorizing trials in England

for both British soldiers charged with murdering

colonists and colonists accused of treason.” Smith v.

8

United States, 599 U.S. 236, 246–47 (2023). The

Declaration of Independence denounced this practice,

under which colonists were “transport[ed] . . . beyond

Seas to be tried for pretended offences.” See The

Declaration of Independence para. 19 (U.S. 1776); see

also id. para. 18 (listing as a grievance the

“depriv[ation] . . . of the benefits of Trial by jury”).

Underscoring

the

importance

of

giving

a

representative pool of citizens the right to serve on the

jury and oversee prosecutions, the Constitution

protects that right twice. The Sixth Amendment

provides that “the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed.” U.S. Const. amend. VI. And Article III

also requires that juries in criminal trials are drawn

from the place where the defendant is accused of

having committed the crime. U.S. Const. art. III, § 2,

cl. 3 (“such Trial shall be held in the State where the

said Crimes shall have been committed”); see also

Smith, 599 U.S. at 247 (explaining that this right

stemmed from the Founders’ “forceful[] object[ions] to

trials in England before loyalist juries,” which was “an

affront to the existing common law of England and

more especially to the great and inestimable privilege

of being tried by . . . peers of the vicinage” (quotation

marks omitted)).

But for much of the country’s history, juries were

not drawn from the whole of the people in our

democracy. Ohio, South Carolina, Georgia, Virginia,

Tennessee, Mississippi, and West Virginia, to name a

few, restricted jury service to White men, either

explicitly or by limiting jury service to those eligible to

9

vote, which was itself limited to White men. 2 That

restriction had a predictable effect. Without

representative juries, “[a]ll-white juries punished

black defendants particularly harshly, while

simultaneously refusing to punish violence by whites,

including Ku Klux Klan members, against blacks and

Republicans.” Peña-Rodriguez, 580 U.S. at 222

(quoting James Forman, Jr., Juries and Race in the

Nineteenth Century, 113 Yale L.J. 895, 909–10 (2004)).

The desire to maintain a racially divided society and

protect the brutal system of slavery caused several

Southern states to declare secession from the United

States and triggered the Civil War. See, e.g.,

Declaration of the Immediate Causes Which Induce

and Justify the Secession of South Carolina from the

Federal Union (Dec. 24, 1860), in Edward McPherson,

The Political History of the United States of America

During the Great Rebellion 1860–1865, at 15–16

(1972) (citing as a reason for secession the northern

states’ “disregard of their obligation[]” under Article

IV of the Constitution to return fugitive slaves);

Confederate States of America—Mississippi Secession,

Declaration of the Immediate Causes which Induce

and Justify the Secession of the State of Mississippi

from the Federal Union, in Yale L. Sch., Avalon Project

(2008), https://avalon.law.yale.edu/19th_century/csa_

missec.asp. (“Our position is thoroughly identified

with the institution of slavery . . . .”).

Alexis Hoag, An Unbroken Thread: African American

Exclusion from Jury Service, Past and Present, 81 La. L. Rev. 55,

58–59 (2020); Miss. Const. art. 14 § 264 (1890) (requiring every

juror to be “a qualified elector and able to read and write”).

2

10

B. After the Union defeated the Confederacy, the

Constitution was amended to ensure that all citizens

had equal rights before the law, including the equal

opportunity to serve on a jury and to be tried by an

indifferently chosen jury. Ratified in 1868, the

Fourteenth Amendment extended citizenship to all

individuals born in the United States and subject to

its jurisdiction and guaranteed “equal protection of

the laws” for all people. U.S. Const. amend. XIV, § 1.

The

Fourteenth

Amendment’s

framers

understood that the Amendment prohibited racial

discrimination in jury selection. The debates

preceding the ratification of both the Thirteenth and

Fourteenth Amendments make clear that lawmakers

considered jury service necessary to ensure that Black

Americans would enjoy equal protection of the law.

“Equal protection” included both the protection

against crime (in particular, the lynchings and other

racially motivated violence that followed the end of the

Civil War), and the protection of a fair trial when

accused of a crime. Forman, 113 Yale L.J. at 916–17.

Congress soon exercised its authority under the

Fourteenth Amendment to ban racial discrimination

in jury service in state courts. Civil Rights Act of 1875,

ch. 114, § 4, 18 Stat. at 336–37; see Ex parte Virginia,

100 U.S. 339, 369–70 (1879); see also An Act for the

Further Security of Equal Rights in the District of

Columbia, ch. 3, 16 Stat. 3 (1869) (prohibiting racial

limitations on jury service and the right to hold office

in the District of Columbia). Denying someone the

right to serve on a jury because of their race would

violate that person’s constitutional rights. See Civil

Rights (Ku Klux Klan) Act of 1871, ch. 22, § 5, 17 Stat.

13, 15 (codified as amended at 42 U.S.C. § 1985 (2000))

11

(prohibiting Ku Klux Klan and other conspiracy

members from serving on juries).

C. This Court has likewise consistently affirmed

that the Fourteenth Amendment guarantees a jury

and jury service free from racial discrimination. This

Court first held that the Fourteenth Amendment

prohibits racial discrimination in jury selection in

1879. At that time, West Virginia had a statute which

restricted jury service to “white male persons.”

Strauder, 100 U.S. at 305. In Strauder, the Black

criminal defendant tried to remove his case to federal

court before trial. Id. He argued that because West

Virginia prohibited Black West Virginians from

sitting on juries, “he could not have the full and equal

benefit of all laws and proceedings in the State of West

Virginia . . . as is enjoyed by white citizens.” Id. at 304.

The petition was denied, as were subsequent motions

to quash the venire and challenging the array of the

panel. He was convicted and sentenced in the state

court, and the West Virginia Supreme Court affirmed.

This Court, however, reversed the conviction and

struck down the West Virginia statute. The statute

restricting jury service to White citizens, this Court

said, “discriminat[ed] in the selection of jurors [which]

amount[ed] to a denial of the equal protection of the

laws . . . .” Id. at 310.

In the nearly 140 years since Strauder, “this

Court has been unyielding in its position” that the

Equal Protection Clause protects juries from racial

discrimination. See Powers v. Ohio, 499 U.S. 400, 404

(1991); see also Peña-Rodriguez, 580 U.S. at 222. The

Court has repeatedly struck down laws and policies

that systematically exclude minorities from juries.

12

Notably, in Neal v. Delaware, the Court “reaffirm[ed]

the doctrines announced in Strauder” and prohibited

the “uniform exclusion” of Black Americans from jury

service, even when the state statute was facially

neutral and they were excluded as unqualified on

other grounds. 103 U.S. 370, 370, 397 (1880); see also

Norris v. Alabama, 294 U.S. 587, 589–90, 597 (1935)

(holding that the “long-continued, unvarying, and

wholesale exclusion of negroes” was unconstitutional

though “the state statute defining the qualifications of

jurors [was] fair on its face”); Hollins v. Oklahoma, 295

U.S. 394, 395 (1935) (per curiam) (same); Hill v. Texas,

316 U.S. 400, 401, 406 (1942) (holding that a facially

neutral regime of jury commissioner discretion was

unconstitutional when the commissioners’ longstanding practice “systematically excluded” Black

Americans); Avery v. Georgia, 345 U.S. 559, 562 (1953)

(holding as unconstitutional a system of drawing

tickets from the jury box which were different colors

based on the potential juror’s race to ensure that only

the names of White individuals would be selected to

serve on a jury); Hernandez v. Texas, 347 U.S. 475, 482

(1954) (holding that the practice of systematically

excluding persons of Mexican descent was

unconstitutional); Castaneda v. Partida, 430 U.S. 482,

500–01 (1977) (same, in grand jury selection).

In Batson v. Kentucky, this Court addressed the

racial discrimination that might hide in prosecutorial

discretion, particularly in a prosecutor’s peremptory

strikes. In Batson, “[t]he prosecutor used his

peremptory challenges to strike all four black persons

on the venire,” and the resulting all-White jury

convicted the defendant. 476 U.S. at 83. The defendant

challenged the prosecutor’s peremptory challenges as

13

racially discriminatory. Id. at 83–84. While the court

below said the prosecutor is entitled to use his

peremptory challenges to “strike anybody they want

to,” this Court reversed. Id. “[T]he State’s privilege to

strike individual jurors through peremptory

challenges[] is subject to the commands of the Equal

Protection Clause.” Id. at 89.

To enforce this principle, the Court established a

three-step, burden-shifting framework to determine

whether a prosecutor is engaged in unlawful

discrimination. Id. at 96–98. This framework

overturned the “crippling burden of proof” previously

announced in Swain v. Alabama, 380 U.S. 202 (1965),

and required merely proving discriminatory intent in

the case at bar. Id. at 92–93. In the first step, the

challenger of a strike must make a prima facie case of

discrimination on the part of the prosecutor. Id. at 96–

97. It then falls to the State to provide race-neutral

explanations for the peremptory strikes. Id. at 97. In

the third and final step, the Court determines whether

the proffered reasons “were the actual reasons or

instead were a pretext for discrimination.” Flowers,

588 U.S. at 298; Batson, 476 U.S. at 98. This third step

is the determinative step of the analysis and the valve

controlling the protective function of the jury.

Careful scrutiny of a prosecutor’s reasons for a

strike is mandatory to protect the defendant, the

prospective jurors, and the integrity of the criminal

justice system. This Court in Flowers emphasized that

“the primary responsibility to enforce Batson and

prevent racial discrimination from seeping into the

jury selection process” lies with trial judges. Flowers,

588 U.S. at 302. Trial judges especially bear this

14

responsibility, because appellate courts “necessarily”

review the decision below “on a paper record” without

the ability to evaluate credibility. Id. at 303. Vigorous

enforcement of Batson’s protection is as much for the

jurors as for the defendant. See Powers, 499 U.S. at

415 (recognizing the “equal protection claims of jurors

excluded by the prosecution because of their race”).

Simply put, courts have the mighty responsibility of

ensuring “that no citizen is disqualified from jury

service because of his race.” Batson, 476 U.S. at 99.

II. To Enforce These Protections, Courts Must

Rigorously

Scrutinize

Peremptory

Challenges,

Including

Considering

Evidence of a Prior Pattern of Racial

Discrimination.

A. To give effect to the Equal Protection Clause’s

promise, this Court has instructed lower courts to

rigorously scrutinize peremptory challenges to

determine whether a prosecutor is engaging in

unconstitutional

discrimination.

In

Batson’s

immediate aftermath, lower courts frequently failed to

adequately constrain prosecutors from using their

peremptory challenges to discriminate against Black

jurors. One analysis of capital trials in Philadelphia

between 1981 and 1997 found that prosecutors still

struck Black jurors about twice as frequently as nonBlack jurors, and race-based peremptory challenges

decreased only two percent after Batson came down. 3

Another concluded that “many courts frequently

3 David C. Baldus et al., The Use of Peremptory Challenges in

Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa.

J. Const. L. 3, 52–53, 73 n.197 (2001).

15

accept[ed] explanations that appear[ed] to be no more

than after-the-fact rationalizations for challenges . . .

made on subconsciously racial grounds.” 4 It quickly

became clear that if courts did not make affirmative

efforts to sniff out discrimination during Batson’s

third step, the doctrine did not have much of an effect.

This Court’s subsequent opinions in Miller-El and

more recently in Flowers responded to this problem

and reaffirmed the duty of courts to weigh the

government’s proffered reasons for the strikes

carefully against the evidence.

In Miller-El v. Dretke, the Court’s analysis

emphasized the importance of Batson’s third step:

courts must “ferret[] out discrimination” in jury

selection and consider “‘all relevant circumstances’”

when determining whether peremptory strikes were

motivated by intentional racial discrimination,

because discretionary, legitimate factors may easily

obscure discriminatory intent. 545 U.S. at 238, 240

(quoting Batson, 476 U.S. at l96). This includes

evidence both internal and external to the proceeding.

Relevant internal evidence includes the number and

percent of Black jurors stricken by the prosecution, a

comparison of Black jurors stricken from the panel

and White jurors permitted to serve, and any other

conduct during the jury selection procedure. See id. at

240–41. Relevant external evidence includes

prosecutorial policies and practices of discrimination

4 Charles J. Ogletree, Just Say No!: A Proposal to Eliminate

Racially Discriminatory Uses of Peremptory Challenges, 31 Am.

Crim. L. Rev. 1099, 1107 (1994).

16

outside of the specific set of jurors under consideration

in the given trial. See id. at 253.

Failure to adequately scrutinize peremptory

strikes in the face of a Batson challenge is error that

warrants habeas relief. In Miller-El, the Court

reversed the denial of habeas relief based on the

evidence showing that the prosecutor’s race-neutral

reasons to strike prospective jurors were “so far at

odds with the evidence that pretext [was] the fair

conclusion.” Id. at 265. The Court gave great weight to

the “widely known evidence of the general policy of the

Dallas County District Attorney’s Office to exclude

black venire members from juries at the time MillerEl’s jury was selected.” Id. at 253. The Court explained

that “[i]f any facially neutral reason sufficed to answer

a Batson challenge, then Batson would not amount to

much.” Id. at 240. “[S]ome stated reasons are false,

and although some false reasons are shown up within

the four corners of a given case, sometimes a court may

not be sure [that purposeful discrimination occurred]

unless it looks beyond the case at hand.” Id. at 240,

253. Thus, a prosecutor’s history of racially

discriminatory strikes in or around the time of the

relevant case provides critical context in assessing a

prosecutor’s

proffered

neutral

reasons

for

peremptorily striking minority jurors.

B. The Fifth Circuit’s decision below defies

Supreme Court precedent and deepens a circuit split

by failing to require anything at all from courts at

Batson’s third step. This results in the further

injustice of a person’s right to be tried by, or serve on,

a racially unbiased peer jury potentially depending on

where in the United States he or she lives.

17

In the state trial court where Pitchford’s counsel

made the Batson objection, the court—per the same

judge which denied Flowers’ Batson challenges—

found the State’s proffered reasons for the strikes to

be race-neutral, and “then full-stop ended its Batson

analysis.” App.21. Instead of evaluating the State’s

reasons, the court immediately continued the juror

selection process without further comment. App.21.

After the jury was selected, Pitchford’s counsel

attempted to raise the Batson issue again. App.21. But

the trial court responded: “[A]ll the reasons were race

neutral . . . . And so the Court finds there to be no

Batson violation.” App.22.

In habeas proceedings, the federal district court

correctly observed that the third step of the Batson

analysis was missing, but the Fifth Circuit reversed.

In earlier precedent, the Fifth Circuit had concluded

that the trial court may “implicitly” perform the third

step of the Batson analysis. United States v. Ongaga,

820 F.3d 152, 166–67 (5th Cir. 2016). 5 Following suit,

5 See also United States v. Thompson, 735 F.3d 291, 300 (5th

Cir. 2013) (rejecting a requirement that a court make explicit

findings during Batson’s third step, even when the only raceneutral reason advanced was a demeanor-based reason not

otherwise reviewable based on the record); United States v. Perry,

35 F.4th 293, 331 (5th Cir. 2022) (rejecting the argument that

“the trial court erred by failing to explicitly reach” step three and

recognizing as sufficient “an implicit finding . . . that the

Government’s explanation was credible”); United States v.

McDaniel, 436 F. App’x 399, 405–06 (5th Cir. 2011) (per curiam)

(“[A] district court will not be reversed for failing to explicitly

detail its findings at each step in the Batson analysis, if we are

convinced that the necessary determinations were ‘implicitly’

made.”).

18

the court below said here that “a court ‘may make

implicit findings while performing the Batson

analysis’” to satisfy the third step and found that the

state trial court had indeed done so. App.7 (quoting

Ongaga, 820 F.3d at 166).

But this willingness to invent “implicit findings”

to save the trial court’s legal error conflicts with this

Court’s precedent and precedent from other circuits.

In Snyder v. Louisiana, for example, the Court

emphasized the importance of considering all relevant

circumstances in the record—not reaching a result

and backfilling with implicit findings later. 552 U.S.

472, 478 (2008). The Third Circuit has followed this

precedent to explain that “[a]lthough a judge

considering a Batson challenge is not required to

comment explicitly on every piece of evidence in the

record, some engagement with the evidence

considered is necessary as part of step three of the

Batson inquiry.” Coombs v. Diguglielmo, 616 F.3d 255,

262 (3d Cir. 2010) (quoting Riley v. Taylor, 277 F.3d

261, 289 (3d Cir. 2001)). The Ninth Circuit likewise

requires courts to “conduct comparative juror analyses

when considering Batson objections.” Reynoso v. Hall,

395 F. App’x 344, 348 (9th Cir. 2010). Standards such

as these align with this Court’s instruction that “in

reviewing a ruling claimed to be Batson error, all of

the circumstances that bear on the issue of racial

animosity must be consulted.” Snyder, 552 U.S. at 478

(also noting that a court might be required to consider

the strike of one juror when evaluating the proffered

reason behind striking a different juror); see also

Miller-El, 545 U.S. at 251–52 (“[Batson] requires the

judge to assess the plausibility of that reason in light

of all evidence with a bearing on it.”). A defendant’s

19

access to a fair trial should not depend on whether he

lives in one of these circuits.

C. Careful scrutiny of peremptory strikes is

critical not only to protect the rights of the defendant

but also because it is often the only way to protect the

rights of individual jurors to exercise their rights as

citizens. Potential jurors who suffer racial

discrimination typically have no recourse against

prosecutors and may even face retaliation if they

speak out.

That is the case in Mississippi, where Pitchford

and Flowers were both tried by the same prosecutor.

In Flowers’ fifth retrial, this Court held that

discriminatory intent motivated at least one of the

peremptory strikes in Flowers’ trial, notwithstanding

the trial court’s denial of all five Batson objections and

the Supreme Court of Mississippi’s affirmance of

same. Flowers, 588 U.S. at 288. In Flowers’ second

retrial, just three years before the state supreme court

reviewed Pitchford’s case at bar, that high court

overturned Flowers’ judgment after reviewing “as

strong a prima facie case of racial discrimination as we

have ever seen in the context of a Batson challenge.”

Flowers v. Mississippi, 947 So.2d 910, 935 (Miss. 2007)

(en banc).

The evidence of discrimination in the Flowers

litigation was overwhelming. As this Court explained,

the prosecutor tried Curtis Flowers six separate times,

and evidence of racial discrimination permeated these

trials. Flowers, 588 U.S. at 289. In the first trial, the

prosecutor used peremptory challenges to strike all

five Black potential jurors. Id. at 306. In the second,

the prosecutor attempted to do the same, but the judge

20

determined the fifth peremptory strike was racially

motivated, leaving one Black juror. Id. at 290. Both

trials were reversed by the Mississippi Supreme Court

for other prosecutorial misconduct. Id. at 287. In the

third trial, the prosecutor used all fifteen of his

peremptory strikes against Black potential jurors, and

this time the Mississippi Supreme Court found a

Batson violation on review. Id. at 290–91. In the fourth

trial, the prosecutor used all eleven of his peremptory

challenges to strike Black jurors. Id. at 291. No racial

data was available for the fifth trial, but in the sixth

and last trial, the prosecutor struck five of the six

Black potential jurors. Id. at 292. Writing for the

majority, Justice Kavanaugh observed that “[t]he

State appeared to proceed as if Batson had never been

decided.” Id. at 306.

In light of a clear finding of racial discrimination

by this Court, Black jurors in Mississippi—one of

whom was part of the jury pool for Curtis Flowers’

third trial—sued the prosecutor based on his blatant

policy of striking jurors for racial reasons. See Class

Action Complaint, Attala Cnty., Miss. Branch of the

NAACP v. Evans, No. 4:19-cv-00167 (N.D. Miss. Nov.

18, 2019), ECF 1. The jurors provided data gathered

by investigative reporters from American Public

Media Reports, which show that in the 225 trials on

which data was gathered, this prosecutor struck Black

potential jurors 4.4 times more frequently than White

potential jurors. 6 Of this prosecutor’s 1,274 total

See Will Craft, Am. Pub. Media, Peremptory Strikes in

Mississippi’s Fifth Circuit Court District, APM Reports 2–3, 5–6,

available at https://www.apmreports.org/files/peremptory_strike

_methodology.pdf (last visited July 2, 2025).

6

21

strikes in these trials, 71% were against Black

potential jurors, and only 29% were against White

potential jurors. 7 This remained true across counties

and across serious and minor crimes. 8

Despite this Court finding racial discrimination

and the evidence supporting such a showing, the

district court nevertheless refused to entertain the

case, dismissing the action based on O’Shea

abstention. Attala Cnty., Miss. Branch of NAACP v.

Evans, 2020 WL 5351075, at *1 (N.D. Miss. Sept. 4,

2020). According to the court, because the jurors could

have brought the case in state court and the injunctive

and declaratory relief sought would interfere with

proceedings in Mississippi state court, abstention was

required. Id. at *8–12.

The Fifth Circuit affirmed on other grounds,

namely that the plaintiffs lacked standing. Attala

Cnty., Miss. Branch of NAACP v. Evans, 37 F.4th

1038, 1040 (2022). According to the Fifth Circuit, the

plaintiffs could not show “a likelihood or imminence of

the alleged future injury” because “[i]njury would

require that a Plaintiff one day is called for jury

service in a case assigned to Evans’s office; the

prosecutor seeks to remove the person from the jury

due to race; an independent decision-maker—namely

7 Id. at 6 (showing that out of 1,274 total strikes, the prosecutor

struck 902 Black venire members and only 372 White venire

members).

Id. at 7 (showing that Black jurors were, at a minimum,

struck 2.9 times more frequently than White jurors in every

county studied, and they were at least 4.1 times more likely to be

struck for every category of crime).

8

22

a trial judge who reviews a Baston challenge—then

fails to block the use of the discriminatory strike.” Id.

at 1043.

Under this logic, it is virtually impossible for any

prospective juror to take action to protect him or

herself from racial discrimination. See, e.g., Pipkins v.

Stewart, 105 F.4th 358, 359–60 (5th Cir. 2024) (per

curiam) (affirming W.D. La. summary judgment in

Equal Protection action under 42 U.S.C. § 1983

against parish district attorney’s alleged custom of

discriminatory peremptory strikes). The only way for

a court to enforce the rights of prospective jurors and

criminal defendants alike is to rigorously review

Batson challenges and the prosecutor’s reasons for a

peremptory strike.

Although the United States is full of prosecutors

with integrity who seek to fairly enforce the law, this

case and Flowers make clear that the need for careful

scrutiny remains acute. Intervention from this Court

is needed once more to reinforce the principles of

Strauder, Batson, Miller-El, and Flowers and ensure

that bad actors do not abuse their prosecutorial

discretion to deny anyone the full rights of citizenship

guaranteed by the Constitution. The Court should

grant the petition of certiorari to enforce the clear

mandates of the Equal Protection Clause.

23

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Paul d’Ambrosio

Amy R. Upshaw

KING & SPALDING LLP Counsel of Record

110 N. Wacker Drive

K. Paige Tenkhoff

Chicago, IL 60606

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

aupshaw@kslaw.com

Counsel for Amici Curiae

July 3, 2025