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

No. 24-7351

In the

Supreme Court of the United States

TERRY PITCHFORD,

Petitioner,

v.

BURL CAIN, COMMISSIONER, MISSISSIPPI

DEPARTMENT OF CORRECTIONS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF OF AMICI CURIAE AMERICAN CIVIL

LIBERTIES UNION FOUNDATION, AMERICAN

CIVIL LIBERTIES UNION OF MISSISSIPPI, AND

FRED T. KOREMATSU CENTER FOR LAW AND

EQUALITY IN SUPPORT OF PETITIONER

Cecillia D. Wang

A merican Civil Liberties

Union Foundation

425 California Street,

Suite 700

San Francisco, CA 94104

Cassandra Stubbs

Claudia Van Wyk

A merican Civil Liberties

Union Foundation

201 West Main Street,

Suite 402

Durham, NC 27701

389966

K atherine L. Pringle

Counsel of Record

Stan Chiueh

Jason B. Koffler

Friedman K aplan Seiler

A delman & Robbins LLP

7 Times Square

New York, NY 10036

(212) 833-1100

kpringle@fklaw.com

Attorneys for Amici Curiae

A

(800) 274-3321 • (800) 359-6859

Megan D. Byrne

A rijeet Sensharma

A merican Civil Liberties

Union Foundation

125 Broad Street, Floor 18

New York, NY 10004

Ayanna D. Hill

Brendan Hopkins

A merican Civil Liberties

Union of Mississippi

P.O. Box 2242

Jackson, MS 39225

Robert S. Chang

Shaleen Shanbhag

Fred. T. Korematsu Center

for Law and Equality

UC Irvine School of Law

401 East Peltason Drive

Irvine, CA 92697

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND

SUMMARY OF ARGUMENT ........................... 2

ARGUMENT ............................................................ 7

I.

THE MISSISSIPPI SUPREME COURT

DECISION OPENS THE DOOR TO

PRETEXTUAL DISCRIMINATION,

CONTRARY TO THIS COURT’S BATSON

JURISPRUDENCE. ........................................... 7

A. This Court Has Repeatedly Rejected

State Courts’ Attempts to Rewrite or

Curtail Federal Constitutional

Protections, and Should Do So Again

Here.............................................................. 7

B. Limiting a Court’s Third-Step Inquiry

into All Relevant Facts and

Circumstances Eviscerates Batson’s

Safeguards Against Pretextual

Peremptory Strikes. .................................. 10

II. THE REALITIES OF CAPITAL

LITIGATION NECESSITATE COURTS’

FAITHFUL APPLICATION OF THE

BATSON DOCTRINE IN DEATH

PENALTY CASES. .......................................... 21

A. Racial Disparities in the Use of

Peremptory Strikes Persist,

Particularly in the Capital Context. ......... 22

B. Racial Discrimination in Capital Juries

Is Particularly Pernicious. ........................ 24

ii

Page

C. Capital Cases Require Careful

Adherence to Batson.................................. 27

CONCLUSION ....................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Batson v. Kentucky,

476 U.S. 79 (1986) ......... 1-7, 9-14, 16-24, 27-28, 30

Caldwell v. Mississippi,

472 U.S. 320 (1985) .............................................. 25

Commonwealth v. Basemore,

744 A.2d 717 (Pa. 2000) ....................................... 12

Flowers v. Mississippi,

588 U.S. 284 (2019) ..................3-5, 8, 12-16, 19, 21

Ford v. Wainwright,

477 U.S. 399 (1986) ................................................ 8

Foster v. Chatman,

578 U.S. 488 (2016) ........................................ 14, 20

Gardner v. Florida,

430 U.S. 349 (1977) .............................................. 24

Gregg v. Georgia,

428 U.S. 153 (1976) ........................................ 24, 26

Johnson v. California,

545 U.S. 162 (2005) .......................................... 1, 13

Lafler v. Cooper,

566 U.S. 156 (2012) ................................................ 9

Lockett v. Ohio,

438 U.S. 586 (1978) .............................................. 26

Lockhart v. McCree,

476 U.S. 162 (1986) .........................................27-29

iv

Page(s)

Miller-El v. Dretke,

545 U.S. 231 (2005) .................. 2-3, 5, 12-15, 19-20

Moore v. Texas,

581 U.S. 1 (2017) .................................................... 9

Panetti v. Quarterman,

551 U.S. 930 (2007) .............................................8-9

Pitchford v. Cain,

126 F.4th 422 (5th Cir. 2025) .....................4, 17-18

Pitchford v. State,

45 So. 3d 216 (Miss. 2010) ...................... 3-4, 17-18

Powers v. Ohio,

499 U.S. 400 (1991) .............................................. 12

Purkett v. Elem,

514 U.S. 765 (1995) ........................................ 11, 13

Sears v. Upton,

561 U.S. 945 (2010) ................................................ 8

Smith v. Arizona,

602 U.S. 779 (2024) ................................................ 9

Snyder v. Louisiana,

552 U.S. 472 (2008) ................................. 3, 5, 12-14

Strickland v. Washington,

466 U.S. 668 (1984) .............................................8-9

Williams v. Taylor,

529 U.S. 362 (2000) ................................................ 8

Woodson v. North Carolina,

428 U.S. 280 (1976) .............................................. 25

Statutes

28 U.S.C. § 2254(d) ...............................................5, 7-8

v

Page(s)

Other Authorities

Ann M. Eisenberg et al., If It Walks Like

Systematic Exclusion and Quacks

Like Systematic Exclusion: FollowUp on Removal of Women and

African-Americans in Jury Selection

in South Carolina Capital Cases,

1997-2014, 68 S.C. L. Rev. 373

(2017) .................................................................... 22

Barbara O. O'Brien & Catherine M.

Grosso, The Costs to Democracy of a

Hegemonic Ideology of Jury

Selection, 22 Ohio St. J. Crim. L. 63

(2025) .................................................................... 28

Berkeley Law Death Penalty Clinic,

Whitewashing the Jury Box: How

California Perpetuates the

Discriminatory Exclusion of Black

and Latinx Jurors (2020) ................................11-12

Catherine M. Grosso & Barbara

O’Brien, A Stubborn Legacy: The

Overwhelming Importance of Race in

Jury Selection in 173 Post-Batson

North Carolina Capital Trials, 97

Iowa L. Rev. 1531 (2012) ..................................... 23

Catherine M. Grosso & Barbara O.

O'Brien, A Call to Criminal Courts:

Record Rules for Batson, 105 Ky.

L.J. 651 (2017) ...................................................... 23

Equal Justice Initiative, Race and the

Jury: Illegal Discrimination in Jury

Selection (2021) ......................................... 11-12, 24

vi

Page(s)

Jonathan B. Mintz, Batson v. Kentucky:

A Half Step in the Right Direction

(Racial Discrimination and

Peremptory Challenges Under the

Heavier Confines of Equal

Protection), 72 Cornell L. Rev. 1026

(1987) .................................................................... 11

Liana Peter-Hagene, Jurors’ Cognitive

Depletion and Performance During

Jury Deliberation as a Function of

Jury Diversity and Defendant Race,

43 Law & Hum. Behav. 232 (2019) ..................... 25

Mona Lynch & Craig Haney, Capital

Jury Deliberation: Effects on Death

Sentencing, Comprehension, and

Discrimination, 33 Law & Hum.

Behav. 481 (2009)............................................26-27

Mona Lynch & Craig Haney, Death

Qualification in Black and White:

Racialized Decision Making and

Death-Qualified Juries, 40 Law &

Pol'y 148 (2018) .................................................... 29

Pretext, Black’s Law Dictionary (12th

ed. 2024) ............................................................... 10

Samuel R. Sommers, On Racial

Diversity and Group Decision

Making: Identifying Multiple Effects

of Racial Composition on Jury

Deliberations, 90 J. Personality &

Soc. Psych. 597 (2006) .......................................... 25

vii

Page(s)

Will Craft, APM Reports, Peremptory

Strikes in Mississippi’s Fifth Circuit

Court District (2018) .......................................23-24

William J. Bowers et al., Death

Sentencing in Black and White: An

Empirical Analysis of the Role of

Jurors' Race and Jury Racial

Composition, 3 U. Pa. J. Const. L.

171 (2001) ............................................................. 27

1

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization

dedicated to the principles of liberty and equality

embodied in the Constitution. The ACLU has litigated

cases to advance due process and fundamental

fairness for defendants in criminal cases and, in

particular, has filed briefs concerning racial bias in

jury selection. See, e.g., Batson v. Kentucky, 476 U.S.

79 (1986) (amicus brief); Johnson v. California, 545

U.S. 162 (2005) (amicus brief). The ACLU’s Capital

Punishment Project defends persons facing the death

penalty and their constitutional rights and has

expertise on the issues and practical problems

surrounding capital litigation and capital jury

selection. The ACLU of Mississippi, founded in 1969,

is the statewide affiliate of the ACLU and is

committed to the same mission.

The Fred T. Korematsu Center for Law and

Equality (“Korematsu Center”) is based at the

University of California, Irvine School of Law and

advances justice through research, advocacy, and

education. The Korematsu Center works to promote

racial and social justice and has played a key role in

defending Batson and advancing reforms to

peremptory challenges. The Korematsu Center does

not, in this brief or otherwise, represent the official

1 No party or counsel for any party authored this brief in whole

or in part, and no person other than amici and undersigned

counsel made a monetary contribution intended to fund the

preparation or submission of this brief.

2

views of the University of California, Irvine School of

Law.

INTRODUCTION AND

SUMMARY OF ARGUMENT

During jury selection for Petitioner Terry

Pitchford’s capital trial, the prosecutor noted the race

of prospective jurors by marking them “W” or “B,”

then exercised four of his twelve peremptory

challenges to strike Black prospective jurors. As a

result, Mr. Pitchford was tried before a jury consisting

of one Black juror among fourteen jurors and

alternates (approximately 7% Black)—a stark

contrast to the original 96-member venire, which

consisted of 60 White individuals and 36 Black

individuals (37.5% Black), on par with the county’s

demographics.2 These are “remarkable” statistics

suggesting race discrimination in the jury selection

process. See Miller-El v. Dretke (Miller-El II), 545 U.S.

231, 240 (2005).

Mr. Pitchford’s counsel repeatedly and timely

challenged the prosecutor’s peremptory strikes

against Black venire members under Batson v.

Kentucky, which forbids racial discrimination in jury

selection and requires a three-step process for

challenging a peremptory strike: (1) The moving party

must establish a prima facie case of race

discrimination; (2) the responding party may rebut

that showing with a race-neutral reason; and (3) the

court then must consider all relevant facts and

circumstances to “determine if the defendant has

2 Thirty-one of the Black venire members were excused for cause.

Pet. Br. at 22.

3

established purposeful discrimination.” 476 U.S. 79,

96-98 (1986). The trial court skipped the third step

entirely, ending the Batson inquiry after finding that

the prosecutor’s proffered reasons were facially race

neutral. When defense counsel attempted to renew

her Batson objection, the trial court cut her off, stating

that her objection was “clear in the record.” JA178.

The trial court thus did not consider the ample

evidence demonstrating that the prosecutor’s

supposedly race-neutral justifications for striking

each of the four Black prospective jurors were

pretextual. All of that evidence was of a type endorsed

by this Court as appropriate proof of pretext at

Batson’s third step. See, e.g., Snyder v. Louisiana, 552

U.S. 472, 483-84 (2008) (endorsing comparative juror

analysis); Flowers v. Mississippi, 588 U.S. 284, 307

(2019) (evaluating the prosecutor’s pattern of

disproportionately striking Black prospective jurors).

On direct appeal, the Mississippi Supreme Court

committed multiple major errors. First, contrary to

this Court’s decisions in, inter alia, Batson, Miller-El

II, Snyder, and Flowers, the Mississippi Supreme

Court held that, even if relevant facts and

circumstances exist elsewhere in the trial record, “[i]f

the defendant fails to rebut” a prosecutor’s raceneutral

reason

with

particular

facts

and

circumstances, “the trial judge must base his [or her]

decision on the reasons given by the State.” Pitchford

v. State, 45 So. 3d 216, 227 (Miss. 2010) (emphasis

added) (citation omitted). Simply put, the Mississippi

Supreme Court deemed the relevant facts and

circumstances that a trial court must consider at

Batson’s third step to exclude any facts and

4

circumstances not expressly “argu[ed] . . . by [defense]

counsel” “during the Batson hearing.” Id. at 228 &

n.17. That contravened this Court’s clear instruction

that in evaluating discriminatory intent at step three,

“[t]he trial court must consider the prosecutor’s raceneutral explanations in light of all of the relevant

facts and circumstances, and in light of the arguments

of the parties.” Flowers, 588 U.S. at 302 (emphasis

added).

Second, and perversely compounding that initial

error, the Mississippi Supreme Court itself refused to

consider other facts in the trial record for the first

time on appeal, holding that Mr. Pitchford had waived

his right to argue on appeal that those facts and

circumstances demonstrated that the prosecutor’s

reasons for striking the four Black jurors were

pretextual. Pitchford v. State, 45 So. 3d at 227. The

Mississippi Supreme Court so held even though the

trial court refused to conduct any step-three inquiry

and told defense counsel that the court would not hear

anything further on the subject but would simply note

her objection for the record.

On habeas review, the Fifth Circuit wholly

endorsed

the

Mississippi

Supreme

Court’s

conclusions. See Pitchford v. Cain, 126 F.4th 422, 42830 (5th Cir. 2025).

Amici write to explain why the Mississippi

Supreme Court’s and Fifth Circuit’s errors, if left

standing, would severely curtail defendants’ and

courts’ ability to root out prosecutors’ use of pretextual

justifications

to

support

racially

motivated

peremptory strikes. This result would improperly

5

permit courts to blind themselves to significant

evidence supporting a finding of discrimination. And

it would lead to pernicious outcomes—particularly in

capital cases—contrary to this Court’s line of

precedents from Batson through Miller-El II, Snyder,

and Flowers.

I. Although state court decisions on constitutional

claims are entitled to deference under 28 U.S.C.

§ 2254(d), a state court may not ignore or rewrite this

Court’s constitutional holdings. By limiting the stepthree analysis only to arguments raised by the

defense, endorsing the trial court’s failure to conduct

any step-three inquiry at all, and then holding that

the defense waived any step-three arguments, the

Mississippi Supreme Court unduly constrained the

third step of Batson, impeding courts’ ability to

identify and root out pretext. That ruling embraced a

manifestly unreasonable application of clearly

established federal law.

Pretext is a persistent and severe threat to the

proper working of the Batson scheme. Pretext has also

proven difficult to unearth and uproot. This Court’s

clear and settled requirement that courts consider a

prosecutor’s race-neutral justification in light of all

relevant facts and circumstances is particularly

important in providing courts with a mix of tools to

identify and eliminate pretextual discrimination. This

Court recently employed many of those tools in

another Mississippi case involving the same

prosecutor and the same trial court. See Flowers, 588

U.S. 284.

6

The Mississippi Supreme Court’s and Fifth

Circuit’s decisions, if upheld, threaten to artificially

and significantly shrink the universe of facts and

circumstances courts may consider to determine

whether a prosecutor’s justification for a strike is

pretextual. That result cannot be squared with this

Court’s Batson jurisprudence.

II. Faithful application of Batson is especially

important in death penalty cases, as the risk of

departures from this Court’s Batson jurisprudence in

the capital context carries especially dire

consequences. Racial disparities have been shown to

persist in the exercise of peremptory strikes,

particularly in death penalty cases. This is especially

troubling given the critical importance of racial

diversity in capital juries. Moreover, the death

qualification process often results in fewer Black

prospective jurors in the venire at the peremptory

challenge stage, amplifying the impact of an

impermissibly race-motivated peremptory strike. It

also may arm prosecutors with a facially race-neutral

justification to deploy as pretext for a racially

discriminatory strike, as happened in Mr. Pitchford’s

case.

The Court should reverse and remand for the

entry of judgment in Petitioner’s favor.

7

ARGUMENT

I.

THE MISSISSIPPI SUPREME COURT

DECISION OPENS THE DOOR TO

PRETEXTUAL DISCRIMINATION,

CONTRARY TO THIS COURT’S BATSON

JURISPRUDENCE.

A.

This Court Has Repeatedly Rejected

State Courts’ Attempts to Rewrite or

Curtail Federal Constitutional

Protections, and Should Do So

Again Here.

When this Court speaks on a constitutional

question, its words are authoritative. The habeas

context is no exception to that rule. The deference

afforded to state court adjudications of constitutional

claims under 28 U.S.C. § 2254(d) does not, by the

statute’s plain text, grant state courts a license to

ignore this Court’s holdings and depart from this

Court’s constitutional frameworks. Under this Court’s

habeas jurisprudence, a state court decision that

substitutes its own rule for one this Court has

supplied, or otherwise offers less protection than

required under this Court’s decisions, is “contrary to”

or “an unreasonable application of” clearly established

federal law. 28 U.S.C. § 2254(d)(1). That is precisely

what the Mississippi Supreme Court did here when it

imposed restrictions on Batson’s third step, excluding

consideration of any evidence or arguments not

specifically raised by the defense (even while the trial

court declined to continue its inquiry after the

prosecution proffered its supposedly race-neutral

reasons) and thus curtailing courts’ review of “all of

8

the relevant facts and circumstances” bearing on

whether a peremptory strike was racially motivated.

Flowers, 588 U.S. at 302 (emphasis added). Habeas

relief is accordingly appropriate.3

This Court has routinely rejected on habeas

review state court rulings that have constrained or

foreclosed a constitutionally required inquiry into all

relevant facts and circumstances. For example, in

Williams v. Taylor, 529 U.S. 362 (2000), a capital case

involving a claim of ineffective assistance of counsel,

this Court held that the Virginia Supreme Court’s

prejudice determination was “unreasonable” because

it imported and applied an inapposite test that

prevented the court from “evaluat[ing] the totality of

the available mitigation evidence” as required under

Strickland v. Washington, 466 U.S. 668 (1984).

Williams, 529 U.S. at 397-98; see also Sears v. Upton,

561 U.S. 945, 954-55 (2010) (rejecting state court’s

“little or no mitigation evidence” test and reiterating

that “the Strickland inquiry requires precisely the

type of probing and fact-specific analysis that the

state trial court failed to undertake below”). Similarly,

in Panetti v. Quarterman, 551 U.S. 930 (2007), this

Court held that the state court flouted the “basic

requirements” set forth in Ford v. Wainwright, 477

U.S. 399 (1986), for determining a prisoner’s

competence for execution. Panetti, 551 U.S. at 950-51.

Ford made clear that those basic requirements

include a “fair hearing,” accompanied by an

opportunity

to

submit

evidence—including

3 As Petitioner identifies, habeas relief is also appropriate under

28 U.S.C. § 2254(d)(2) because the Mississippi Supreme Court’s

waiver finding was an “unreasonable determination of the facts.”

See Pet. Br. at 30-40.

9

independent psychiatric evidence—and argument

from counsel. Id. at 949-50 (citation omitted). Because

the state court failed to provide “a constitutionally

adequate opportunity to be heard” and foreclosed

consideration of relevant psychiatric evidence, this

Court held that the state court’s “determination

cannot be reconciled with any reasonable application

of the controlling standard in Ford.” Id. at 952-53.

These cases and others illustrate the basic

principle that state courts may not rewrite or ignore

this Court’s constitutional jurisprudence. See also,

e.g., Smith v. Arizona, 602 U.S. 779, 794 (2024) (state

evidentiary rules not controlling on whether federal

confrontation violation has occurred); Moore v. Texas,

581 U.S. 1, 5-6 (2017) (state court could not adopt its

own so-called Briseño factors to determine whether

defendant was intellectually disabled and thus

ineligible for death penalty); Lafler v. Cooper, 566

U.S. 156, 173 (2012) (state court unreasonably

analyzed claim of ineffective assistance in plea

bargaining by asking whether decision to reject plea

offers was voluntary rather than applying Strickland

ineffective assistance test). Where this Court has

prescribed a particular constitutional inquiry, state

courts must scrupulously apply each step of that

inquiry.

Here, the Mississippi Supreme Court’s erroneous

waiver ruling effectively papered over the trial court’s

failure to weigh the prosecutor’s proffered raceneutral reasons in light of all relevant facts and

circumstances. Both of these errors, separately and

together, overrode the third step of the

constitutionally required Batson analysis and

10

contravened this Court’s precedents. As described

below, that result cannot be squared with this Court’s

jurisprudence, and it distorts Batson beyond

recognition.

B.

Limiting a Court’s Third-Step

Inquiry into All Relevant Facts and

Circumstances Eviscerates

Batson’s Safeguards Against

Pretextual Peremptory Strikes.

In Batson v. Kentucky, this Court adopted a threestep procedure for courts to root out racial

discrimination in the exercise of peremptory strikes.

Once a defendant has established a prima facie case

of discrimination, the prosecutor “must articulate a

neutral explanation related to the particular case to

be tried.” Batson, 476 U.S. at 98. At the third step, the

trial court incurs a “duty” to conduct a searching

review “to determine if the defendant has established

purposeful discrimination.” Id.

Critically, Batson’s third step requires courts to

ascertain whether a prosecutor’s race-neutral

justification is genuine or is instead mere pretext for

a racially discriminatory intent. Pretext—a “false or

weak” race-neutral reason “advanced to hide the

actual or strong reason or motive,” Pretext, Black’s

Law Dictionary (12th ed. 2024)—has long been viewed

as a fundamental threat to the effective operation of

this Court’s rule under Batson and its progeny.

Indeed, as far back as the decision in Batson itself,

Justice Marshall warned that “[a]ny prosecutor can

easily assert facially neutral reasons for striking a

juror,” potentially circumventing Batson’s core

11

protections. Batson, 476 U.S. at 106 (Marshall, J.,

concurring); see also Purkett v. Elem, 514 U.S. 765,

773 (1995) (Stevens, J., dissenting) (noting that “rote

neutral explanations” that “bear facial legitimacy but

conceal a discriminatory motive” threaten to turn

Batson into a “charade” (internal quotation omitted)).

Forty years of Batson and related state-court

jurisprudence have demonstrated the “disturbing

ease with which a prosecutor can defeat a prima facie

discrimination case” by offering purportedly raceneutral reasons. Jonathan B. Mintz, Batson v.

Kentucky: A Half Step in the Right Direction (Racial

Discrimination and Peremptory Challenges Under the

Heavier Confines of Equal Protection), 72 Cornell L.

Rev. 1026, 1037 (1987). In fact, to this day, some

prosecutors are “explicitly trained to provide ‘raceneutral’ reasons for strikes against people of color” to

evade detection when faced with a defendant’s Batson

challenge. Equal Justice Initiative, Race and the Jury:

Illegal Discrimination in Jury Selection 43 (2021),

https://perma.cc/3FNJ-V2PG

[hereinafter

EJI

Report]. For instance, a 2020 study reported how

district attorney’s offices in California trained

prosecutors to walk into court armed with stock, raceneutral reasons previously found acceptable by courts.

See

Berkeley

Law

Death

Penalty

Clinic,

Whitewashing the Jury Box: How California

Perpetuates the Discriminatory Exclusion of Black

and

Latinx

Jurors

49-50

(2020),

https://perma.cc/L6RR-RM9P. One such set of

training materials, The Inquisitive Prosecutor’s Guide

from Santa Clara County, lists 77 race-neutral

reasons for striking a prospective juror, including: too

much education, or too little; a lack of community or

12

family ties, or too many; previous service on a hung

jury, or a lack of previous service on any jury at all.

See id. at 50. Similar examples have been reported in

other states, including Pennsylvania, North Carolina,

and Texas. See EJI Report at 43 (North Carolina and

Texas examples); Commonwealth v. Basemore, 744

A.2d 717, 729 (Pa. 2000) (describing training video in

which

prosecutor

offered

“techniques”

for

“accomplishing” discriminatory strikes, including “the

invention of pretextual reasons for exercising

peremptory challenges”).

Recognizing the corrosive effects of such tactics on

the integrity of a justice system constitutionally

required to be free from invidious racial

discrimination, this Court has often emphasized that

a prosecutor’s use of pretext as cover for a

discriminatory strike violates the Equal Protection

Clause. See, e.g., Snyder, 552 U.S. at 485 (explaining

that the “prosecution’s proffer” of a “pretextual

explanation naturally gives rise to an inference of

discriminatory intent”); Miller-El II, 545 U.S. at 252.4

And the responsibility to root out pretext ultimately

falls upon the trial court at Batson step three, at

which “[t]he trial judge must determine whether the

4 As this Court has made clear, the interests protected by Batson

and its progeny extend beyond the rights of the individual

defendant. See, e.g., Flowers, 588 U.S. at 301 (“Batson sought to

protect the rights of defendants and jurors, and to enhance public

confidence in the fairness of the criminal justice system.”);

Powers v. Ohio, 499 U.S. 400, 406 (1991) (“Batson was designed

to serve multiple ends, only one of which was to protect

individual defendants from discrimination in the selection of

jurors. Batson recognized that a prosecutor’s discriminatory use

of peremptory challenges harms the excluded jurors and the

community at large.” (cleaned up)).

13

prosecutor’s proffered reasons are the actual reasons,

or whether the proffered reasons are pretextual and

the prosecutor instead exercised peremptory strikes

on the basis of race.” Flowers, 588 U.S. at 303

(emphasis added).

Trial courts’ duty to identify and reject pretextual

explanations at Batson step three is particularly

important because, as this Court has explained, the

parties’ respective burdens at steps one and two are

not especially demanding. See, e.g., Johnson v.

California, 545 U.S. 162, 168-70 (2005) (rejecting a

“more likely than not” threshold and holding that, at

Batson step one, a defendant need only provide

“evidence sufficient to permit the trial judge to draw

an inference that discrimination has occurred”);

Purkett, 514 U.S. at 768 (holding that, at Batson step

two, even a “silly or superstitious” explanation will

suffice to move on to step three, so long as the

explanation is race-neutral). Accordingly, in trial

courts today, it is often the third step at which the

heart of Batson protection lies.

Precisely because of the threat posed by pretext

and the difficulties encountered in detecting it, this

Court has repeatedly made clear that, at Batson’s

third step, courts “must consider the prosecutor’s

race-neutral explanations in light of all of the relevant

facts and circumstances.” Flowers, 588 U.S. at 302

(emphasis added); see also Miller-El II, 545 U.S. at

251-52 (Batson step three “requires the judge to

assess the plausibility of” the race-neutral “reason in

light of all evidence with a bearing on it”); Snyder, 552

U.S. at 478 (“In Miller-El v. Dretke, the Court made it

clear that in considering a Batson objection, or in

14

reviewing a ruling claimed to be Batson error, all of

the circumstances that bear upon the issue of racial

animosity must be consulted.”); Foster v. Chatman,

578 U.S. 488, 501 (2016) (reiterating that this Court

has “made it clear” that, “in reviewing a ruling

claimed to be a Batson error, all of the circumstances

that bear upon the issue of racial animosity must be

consulted” by the trial court (cleaned up)). And,

mindful that the work of unearthing and uprooting

pretext is a “difficult burden” to impose on trial courts,

see Batson, 476 U.S. at 105 (Marshall, J., concurring),

this Court has approved trial courts’ use of numerous

tools, available based on the trial court record alone,

to assist in carrying out this critical task. These tools

include:

•

Comparative juror analyses, showing that the

“proffered reason for striking a black panelist

applies just as well to an otherwise-similar

nonblack panelist who is permitted to serve.”

Flowers, 588 U.S. at 311 (citation omitted); see

also Foster, 578 U.S. at 505-06, 512-13;

Snyder, 552 U.S. at 483-84; Miller-El II, 545

U.S. at 241;

•

Disparities in the number of questions asked

by the prosecutor to Black versus non-Black

members of the jury pool. See Flowers, 588

U.S. at 310 (asking “a lot of questions” of Black

prospective jurors enables a prosecutor to “try

to find some pretextual reason—any reason—

that the prosecutor can later articulate to

justify what is in reality a racially motivated

strike”);

15

•

Disparities in the wording of questions asked

by the prosecutor to Black versus non-Black

members of the jury pool. See Miller-El II, 545

U.S. at 255 (describing the selective asking of

“graphic” voir dire questions “to prompt some

expression of hesitation” on the death penalty

“and thus to elicit plausibly neutral grounds”

for a racially discriminatory strike);

•

Misstatements by the prosecutor of the voir

dire record to support a race-neutral reason.

See Flowers, 588 U.S. at 314 (“When a

prosecutor misstates the record in explaining

a strike, that misstatement can be another

clue showing discriminatory intent.”); see also

Miller-El II, 545 U.S. at 244 (finding relevant

to finding of pretext that the prosecutor

“simply mischaracterized” stricken juror’s

“testimony” on voir dire);

•

Evidence that the prosecutor conducted

special investigations into qualified Black

prospective jurors to identify some raceneutral basis to disqualify them. See Flowers,

588 U.S. at 302, 309-10 (identifying as

relevant “disparate . . . investigation of black

and white prospective jurors in the case”);

•

Evidence that the prosecutor selectively

employed other tactics to avoid seating Black

prospective jurors—e.g., a selective “jury

shuffle” used to move Black prospective jurors

to the back of the jury pool. See Miller-El II,

545 U.S. at 253; and

16

•

Evidence of the prosecutor’s own “demeanor”

or “credibility” in asking questions, making

statements during voir dire, or responding to

the Batson challenge. See Flowers, 588 U.S. at

302-03.

This list is not exhaustive, but it illustrates

numerous ways in which a court’s consideration of a

“prosecutor’s race-neutral explanations in light of all

of the relevant facts and circumstances” powerfully

checks the use of pretext as a cover for discrimination.

Flowers, 588 U.S. at 302. In short, by mandating

examination of all relevant facts and circumstances in

considering whether a race-neutral reason is in fact

pretextual, this Court has endowed trial courts (and

reviewing courts) with the necessary means to gauge

the genuineness of a prosecutor’s justifications.

Given all this—the plain threat that pretext poses

to faithful application of Batson’s dictates; the myriad

examples of efforts to thwart Batson; and this Court’s

repeated command that trial courts use all relevant

facts and circumstances to root out pretext at Batson

step three—affirming the Fifth Circuit and

Mississippi Supreme Court decisions in this case

would cause a fundamental “backsliding” in how

Batson protections should be “vigorously enforced and

reinforced.” Id. at 301.

Among other problems, see Pet. Br. at 30-50, the

decisions of the Mississippi Supreme Court and the

Fifth Circuit have the practical effect of artificially

and dramatically shrinking the universe of “facts and

circumstances” available to the trial court to

determine whether a prosecutor’s reason at step two

17

was pretextual. Specifically, the Mississippi Supreme

Court’s decision holds that, even if facts and

circumstances constituting proof of pretext are

available to the trial court elsewhere in the trial

record, “[i]f the defendant fails to rebut”—i.e., fails to

expressly offer those facts and circumstances in

rebuttal after the prosecutor gives a race-neutral

reason—“the trial judge must base his [or her]

decision on the reasons given by the State.” Pitchford

v. State, 45 So. 3d at 227 (emphasis added) (citation

omitted). Thus, the Mississippi Supreme Court’s

ruling would prohibit a trial court from making a

finding of pretext based upon any evidence, facts, or

circumstances not expressly cited by defense counsel

at Batson’s third step. See id. at 228 & n.17

(confirming that, “in adjudicating the pretext issue[,]

the trial judge must look at the totality of the

circumstances and all of the facts” but holding that

“those circumstances and facts do not include

arguments not made by [defense] counsel” “during the

Batson hearing”). Similarly, the Fifth Circuit decision

holds that the trial court, in assessing whether the

prosecutor’s step-two reason was pretextual, was

entitled to “refus[e] to consider” facts elsewhere in the

trial record, when these facts were not “argued” by

defense counsel “during voir dire or post-trial.”

Pitchford v. Cain, 126 F.4th at 430.

Worse still, the decisions of the Mississippi

Supreme Court and the Fifth Circuit, if upheld, would

correspondingly—and equally artificially—shrink the

record on appeal for any challenge regarding pretext

to just those facts that were squarely presented by

defense counsel at a particular juncture in the Batson

colloquy, effectively insulating from review the trial

18

court’s failure or refusal to consider other facts in the

trial record. See Pitchford v. State, 45 So. 3d at 227-28

(refusing to “entertain” arguments concerning pretext

based on facts in the record but deemed not to have

been raised “during the Batson hearing”); Pitchford v.

Cain, 126 F.4th at 428-29 (asserting that “a

defendant’s failure to challenge a prosecutor’s raceneutral explanation constitutes waiver”).

The upshot of these decisions, then, is that by

invoking the language of waiver and limiting the trial

court’s inquiry at step three to evidence and

arguments specifically raised by the defense, the

Mississippi Supreme Court and the Fifth Circuit have

effectively limited the Batson step-three universe—

and the “record” on appeal—to only those facts and

circumstances that defense counsel can get out on the

record in the narrow window of time between (a) the

prosecutor’s proffer of race-neutral reasons at step

two;5 and (b) whenever the trial court makes a

determination, if even stated explicitly at all, that the

prosecutor’s justifications were not a pretext for

discrimination. As Petitioner persuasively argues,

this is an unrealistic and unreasonable limitation in

view of the sheer volume of record material developed

through the jury selection process. See Pet. Br. at 4546 (“Jury selection in this case involved a 126-member

5 It is, of course, impossible for a defendant to identify, let alone

present, facts showing that the prosecutor’s race-neutral reason

at step two is pretext before the race-neutral reason has actually

been given. The best defense counsel can do before the prosecutor

offers a race-neutral reason, then, is to remind the trial court to

faithfully carry out its duty to evaluate the forthcoming

justification in light of all relevant facts and circumstances, as

defense counsel did here. See JA169.

19

initial jury pool, 564 pages of juror questionnaires,

189 pages of voir dire testimony, and only a 20-minute

period for counsel to analyze that information and

decide how to use their limited strikes.”).6

Constraining courts to consider only the evidence and

arguments that defense counsel is able to muster in

the midst of the “hurried” nature of the “back and

forth of a Batson hearing,” Flowers, 588 U.S. at 314,

is plainly an unreasonable departure from Batson’s

dictates.

This artificial limitation on what a court can

consider at step three simply cannot be reconciled

with this Court’s unbroken line of cases requiring

courts to consider all of the relevant facts and

circumstances that bear on pretext, see supra at 1314, and not just some of them. Nor is it any answer to

reframe the opinions as permitting reviewing courts

to consider all the facts and circumstances in the trial

record so long as defense counsel formally argues that

a comparative analysis (or any other inquiry that

might reveal pretext, see supra at 14-16) needs to be

undertaken. This Court in Miller-El II flatly rejected

the dissent’s “conflat[ion of] the difference between

evidence that must be presented to the state courts to

be considered by federal courts in habeas

proceedings,” on the one hand, and “theories about

that evidence,” on the other, stating that “[t]here can

be no question that the transcript of voir dire,

recording the evidence on which Miller-El bases his

arguments and on which we base our result. . . was

6 And in this case, the trial court did not even entertain third-

step arguments at all.

20

before the state courts.”7 545 U.S. at 241 n.2; cf.

Foster, 578 U.S. at 501 (refusing to “blind” itself to all

relevant evidence bearing on discriminatory purpose).

The decisions of the Mississippi Supreme Court

and the Fifth Circuit also cannot be squared with this

Court’s recognition that the clearest evidence of

pretext may arise outside the trial record:

Some 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

unless it looks beyond the case at hand.

Hence Batson’s explanation that a

defendant may rely on “all relevant

circumstances” to raise an inference of

purposeful discrimination.

Miller-El II, 545 U.S. at 240 (citation omitted); see also

Foster, 578 U.S. at 508 (considering evidence from

post-trial proceedings in evaluating pretext).

Clear evidence of pretext may be found, for

example, in admissions of motivations based on race;

marked up venire lists divided by race (like those

District Attorney Evans used here, Pet. Br. at 7-8);

other evidence “supplie[d]” by history, such as

discriminatory policies and voir dire training

materials, Miller-El II, 545 U.S. at 263-64, 266; and

evidence of a clear “pattern” of racially motivated

peremptory strikes continuing across multiple trials,

7 So too here. The facts and circumstances on which Petitioner

relies were all part of the existing trial court record. See Pet. Br.

at 22-29.

21

Flowers, 588 U.S. at 304. Thus, by unreasonably

finding waiver, the Mississippi Supreme Court

prevented the trial and reviewing courts from

considering not just relevant evidence in the trial

record, but also such probative evidence outside the

trial record.

“[E]ven a single instance of race discrimination

against a prospective juror is impermissible.” Id. at

300. This Court should not accept an outcome in which

some Batson violations, provable by evidence showing

that the prosecutor’s purported race-neutral reason is

pretext for race discrimination, will go unremedied

because a trial court refuses to consider such evidence,

and reviewing courts likewise treat such evidence as

not part of the relevant record of review. Limiting the

analysis in this way serves only to protect and

entrench pretextual race discrimination, not uproot it.

II.

THE REALITIES OF CAPITAL

LITIGATION NECESSITATE COURTS’

FAITHFUL APPLICATION OF THE

BATSON DOCTRINE IN DEATH

PENALTY CASES.

Nowhere is the need for faithful adherence to this

Court’s clearly established Batson jurisprudence more

apparent than in the capital context.

As studies demonstrate, notwithstanding this

Court’s clear dictates, prosecutors continue to exercise

peremptory challenges in a racially discriminatory

manner, especially in death penalty cases. The

damaging consequences of discriminatory strikes are

particularly acute in death penalty cases, considering

the incalculable stakes and the countless studies

22

showing that diverse juries are best positioned to

engage in fair deliberation regarding both guilt and

sentencing. Moreover, the practical effect of death

qualification is that diverse juries are more difficult to

obtain in capital cases. These realities underscore the

need for courts to apply Batson in capital cases in the

proper manner dictated by this Court, including by

undertaking a review of all facts and circumstances

bearing on discrimination at step three.

A.

Racial Disparities in the Use of

Peremptory Strikes Persist,

Particularly in the Capital Context.

Despite this Court’s repeated admonitions, racial

disparities in jury selection remain a persistent

problem, especially in the capital context. For

example, an examination of capital cases in South

Carolina during the period 1997–2014 revealed that

prosecutors exercised peremptory challenges on

prospective Black male jurors over three times more

often than on prospective White male jurors, and on

prospective Black female jurors 1.67 times more often

than on prospective White female jurors. See Ann M.

Eisenberg et al., If It Walks Like Systematic Exclusion

and Quacks Like Systematic Exclusion: Follow-Up on

Removal of Women and African-Americans in Jury

Selection in South Carolina Capital Cases, 1997-2014,

68 S.C. L. Rev. 373, 384 (2017). This study noted that,

“[a]lthough race- or gender-neutral factors might

explain some of these disparities, the consistency of

these findings with those of previous studies suggests

that prosecutors’ use of peremptory strikes was

motivated by race . . . .” Id. at 389.

23

Similarly, an examination of post-Batson capital

cases in North Carolina revealed that during a

twenty-year period through July 1, 2010, in 173

capital trials, “prosecutors struck eligible black venire

members at about 2.5 times the rate they struck

eligible venire members who were not black.”

Catherine M. Grosso & Barbara O’Brien, A Stubborn

Legacy: The Overwhelming Importance of Race in

Jury Selection in 173 Post-Batson North Carolina

Capital Trials, 97 Iowa L. Rev. 1531, 1533 (2012).

Importantly, these disparities “did not diminish when

. . . controlled for information about venire members

that potentially bore on the decision to strike them,

such as views on the death penalty or prior experience

with crime.” Id. at 1533-34; see also Catherine M.

Grosso & Barbara O. O’Brien, A Call to Criminal

Courts: Record Rules for Batson, 105 Ky. L.J. 651, 658

(2017) (“Prosecutors continue to exercise peremptory

challenges at a significantly higher rate against black

venire members than against all other venire

members.”).

Of particular relevance here, a study of 225 trials

during the period 1992–2017 conducted by District

Attorney Doug Evans—the district attorney who

prosecuted Mr. Pitchford and Mr. Flowers—or one of

his assistants in Mississippi’s Fifth Circuit Court

District revealed significant racial disparities. See

Will Craft, APM Reports, Peremptory Strikes in

Mississippi’s Fifth Circuit Court District (2018),

https://perma.cc/D4TY-27FV. Looking specifically at

the capital context, the study concluded that “black

jurors in capital murder trials were more than eight

times as likely to be struck than white jurors,” and

“[b]eing black was the greatest predictor of being

24

struck in capital trials, even more than expressing

hesitation about imposing the death penalty.” Id. at

12. Across all 225 trials (including non-capital cases),

the study revealed that prosecutors exercised

peremptory strikes against Black prospective jurors

at a rate nearly 4.5 times greater than that for

prospective White jurors. Id. at 2. A review of a subset

of 89 voir dire reports showed that “[r]ace remained a

strong predictor of whether a juror would be struck

after taking into account the race-neutral

characteristics brought up in jury selection. Even

more, no variable explained away the importance of

race.” Id. at 13.

Similar race disparities in the use of peremptory

strikes by prosecutors have been documented in

numerous other states and jurisdictions. See EJI

Report at 42 (describing additional studies in

Louisiana and California). The existence of persistent

race disparities in jury selection in capital trials only

amplifies the importance of ensuring that reviewing

courts apply Batson consistent with this Court’s

precedents.

B.

Racial Discrimination in Capital

Juries Is Particularly Pernicious.

Capital juries bear more responsibility than noncapital juries because their decisions carry more dire

consequences. As this Court has long acknowledged,

the punishment of death is different from

incarceration “in both its severity and its finality.”

Gardner v. Florida, 430 U.S. 349, 357 (1977) (plurality

opinion); see also Gregg v. Georgia, 428 U.S. 153, 188

(1976) (plurality opinion) (stating that “the penalty of

25

death is different in kind from any other punishment

imposed under our system of criminal justice”).

Because of this, citizens should have a necessarily

“heightened” sense of responsibility when discharging

their duty as jurors in a capital case. Caldwell v.

Mississippi, 472 U.S. 320, 340 (1985) (cleaned up).

Studies have uncovered multiple ways in which

racially diverse juries are apt to be better equipped to

meet this “heightened” calling in capital cases. In

determining the purely factual question of guilt or

innocence, more diverse juries are more apt to reach

evidence-based conclusions, as they “deliberate[]

longer” and “consider[] a wider range of information.”

See Samuel R. Sommers, On Racial Diversity and

Group Decision Making: Identifying Multiple Effects

of Racial Composition on Jury Deliberations, 90 J.

Personality & Soc. Psych. 597, 606 (2006). These

juries in turn “ma[k]e fewer factual errors” than nondiverse juries. Id. The differences in deliberation

quality are particularly marked in cases involving

Black defendants, as the deliberations of non-diverse

juries have been found to be “overall of lower quality

(i.e., fewer factual statements, decreased accuracy,

and fewer novel contributions) when the defendant

was Black (vs. White).” Liana Peter-Hagene, Jurors’

Cognitive Depletion and Performance During Jury

Deliberation as a Function of Jury Diversity and

Defendant Race, 43 Law & Hum. Behav. 232, 244

(2019).

After the guilt-innocence determination, capital

juries have an even weightier task—the decision

whether to sentence someone to death. See Woodson

v. North Carolina, 428 U.S. 280, 305 (1976) (plurality

26

opinion) (“Because of that qualitative difference, there

is a corresponding difference in the need for reliability

in the determination that death is the appropriate

punishment in a specific case.”). Capital sentencing

necessarily requires consideration and weighing of

aggravating and mitigating circumstances. See Gregg,

428 U.S. at 206 (plurality opinion); id. at 211 (White,

J., concurring) (upholding a statute requiring capital

juries to “consider[] evidence of any mitigating

circumstances

or

aggravating

circumstances

otherwise authorized by law” (internal quotation

omitted)).

Recognizing the significance of a reliable,

individualized sentencing determination in capital

cases, this Court has ruled that juries may consider,

“as a mitigating factor, any aspect of a defendant’s

character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a

sentence less than death.” Lockett v. Ohio, 438 U.S.

586, 604-05 (1978). Studies have shown, however, that

there are “racial differences in the use and misuse of

mitigating evidence” and that this gap is wider for

White jurors considering Black defendants. Mona

Lynch & Craig Haney, Capital Jury Deliberation:

Effects on Death Sentencing, Comprehension, and

Discrimination, 33 Law & Hum. Behav. 481, 494

(2009) (discussing “the relative inability of White

jurors to perceive Black capital defendants as enough

like themselves to readily feel any of their pains, to

appreciate the true nature of the struggles they have

faced, or to genuinely understand how and why their

lives have taken very different courses from the

jurors’ own” (internal quotation omitted)). This gap

widens further where the victim in the case is also

27

White. Id.; see also William J. Bowers et al., Death

Sentencing in Black and White: An Empirical

Analysis of the Role of Jurors’ Race and Jury Racial

Composition, 3 U. Pa. J. Const. L. 171, 193 (2001)

(“The presence of five or more white males on the jury

dramatically increased the likelihood of a death

sentence in the [Black defendant, White victim]

cases.”).

C.

Capital Cases Require Careful

Adherence to Batson.

Jury diversity is not only more important in

capital cases—it is also considerably harder to

achieve. Pursuant to the practice of death

qualification, prospective jurors may be removed for

cause if they voice death penalty opposition “so strong

that it would prevent or substantially impair the

performance of their duties as jurors.” Lockhart v.

McCree, 476 U.S. 162, 165 (1986). This Court held in

Lockhart that death qualification is “carefully

designed to serve the State’s concededly legitimate

interest in obtaining a single jury that can properly

and impartially apply the law to the facts of the case

at both the guilt and sentencing phases of a capital

trial.” Id. at 175-76. However, this practice has at

least two significant practical effects on capital jury

diversity.

First, death qualification disproportionately

removes Black potential jurors from the jury pool, and

did so here. See id. at 201 (Marshall, J., dissenting)

(“Because opposition to capital punishment is

significantly more prevalent among blacks than

among whites, the evidence suggests that death

28

qualification will disproportionately affect the

representation of blacks on capital juries.”); see also

Barbara O. O’Brien & Catherine M. Grosso, The Costs

to Democracy of a Hegemonic Ideology of Jury

Selection, 22 Ohio St. J. Crim. L. 63, 87-88 (2025)

(analyzing jury selection in capital trials in Wake

County, North Carolina between 2008 and 2019 and

finding that Black venire members were excluded due

to death qualification at more than twice the rate of

their White counterparts). In other words, death

qualification disproportionately reduces the number

of Black people able to serve on a jury, making it more

likely that capital juries will be non-diverse and

vulnerable to the weaknesses discussed above, and

making any violation of the Batson procedure

particularly consequential.

Second, because of death qualification, Black

prospective jurors are disproportionately vulnerable

to pretextual, racially discriminatory peremptory

strikes. The Court in Lockhart made clear that death

scruples need not make prospective jurors excludable

for cause, remarking,

[i]t is important to remember that not all

who oppose the death penalty are subject

to removal for cause in capital cases

[because] those who firmly believe that

the death penalty is unjust may

nevertheless serve as jurors in capital

cases so long as they state clearly that

they are willing to temporarily set aside

their own beliefs in deference to the rule

of law.

29

Lockhart, 476 U.S. at 176. Though prospective jurors

present after death qualification may have voiced

disapproval of the death penalty, these prospective

jurors necessarily communicated that they could

fairly discharge their duty as capital jurors. After the

death qualification process, then, the legitimate

interest in compiling a jury that can follow the law is

no longer of concern.

In practice, however, “[t]he death qualification

process reveals a greater number of African

Americans who voice reservations about the death

penalty, giving prosecutors an ostensibly race-neutral

basis for removing them” at the peremptory stage.

Mona Lynch & Craig Haney, Death Qualification in

Black and White: Racialized Decision Making and

Death-Qualified Juries, 40 Law & Pol’y 148, 166-67

(2018). In other words, the capital context risks

endowing a prosecutor with an additional, potentially

pretextual, basis to exercise a peremptory strike

against a Black prospective juror who remains eligible

to serve after the death qualification process. While a

prospective juror’s negative views of or ambivalence

about the death penalty may in some instances be a

race-neutral justification for a peremptory strike, it

also very well may function as a pretextual basis to

strike Black prospective jurors but not White

prospective jurors. Cf. id. at 166 (“When they operate

in tandem, the process of death qualification and the

targeted use of peremptory challenges to eliminate

potential jurors with reservations about the death

penalty greatly increase the odds that capital juries

will be disproportionately (if not entirely) white.”). In

fact, that is precisely what happened in this case: The

prosecutor peremptorily struck a Black prospective

30

juror who had made it through death qualification,

purportedly because, in part, “he had no opinion on

the death penalty,” while not striking two White

jurors who had expressed the same view of the death

penalty. See Pet. Br. at 28 (citing JA1450-55, JA146267, JA1468-73).

These practical realities of capital jury selection

make scrupulous adherence to Batson all the more

important in capital cases. Mr. Pitchford’s case

illustrates the grave harms of ignoring this Court’s

clear dictates and calls upon this Court once again to

make clear that the Constitution forbids race

discrimination in jury selection.

CONCLUSION

For the foregoing reasons, and those stated by

Petitioner, the Court should reverse the Court of

Appeals and remand for the entry of judgment in

Petitioner’s favor.

31

Respectfully submitted,

CECILLIA D. WANG

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

425 CALIFORNIA STREET,

SUITE 700

SAN FRANCISCO, CA 94104

CASSANDRA STUBBS

CLAUDIA VAN WYK

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

201 W. MAIN ST.,

SUITE 402

DURHAM, NC 27701

MEGAN D. BYRNE

ARIJEET SENSHARMA

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

125 BROAD STREET,

FLOOR 18

NEW YORK, NY 10004

AYANNA D. HILL

BRENDAN HOPKINS

AMERICAN CIVIL

LIBERTIES UNION

OF MISSISSIPPI

P.O. BOX 2242

JACKSON, MS 39225

KATHERINE L. PRINGLE

Counsel of Record

STAN CHIUEH

JASON B. KOFFLER

FRIEDMAN KAPLAN

SEILER ADELMAN

& ROBBINS LLP

7 Times Square

New York, NY 10036

(212) 833-1100

kpringle@fklaw.com

Attorneys for

Amici Curiae

ROBERT S. CHANG

SHALEEN SHANBHAG

FRED. T. KOREMATSU

CENTER FOR LAW AND

EQUALITY

UC IRVINE SCHOOL OF

LAW

401 E. PELTASON DR.

IRVINE, CA 92697