Mississippi Attorney General Lynn Fitch will appeal a judicial ruling ordering the state of Mississippi to re-try a death row inmate because a prosecutor deliberately struck Black jurors from the trial.
U.S. District Judge Michael P. Mills said he issued an order for a new trial because of former District Attorney Doug Evans' confirmed pattern of removing Black jurors to sway verdicts against Black defendants. Mills does not dispute that in 2004 defendant Terry Pitchford and his friend, Eric Bullins robbed Crossroads Grocery store in Grenada, resulting in the shooting death of store owner, Reuben Britt. However, the prosecutor’s infamous technique of ousting Black jurors without applying legal fail-safes demanded redress.
“The trial court, seemingly eager to proceed to the case itself, quickly deemed the reasons (for jettisoning Black jurors) as race-neutral and moved on. The trial court’s actions, perhaps understandable (and relatable to this Court), are error, nonetheless,” Mills said.
[T]his Court cannot ignore the notion that Pitchford was seemingly given no chance to rebut the State’s explanations and prove purposeful discrimination.” --U.S. District Judge Michael P. Mills
Following an elaborate process of juror strikes, Pitchford’s jury of 12 and two alternates consisted of 13 white people and just one Black person. The nearly all-white jury found Pitchford guilty of capital murder, and then later imposed a sentence of death by lethal injection.
Batson v. Kentucky is a federal court decision that expressly prohibits the use of peremptory strikes to remove people from juries because of their race, however. And it establishes a checklist of determiners to identify when prosecutors are resorting to the practice. This checklist includes:
1. Disparate treatment: The presence of unchallenged jurors of the opposite race who share a problematic characteristic that prosecutors used to target and dump minority jurors. (Expelling Black jurors for having a criminal record while retaining white jurors who share similar criminal records is an example of this.)
2. Insufficient vetting: This involves the failure to thoroughly explore jurors’ shared characteristics, including alleged “criminal records” with direct questioning of jurors and research to back up jurors’ answers.
3. Irrelevant strikes: tossing jurors over characteristics that are unrelated to the case. (Ousting a juror for being 15 minutes late or for having a history of depression is not a good reason to strike them.)
4. Lack of recorded support for stated reasons for striking jurors: If prosecutors say they want to strike a juror for living near the defendant and possibly having a relationship with them they must prove the relationship genuinely existed.
5. Group-based traits: A prosecutor can’t strike Black jurors on the assumption they’ll sympathize with a Black defendant or toss Spanish-speaking jurors just because the defendant or witnesses also speak Spanish.
Batson-related issues with Pitchford’s case were not invisible at the time of his trial. When Pitchford’s lawyer raised the Batson challenge back in 2004, the trial court asked the prosecution for its race-neutral reasons for striking potential jurors, Linda Ruth Lee, Christopher Tillmon, Patricia Tidwell, and Carlos Ward. The State claimed Tillmon and Tidwell both had brothers who were convicts, and removed Lee because she was late to court and allegedly suffered from mental illness. Carlos, they claimed, was “approximately the same age as the defendant,” and “they both have never been married,” as well as some speeding violations. Prosecutors wanted no juror to be in a position to relate to the defendant.
Judge Mills points out that the trial court, puzzlingly, deemed these reasons race-neutral, and then “full-stop ended its Batson analysis.”
Rather than turning to Pitchford and giving him the opportunity to rebut the reasons articulated by the State, the trial court immediately moved on to the juror selection conference. During appeal, Pitchford’s defense team even made the argument that some of the reasons prosecutors used to expel jurors could apply to white jurors that the court kept. Pitchford further pointed out that prosecutors struck four of five Black jurors, but only three of 35 white panelists.
At the time, Pitchford’s attorneys made sure to enter into the record that the jury did not reflect the 40 percent Black population of the county, and an accurate portrayal of Pitchford’s peers.
“Allow us to state into the record there is one of 12 – of 14 jurors—(who) are non-white, whereas this county is approximately, what, 40 percent?” said defense attorney Steiner.
“The county is 40 percent Black,” confirmed defense attorney Baum.
“I don’t know about the racial makeup, but I will note for the record there is one regular member of the panel that is Black, African-American race,” replied the judge.
“And only one,” Steiner said.
“Right,” agreed the judge, seemingly clueless to the problem. “There is one, period.”
“Right. Thank you,” said Steiner.
Mills argued in last month’s decision that the Batson requirement is “well-settled law that the trial court was bound to uphold and apply. Yet, it seemingly failed to conduct the third Batson inquiry.”
He said Pitchford raised his Batson challenge; the trial court asked the prosecution to submit its race-neutral reasons for the jury strikes, which they did, and then the trial court deemed all explanations well and good; and that was it, without pushback from the defense.
“[…] [T]his Court cannot ignore the notion that Pitchford was seemingly given no chance to rebut the State’s explanations and prove purposeful discrimination,” Mills said.
Black Girl Times (BGX) recently covered prosecutor Doug Evans’ infamy for striking Black jurors to nab a conviction. Evans, who worked for seven north Mississippi counties until late last year, used the same tactic to prosecute Curtis Flowers in the 1996 murder of four people in a Winona furniture store. Evans tried Flowers multiple times, striking five Black jurors from his first trial, five from the second, 15 from the third, 11 from the fourth and five from the sixth.
Even the conservative U.S. Supreme Court found Evans had improperly excluded Black jurors from Flowers' trial, and overturned Flowers’ conviction and death sentence. Supreme Court Justice Brett Kavanaugh called Evans’ behavior a “relentless, determined effort to rid the jury of Black individuals.”
Whether or not Pitchford will get a new trial depends on the outcome of Fitch’s appeal.
Adam Lynch is a reporter and editor. For tips, story ideas, or to pitch a freelance opportunity, email him at firstname.lastname@example.org.