Supreme Court ruling a win for colorblind jury selection 

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The U.S. Supreme Court ruled 5-4 last week to reverse the 2006 capital murder conviction of Terry Pitchford, a Black defendant in Mississippi, after a state prosecutor was found to use peremptory to exclude Black jurors in a county that’s 40% Black. Eleven white people sat on the12-person jury that convicted Pitchford and sentenced him to death.

The U.S. Supreme Court’s decision to throw out a Mississippi man’s conviction in a capital murder case struck a blow against racially exclusive juries – especially in the southern states like North Carolina.

Last week’s 5-4 decision in Pitchford v. Cain reversed the 2006 conviction of Terry Pitchford, a Black man who was charged in the 2004 murder of Reuben Britt, a white shopkeeper. Eric Bullins, a 16-year-old who shot and killed Britt, pleaded guilty and was sentenced to 20 years in prison. 

Pitchford, who was 18 at the time, went to trial in state court and was sentenced to death by a jury with one Black juror in a county where Black people account for 40% of the population. Pitchford v. Cain likely won’t result in widespread sentencing reversals but reinforces the high court’s support for jury diversity in capital cases, which historically have a disproportionate number of Black defendants who are sentenced to death.

“I think culturally it can have a lot of teeth,” said Noel Nickle, executive director of the NC Coalition for Alternatives to the Death Penalty. “What we do have is documentation of the tactics that North Carolina prosecutors have used over the years, and that have now been exposed. They had a cheat sheet to know exactly how they could use their preemptory strikes to eliminate black jurors without doing it blatantly, and so the Pitchford decision identifies, I think … one of the jurors was late or something like that. We have cases here in North Carolina where jurors were excluded because of what they wore, the way they responded to the questions asked by the attorneys as they were seating the jury. So, it’s no surprise that this has been how people have been sentenced to death. 

“What’s encouraging is that even Supreme Court justices that we might not have expected to join the majority decision get it that they too appreciate that this is not a jury of one’s peers, this is not an application of justice when the punishment is the most severe possible.”

North Carolina has 123 inmates on death row – the nation’s fifth largest – but hasn’t conducted an execution since Samuel Flippen was put to death by lethal injection in 2006. Since then, lawsuits over execution procedures and the Racial Justice Act – which has been repealed by the Republican-dominated General Assembly – stalled executions although there is no official moratorium.

The Supreme Court sided with Pitchford’s argument that the trial court didn’t analyze whether prosecutor Doug Evans violated the Constitution’s prohibition against racial bias in jury selection when he used preemptive challenges to disqualify four Black jurors. 

Justice Brett Kavanaugh wrote for the majority opinion joined by Chief Justice John Roberts, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. 

Kavanaugh, who was appointed to the court by President Donald Trump,  quoted a 2019 opinion in which the court threw out the conviction of Curtis Flowers, another Mississippi inmate who was also prosecuted by Evans, that acknowledged “‘America’s trial judges operate at the front lines of American justice’ and ‘the job of enforcing’” the court’s 1986 Batson v. Kentucky decision found the use of peremptory challenges to disqualify potential jurors based on race violates the Constitution. Kavanaugh wrote the Mississippi trial judge “erroneously omitted” a key element of the Batson ruling.

“Diverse juries are a key component of a fair justice system: they deliberate more thoroughly, consider the evidence more carefully, and are less likely to be influenced by racial bias,” Megan Byrne, senior staff attorney at the ACLU's Capital Punishment Project said in a statement. “Batson exists to help protect that ideal and serve as a safeguard against the exclusion of Black jurors, particularly in capital cases where jury pools are already less diverse because of death qualification. (The) decision properly recognizes that potential racial discrimination in jury selection deserves meaningful scrutiny and careful review. We are encouraged that the court has remanded Mr.

Pitchford’s case, and we hope the lower court will fully examine the evidence and ensure that Batson protections are meaningfully enforced.” 

Said Nickle: “This is at least encouraging, because the landscape here in North Carolina has not been friendly to Batson claims. We had an encouraging decision with Clegg in February of 2022 (the North Carolina Supreme Court voted 4-3 to overturn a robbery conviction after finding  prosecutors unconstitutionally discriminated against a Black juror) but then in December of ’23, it was a very disappointing decision (in State v. Tucker where the court ruled against a death row inmate who argued prosecutors disqualified Black jurors based on race). 

“More than half of the 123 people on North Carolina’s death row were sentenced by an all-white or a nearly all-white jury, and that doesn’t just happen by accident. That's intentional systemic racism at work in our courts, and so my hope is that the Pitchford v. Cain decision will lead the way for at least more awareness, if not judicial response to the systemically racist application of the death penalty in our state and all across the country.”

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