Pitchford v. Cain: What a Batson Challenge Is, and Why the Jury Is Often Decided Before the First Witness

By Deandra Grant  |  Deandra Grant Law  |  Dallas, Texas

On May 28, 2026, the United States Supreme Court reversed the conviction and death sentence of Terry Pitchford, a Black man on Mississippi’s death row, ruling 5-4 that the state trial court never properly evaluated his claim that prosecutors had unconstitutionally struck black jurors at his 2006 trial. The opinion was written by Justice Brett Kavanaugh and joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson which is an unusual lineup that reflects how procedurally narrow the ruling is, and how serious the underlying problem was.

At Pitchford’s trial in Grenada County, Mississippi (a county that is roughly 40 percent black) the prosecutor used peremptory strikes against four of the five eligible Black potential jurors. The defense objected. The trial court never gave defense counsel a real opportunity to argue that the prosecutor’s stated reasons for those strikes were a pretext for racial discrimination. One black juror sat. Pitchford was convicted and sentenced to death.

There is a detail in the case the news coverage has largely buried, and it matters: the elected district attorney who tried Pitchford, Doug Evans, is the same prosecutor whose conduct the Supreme Court addressed in 2019 in Flowers v. Mississippi. In that case Justice Kavanaugh, writing for a 7-2 majority, threw out the conviction of Curtis Flowers after the State had tried him six times for the same offense, using its peremptory strikes against Black jurors in a discernible pattern. The trial judge in Pitchford’s case also presided over Flowers.

The doctrinal vehicle the Court used in both cases is forty years old and is one of the most important protections in American criminal procedure. It applies in every criminal case in every state — not just capital cases, not just Mississippi cases. It is called a Batson challenge, and a lot of clients and jurors have never heard of it.

What a Batson Challenge Is

In Batson v. Kentucky, decided in 1986, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids prosecutors from using peremptory strikes to remove potential jurors on the basis of race. The Court later extended Batson to strikes by criminal defendants, to civil cases, to gender, and to a wider set of protected characteristics. But the core idea is straightforward: race cannot be a reason to keep a person off a jury.

To understand why that ruling was necessary, it helps to understand what a peremptory strike is. In every criminal trial in Texas, both the prosecution and the defense get a set number of peremptory challenges which are strikes they can use to remove potential jurors without giving any reason. In a Texas misdemeanor case in county court, each side typically gets three peremptories; in a non-capital felony in district court, each side gets ten; in a capital felony, fifteen. These are separate from challenges for cause, which require a specific legal reason. Peremptories are powerful, because they let each side shape the jury based on instinct, experience, and judgment about who is likely to be receptive.

Before Batson, that power was effectively unchecked. A prosecutor could strike every black potential juror in a case and offer no reason at all, because that was the whole point of a peremptory. Batson changed that. After Batson, when a party is accused of striking a potential juror on the basis of race, the trial court must conduct a specific, three-step inquiry.

The Three Steps of a Batson Challenge

The three-step framework has been the law in every American courtroom since 1986. In a Texas trial, it looks like this:

• The prima facie showing. The objecting party (usually the defense) must point to facts suggesting that a peremptory strike was based on race. The bar at this step is intentionally low; the defendant does not have to prove discrimination, only show enough to raise a reasonable inference of it. Practices can support a prima facie case: a pattern of strikes against jurors of one race, the demographics of the venire compared to the demographics of the empaneled jury, the prosecutor’s questioning practices.
• The race-neutral explanation. Once the prima facie showing is made, the burden shifts to the party who exercised the strike to give a race-neutral reason for it. The reason does not have to be persuasive. It does not even have to be a good reason. It just has to be facially neutral. Common race-neutral explanations include things like a juror’s body language, lateness to court, a relative who has been arrested, a hesitation in answering, or a perceived attitude toward law enforcement.
• The pretext inquiry. This is the step the Supreme Court found was skipped in Pitchford’s case. Once the prosecutor has offered a race-neutral reason, the objecting party must have a meaningful opportunity to argue that the stated reason is a pretext to cover for the actual reason which was race. The trial court then has to decide, as a matter of fact, whether the stated reason is the real reason. This is the heart of the inquiry. It is also where Batson challenges most often live or die.

Step three is where the work happens. A skilled defense lawyer comparing the prosecutor’s stated reason for striking a black juror against the way the prosecutor treated similarly situated white jurors (jurors who were also late, also had a relative arrested, also gave a hesitant answer, but who were not struck) can show that the stated reason was not the real reason. That is the kind of comparative analysis Batson contemplates, and it is the kind of analysis the Pitchford trial court never let the defense do.

What the Supreme Court Actually Held in Pitchford

The narrow holding in Pitchford v. Cain is not that the strikes in Pitchford’s case were definitely racially motivated. The Court did not decide that. The narrow holding is that the trial court erred by failing to give defense counsel an opportunity to argue pretext at step three before ruling on the Batson objection and that the Mississippi Supreme Court’s later conclusion that Pitchford had “waived” his step-three argument by not making it was unreasonable, because counsel had repeatedly tried to make it and been cut off.

Justice Kavanaugh framed it bluntly. “After a prosecutor asserts race-neutral reasons for a peremptory strike,” he wrote, “the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons — that is, the reasons were pretextual. Then, the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual.” In Pitchford, whether “due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred.”

Justice Gorsuch, joined by Justices Thomas, Alito, and Barrett, dissented. The dissent emphasized the deferential standard federal courts apply on collateral review under the Antiterrorism and Effective Death Penalty Act of 1996 (the statute that governs federal habeas review of state convictions) and argued that, under that demanding standard, Pitchford had not shown the kind of unreasonable error AEDPA requires.

The 5-4 split is, therefore, not really about whether Batson matters. It is about how aggressively federal courts can second-guess state trial courts that handled Batson badly. That is a serious doctrinal question, and reasonable lawyers disagree about it. But the practical signal the majority sent is clear: a state trial court that skips step three of Batson cannot insulate that error behind a waiver finding the record does not support.

Why This Matters in a Texas Courtroom

Batson is not a death-penalty doctrine. It applies to every criminal jury trial: misdemeanor and felony, alcohol and drug, state and federal. The same three-step framework that the Supreme Court applied in Pitchford applies in every Texas county courthouse and every Texas district court. Texas appellate courts have built a substantial body of Batson case law over the last four decades, and the Texas Court of Criminal Appeals has treated Batson seriously.

That said, the realities of how Batson works in a busy criminal docket are worth being honest about:

• Most peremptory strikes are not challenged. Jury selection moves fast, the parties have a limited number of strikes, and a Batson objection takes time and creates friction.
• Step two is almost always cleared. The threshold for a race-neutral reason is so low that even thin explanations (body language, eye contact, a perceived lack of attention) satisfy it. The fight is almost always at step three.
• Comparative analysis is the most powerful tool the defense has at step three. Showing that the prosecutor accepted a white juror with the same characteristic the prosecutor used to strike a black juror is the most effective way to demonstrate pretext. Doing that well requires keeping careful notes throughout voir dire.
• Trial courts have a procedural duty. Pitchford’s most concrete lesson is that a trial court cannot simply rule on a Batson objection without giving the defense a real chance to argue pretext. A defense lawyer who is cut off should make a clear record of being cut off, on the record, before the venire is sworn.
• Preservation matters. A Batson claim that is not made cleanly and clearly at trial is vulnerable to a waiver finding on appeal. The right time to litigate a Batson issue is during jury selection, with the panel still in the room, before any juror is excused for good.

Why the Jury Matters Before Any Evidence Is Heard

There is a tendency, in talking about criminal trials, to treat the jury as a kind of neutral instrument (i.e. a set of fact-finders who will hear the evidence and decide the case). That is partially true. But every experienced trial lawyer knows that the composition of the jury is itself part of the case. A juror’s life experiences, professions, neighborhoods, attitudes toward law enforcement, and prior contact with the criminal justice system all shape how that jury will hear the evidence that follows. Jury selection is not preliminary. It is constitutive.

That is why the integrity of jury selection has been treated as a constitutional issue, not a procedural housekeeping question. As Justice Kavanaugh wrote, quoting his own opinion in Flowers: America’s trial judges “operate at the front lines of American justice” and the job of enforcing Batson “rests first and foremost with trial judges.” Pitchford is a reminder that when trial courts fall short of that responsibility, the consequences extend across decades and reach all the way to the Supreme Court.

It is also a reminder that the same elected prosecutor whose conduct the Court addressed in Flowers in 2019 is now responsible for a second reversal in Pitchford in 2026. Patterns are a feature of Batson litigation, not a coincidence. They are part of what step three is for.

What This Means If You Are Facing a Texas Jury

Most criminal cases that go to trial in Texas are tried to juries, and most of those juries are seated after a fast, sometimes chaotic voir dire process. The right to a jury that has been selected free of racial discrimination is one of the oldest and most clearly established rights in American criminal procedure. It is also one of the easiest to lose if your lawyer is not prepared to assert it, document it, and litigate it in real time.

A defendant cannot pick the jury. What a defendant can do is hire counsel who knows how voir dire actually works, who keeps the kind of notes that make a Batson record possible, and who is willing to make the objection (carefully, clearly, on the record) when the facts call for it. That is the difference, in some cases, between a verdict and a reversible error.

Pitchford v. Cain came out of a 2006 death-penalty trial in Mississippi. The principle it reaffirmed applies just as fully to a 2026 DWI trial in Dallas County, an assault trial in Tarrant County, or a drug case in McLennan County. The right to a fairly selected jury is the foundation everything else is built on.

Deandra Grant Law tries criminal cases throughout North and Central Texas. To discuss a pending case or upcoming trial, call (214) 225-7117 for a free, confidential consultation.