Pitchford v. Cain · ¶24

To try to overcome those problems with the Mississippi Supreme Court's waiver determination, the State asserts that Pitchford's defense counsel preserved a Batson objection but not a Batson pretext argument. That slices Batson way too thin. At that key point in the jury-selection process—after the prosecutor had asserted facially race-neutral reasons for the peremptory strikes—the Batson objection was a Batson pretext argument. In other words, defense counsel's rebuttal necessarily would include a pretext argument—specifically, that similarly situated white jurors were not challenged by the prosecutor. See Flowers, 588 U. S., at 301–302. If allowed to continue, Pitchford therefore could have argued that the prosecutor did not challenge white jurors similarly situated to the challenged black jurors, which is precisely what Pitchford's post-trial motion later did argue. In that post-trial…

preliminary print (page proof)
Source edition
Passage preview. Read in context for the complete text, notes and references.