[24-7351] Pitchford v. Cain

Mr. Chief Justice may please the court.

“In the selection of Terry Pitchford's capital jury in 2006,”

the trial court grasped and conducted just two of bats and three steps after the district attorney struck in succession for black citizens. Despite the state's assertions throughout the Red Brief,

Judge never determined the credibility of the prosecutor's step two

Prophors. Had the judge done what bats and demands in step three, the court would've considered from the vodier that single February morning. The prosecutor's absence of questioning about the issues and the Prophors lack of record support and a relevance to the case. What is more, proper credibility determinations would've concerned numerous

extreme bad faith findings against this district attorney, and two Mississippi Supreme Court capital reversals published in 2003 and 2000, which held this prosecutor had fabricated prior statements to impeach for witnesses who were black and enclosing argument espoused 14 discrete lies about the record.

Instead of abiding bats and Pitchford's trial court

to opening arguments, when the defense strained to be heard from before the jury's impalement, both about bats and an affair cross-action challenge, the judge assured her three times the bats and objections were preserved. Yet the Mississippi Supreme Court found that Pitchford's defense failed to rebut the Prophors and thus waived argument,

while deeming the merely race neutral Prophors as "exceptible," a pale substitute for bats and his demands, and a side step of the trial court's failure to determine the credibility of the four strikes. The trial court's unreactified failings in this prosecution, also riddled with other misconduct, yielded a jury selected with discriminatory

tank, which in turn condemned in 18-year-old who's a accomplice, according to the state's case, killed the shopkeeper in this botched robbery. We urge this court to reinforce the equal protection clause as guarantees for defendants, as well as citizens willing to accept the awesome responsibility of jury service.

I welcome the court's questions. I did trial counsel make those arguments. Mr. Justice Thomas, which arguments specifically? The trial counsel make the argument that the prosecution discriminatorially picked the jury for an exercise

perunctary strikes. Trial reasons you just stated? Justice Thomas, trial counsel made the objection timely. What was the objection? It was a bats' objection.

“And did trial counsel has the burden of demonstrating discrimination, right?”

Justice Thomas, that's correct. So did trial counsel do that? Justice Thomas, trial counsel attempted to engage that process, which entails three steps in burden shifting.

Unfortunately, the third step did not occur in this case,

notwithstanding trial counsel's effort. What do you mean by that? It didn't occur. The judge decided that it was race and neutral. Respectfully, Justice Thomas, yes, that's all the judge did.

But did the trial counsel offer an argument or evidence that the reasons offered by the prosecutor were pretextual? Justice Thomas, as the veneer was being released from the court, trial counsel sought to be heard on bats' and a fair cross-section issue. And was told by the trial judge repeatedly that her record was preserved.

But didn't trial counsel subsequently file an affidavit indicating that she did not raise these objections. Justice Thomas, yes, that's correct. Three years after the decision that's before the court now in state post-conviction, an affidavit supporting an ineffective assistance of post-conviction counsel, or trial counsel was authored, which she was very closely to decisions before the court.

Justice Meera is what was ruled by the state Supreme Court in 2010. What the transcript shows is that Mr. Steiner's what she said is, at some point, the defense is going to want to reserve both its bats in objection and a straight 14th Amendment racial discrimination. Was that objection raised later on?

“I mean, I think that's the preface to where you say three times the court set.”

You have that.

is going to want to reserve.

And the court's statements that it is you've already made it in the record. So I am of the opinion that it is in the record. Mr. Chief Justice, thank you for that question. It allows me to clarify the sort of the goalposts on this question under Mississippi procedure. When the veneers dismissed and the jury's in paneled,

the opportunity to challenge bats in essentially ends or does end. Of course, there are post-trial motion practice that can occur. So the relevant time for this to be addressed, which defense counsel was aware of,

“and that's why she strived to speak to that issue in a separate fair cross-section issue.”

When it was still relevant for the child courts decision. So I don't think that the defense counsel was seeking to sort of put a marker to be able to return to it because that was the point of no return for the judge. Well, but she did say at some point she's going to want to reserve. I just wonder if that's a source of some confusion for the judge,

or what we're supposed to do with that potential. Well, Mr. Chief Justice, I think if you see sort of as the colloquy goes down the page with, as you pointed to, it's clear in the record three times. But then the judge turns to reiterating his ruling, which again is merely a step too ruling as to race neutral findings.

And he says, "So there is no bats evaluation drawing a line under the bats and colloquy at that point and then shifting to the other issues, meaning that fair cross-section challenge I spoke of." Could we interpret at some point on the defense counsel as an indication that she was preparing or prepared to make the showing,

“and she was asking the court for the opportunity to do so?”

Just as Jackson, yes, I think that that is the fair reading and an unmistakable reading of this record. I mean, it does indicate that she was suggesting that she would like to do something. It wasn't as though she felt as though the bats and objection was already, or at least her arguments were perfected, and it sounds to me from the transcript that the trial court was cutting her off

was not giving her a chance. But maybe mistakenly saying that it already been done. Yes, just as Jackson, if I could pick up on that last point, I think the cold record here and it is the cold record we're working with, of course, indicates that if you look at page 168 and the J.A.

in terms of that initial colloquy when the bats and challenges raise and the Miller L is invoked, the judge is sort of reflecting a disorientation to what the bats and inquiry holds, which is three steps.

He is speaking to the race neutral proffers that correctly are the second step.

But he's unclear whether this goes to all of the stricken, the near members or just the black stricken, the near members on 168. So you fast forward to the proffers that are put forward by the prosecutor, and you see in rapid fire within a page the finding race neutral, race neutral, race neutral.

Let's return to striking the jury and the court instructs the defense to continue the prondry strikes. And so at the first moment, where there is an opportunity to speak to this, defense counsel returns to the issue and seeks to be heard on it. And as noted, is told three times in a row,

it's clear in the record and then a reiteration of the ruling. After the point that chief justice raised at some point, the court responded, you've already made it in the record. Some of the opinions in the record and then the defense counsel says, "I don't want to let the paneling go by without having those objections."

“And then the court says, "I think you've already made those and they are clear in the record”

for the reasons previously stated the court finds the reasons were race neutral."

So the continues on, I guess how we read that confusion is critical

to whether there's a waiver here or whether it was unreasonable to find a waiver here. So that's where I just has carbon on. And of course, that addresses the D2 considerations in the case and there are legal implications as well in terms of the mishandling of this. But reading that record and determining whether this is a reasonable determination that this defense counsel on this transcript had forefitted or failed to rebut

And so in the most trial motion that was made here, the jury was in paneled right after the exchange, the chief made, so there was no time to make a record there. In the post trial motion that was made by Petitioner's counsel,

“I believe she did raise that and challenge and she did raise the pretext argument directly, didn't she?”

Just a sort of my own, that's right and that's very salient because that is on this record

the first opportunity, meaningfully, to speak to the pretext question and comparison issue.

Once the judge decided to paneled the jury the only time really to raise it again was on post trial motions. That's correct, Your Honor. And she did, she said, the reasons were pretext given, I don't have the exact language, maybe you haven't memorized, but given the same,

the broad deal was similar, they gave answers similar to the general public, to the other people in the pool, correct? Yes, just a sort of mind. And that's drawing from questionnaire responses because there was no broad deal to speak of the strict individuals here.

Council, can I ask you how you think that the lawyer or the interchange, sorry, between council and the judge should have gone? One thing I find challenging in reading the transcript, it doesn't record pauses, right? It doesn't record seconds.

And so if we had a transcript here where the judge said, sit down, council, I don't want to hear anything more from you. That would be a lot clearer, right? But we're in D2, so the state's getting a lot of difference here. What do you think the judge should have gone?

Just as bear what we see commonplace in our courts is the court turning to the defense and offering the floor in some fashion. Agreed, we don't have a sort of an audio recording.

“We can't sense whether there's a pause here, but I think the context is really important.”

And this is a jury selection process with a volunteer that took about three hours. To put it in context, the Miller L case, obviously it's really important here. But you're not really answering my question. When she raised the objection, when she said she went on to preserve it for the record, all she had done at this point, you're right, there are three steps.

So she raised the bed's objection, the prosecutor advanced the race neutral reason, and she had the opportunity to impeach that reason essentially. Right?

Well, let's see, that would be the third step, which you're saying is that the judge cut her off before she reached that step, correct?

I understood the fair cross section point to be part of her effort to impeach, not just to distinct argument, am I understanding that wrong? Just to bear it, I'll point you to J161 through 163, where there is a submission of this fair cross section. She wasn't making that point also and referenced to the bats in. There's some overlap because of the general issue with the jury, but it's a discrete challenge.

And that shows up in the police brief and the ultimate discussion. Okay, so I guess here's my specific question. If you could tell me what you think the judge should have done, because she raises the objection, the prosecutor offers a race neutral reason. She does raise, I mean, she speaks up, so she's able to make this cross section point,

which goes to, you say, there's some overlap. Should the judge there have paused to, I mean, so is the idea here that the judge should have paused and said, "Do you have anything further to say to show that this was pre-textual?" Just as Brad, there are sort of two junks here within five, six pages of the J, they're important.

The first are after the race neutral determinations are made.

The court then immediately instructs the defense to start striking the jury with the panel that's in the box. So, after that's done and before the veneers dismissed, or as of veneers dismissed, the defense attorney returns to the issue and seeks.

“But did the defense attorney have an obligation to speak up even at that other point?”

And at the first point you're describing and say, this is why, I mean, usually we expect lawyers to assert their points to assert their objection. So I'm just wondering, does the judge have an obligation to stop an illicit response, or is it the defense counsel's burden to, because the defendant bears the burden of proving the vets and challenge, right?

Yes, Justice Barrett. In a situation where you have four strikes that are being addressed in succession, and the court elects to deal with the step two all in a row, it would be reasonable and certainly kind of the only way to encounter what's transpiring

to expect that step three will occur after that.

“But did defense counsel have an obligation to raise the point?”

The court has an obligation to conduct step three in the first place.

The burden of persuasion remains with the defense counsel throughout all this, but it also co-exist with a parallel duty that the trial court has to make its determination, or are you returning to the argument, which was addressed? The fifth circuit got to this point that you're saying that the trial court made no determination about whether there was a bat's in finding? Yes, Justice Barrett, that's just a record of flags, yeah?

I think if you look at Perkit Hernandez and Schiner, they answer Justice Barrett's question in that the obligation is on the trial judge to make a finding on step three, correct? Yes. To clarify though, I agree with that. I was just talking about the argument about that.

“Yes, my follow-up to that was, I think what you're saying given the transcript is,”

I think the judge believed he only had to find a race neutral reason because he says that at the very beginning of this process, he says, "All I have at times, a lot of times on batsin, I just have the stake give race neutral. I'm assuming he met great neutral reasons as to all." And she says, "I think that jurisprudence simply states the court must make a determination on the basis of all the relevant circumstances

to racial discrimination." The judge then says, "I'll have the stake give race neutral reasons." And after each race neutral reason is given, he then asks for the next one,

and the next one, and the next one, and I think your point is he never pauses

to give her a chance to address pretext, correct? Right, Justice Barrett. Or for him to make the required third step finding. This is an exchange between the prosecutor and the trial court for all four of the step two steps. Mr. Perkovich, what happened here is certainly not a model to be followed in future cases. But I wonder if you would agree that in interpreting this transcript,

we can take into account the way defense counsel generally behave in a situation like this. Justice Alito, if you could clarify that question of defense counsel general behavior. Well, this is the most timid and redicent defense counsel that I have encountered. Any cognitive defense attorney that I knew would have spoken up, let's take this example. This is on 169, during number 30, the prosecutor was called upon to give his race neutral reasons.

He says, "She has mental problems according to police captain." If had numerous calls to her house and said she obviously has mental problems. And then the court says that would be race neutral as to that juror. And nothing is said, with respect to all of these jurors, all the defense counsel I have known would be standing up and say, "You're honored, that's a pretext and so forth and so on to make clear that the point is driven across to the trial judge."

I don't understand what happened here unless, well, anyway, I don't understand it. Well, Justice Alito, I think the fact that this is sort of a two-person conversation very clearly from the record and that these strikes were clustered, reflected what was going on in that courtroom with the judge, just addressing the steps in succession.

I think the reason for expectation is that defense was going to be heard, and that third step just did not happen, rather the court instructed her to strike her panel.

And she returned to this once there was that opportunity that we've already discussed. Yeah, but I know, you know, trial lawyers have to have a certain amount of toughness, and she had every opportunity. And on the judge didn't handle this way, it should have been handled.

“The judge should have said, "Okay, that's your reason defense counsel, what do you have to say if anything?"”

That's what should have been done, but really, she had every opportunity to make her point, and she didn't.

Justice Alito didn't get to that kind of pitch, certainly.

However, the way this rush process occurred throughout the whole morning culminating in the strikes. As I was starting to answer Justice Barrett, in context, the Miller L. Vodier took five weeks with the veneer that was 108 people as opposed to 96.

“So, the rush nature of this, I think, informs how we make sense of this record, another example of how rush this was, because I think the judge was very sensitive to the sequestered jury's hardship.”

The liability phase ended a day earlier than expected, and afterward, counsel sought to have a continuance of a day because their single expert was subpoenaed in Texas. The judge denied that, and forced counsel to proceed without their single witness. I appreciate all of that. I understand this was not a model by anybody's stretch of imagination, but I didn't see where the defense counsel even mentioned the word pretext to the court anywhere in the transcript until after trial. And given that, I could somebody read this as saying, "I don't have a pretext argument."

You know, I mean, we're on this colleague's emphasized one under D2, so we're not asking "Did she wave?" We're asking whether the Mississippi Supreme Court could reason of any reasonable jurist could reasonably conclude that she waved the argument by not mentioning even the word. How do we get help with that? There's a fair amount to unpack their justice course, which I'll try with the waiver question as sort of the end of this process. So before that is a finding determination from the Supreme Court that there was a failure to robot.

And again, the effort is to be heard. The response from the court is, this is clear in the record, and then the lines drawn under bats in, and a shift is to the other issues. So the moment of truth for that was then, and it's just a sort of more pointed out in the motion for new trial, that was the first sort of opportunity in terms of the basic procedure here to speak to that, which was done.

Now, the D2 point is critical here, but also there's a D1 implication in this breakdown.

“Well, I'll help me with the D2, because that's what I'm struggling with at the moment.”

We have to decide whether the Mississippi Supreme Court made an unreasonable determination of fact. The determination of fact here is that she waved really more accurately forfeited. But it's her burden. We all agree on that to raise pretext. She didn't raise pretext at all. Well, just as much. If I may, so there is a burden of persuasion that sticks with the challenger, the opponent of the strike, and that's the defendant.

There's also a duty that the court has, and that's first and foremost here.

She did that. And that duty is twofold, and that is to make a determination. You're respective of what's pressed by the advocate. And so there is a parallel sort of decoupling of it.

“That is really, you wouldn't find no bad some violation if there is no pretext argument made, right?”

No, actually the cases are quite clear. If the plaintiff says, sorry, the defendant's lawyer says, I don't have a pretext argument, your honor. Well, that would be, then there's no finding required on pretext, right? No, your honor actually has a violation, wouldn't you? The burner persuasions with the opponent of the strike clearly, and the strike effectively expressly waves. And that scenario, the question we have, we have step one. Step two comes, the government's lawyer comes up with race neutral reasons.

Step three, suppose the fence lawyer says, I have no pretext argument here on it. Since the inquiry is made to the step three, the trial court still has a duty. I'm sure it's in no bad some violation, it is in the duty to look at the totality of the circumstances to determine whether or not the defendant has carried their ultimate burden of the term of establishing discrimination. So it may be, it may be that with respect to that particular aspect of the back and forth, the defense counsel doesn't have an argument or they say I don't have an argument, but that I think is not the sum total of the courts obligation.

To rule on the bats and objection, the defense counsel didn't withdraw the bats and objection. They just didn't make any argument with respect to pretext.

You said, I find a violation, now maybe that's wrong, and I acknowledge it, it's a muddled record, but he didn't say I find a bats and violation at the end of it.

Now maybe that's insufficient, but that's not what's before us, what's before us was there was there waver, and help me with the deed, help me with the deed to say I really want some help on that. The key thing here is that his understanding from this record is of two steps. In other words, the equation is race neutral equals no bats and violation. Completely aligns the duty he has to do two things, right. Once the case shifts to step three, the court has to afford an opportunity for the ultimate burden of persuasion to be met.

And make a determination whatever is said in pressing that burden of persuasion. Those things exist in parallel because the protection clause is implicated here because there are concerns that are greater than the defendants, the strict and veneer member, the public centrist, and so all of that was jettisoned here.

“And I think it's simply because he was unaware of it, at least in this trial. Thank you.”

Thank you, council. Justice Thomas anything further? Justice Gorsuch asked you what would happen if the defense council said I have no pretext, no refutation, no argument on pretext.

And you said that there was more that the court was required to do in making determination. What exactly is that? What do you mean by that?

So your honor, it's incumbent on the trial court to assess what is before the court is before the court. There's you've got the initial assertion, you've got the race neutral from the prosecutor, and you haven't brought a defense counsel who says I have nothing. So what else is there? Justice Thomas, you have a prosecutor who failed to question on the reasons that he put forward as his proffers for these strikes. And were those challenged by the, as were those challenged by the defense council as pretext do.

As we've discussed Justice Thomas, she did not speak to it after the step two proffers, and that's one of the failings in this record. There was not an opportunity after the step two proffers were made and before the bats and challenges were overruled to speak to that. So you used Miller L, which brings back a lot of bad memories. Sorry, you used Miller L as your model, but didn't the defense counsel there challenge the race neutral assertions. Justice Thomas, there is a radically different record in Miller L from here.

Now just that the only portion I'm interested in is whether or not the defense counsel may, whether or not defense counsel there argued that this was pretext. And Miller L, there were, there were days of opportunity to address each of the strikes. There was individual vodier of each of the stricken members. There was a bats and hearing held dedicated to this whole inquiry.

“Is that because the defense counsel challenged each of the strikes?”

Well, no more than was done here, your honor.

There's no question that the bats and challenge for the four strikes in question here was timely, never way, never withdrawn.

I mean, we're focused on these strikes, did the defense counsel make strikes, preemptory strikes? No, your honor. And one reason for that is because, well, did it, I misspoke, I misspoke, please. Bear with me. No, they did, they certainly did.

And how many? I believe it was 11. And what were the races of those who were stricken?

“I believe they were white, and you have to also realize that the veneer was white”

for the balance of the strikes that they exercised. So there was no one. And how many were stricken by the prosecutor? Seven? And how many?

What was the racial breakdown? Three to four. Justice Alino? Well, I want to understand exactly what you think has to happen in a situation like this.

The prosecutor, and says, what is your reason?

“I think the premonition case has been made, what is your reason?”

The prosecutor provides a reason that's brace neutral. And is a reason that almost every prosecutor would find it a good reason for a preemptory strike. The preemptory strike in a juror, such as here, one of the jurors. He has a brother that has been convicted of manslaughter. And considering that this is a murder case, I don't want anyone on the jury that has relatives convicted of similar offenses.

So seems legitimate on his face now, maybe it's not. But, and so then the trial judge turns the defense counsel and says defense counsel. Anything to say and defense counsel says nothing to say. Now, what about there?

And then the judge goes on.

Is that, is that, is that a bad violation? Just as a leader on that hypothetical where the court actually turns and solicits input. That would probably be a waiver on that scenario. What I want to point to with respect to the proffers and, you know, family members listed in the questionnaires as implicated in the criminal legal system. The important thing to keep the mind here is that if that was a sincere concern, it would strongly suggest there would be questioning about that.

Because not only are the the various strict and veneer members implicated in that regard. I understand all that.

“Did defense counsel have the opportunity to question these witnesses?”

I mean these jurors. Yes, sir. I know who are dear. So, the defense counsel could say, well, look, he's been very, you know, he's happy to have these white jurors who have similar records. Then the judge has to make a finding.

But if the defense counsel doesn't say anything. Just as the leader there was the judge supposed to do. Just as the leader might, my response to your last question was there was questioning during the group plot year. There was no questioning at that point after the proffers were made. And again, very legitimate concern and principle implications in the criminal legal system.

However, if that's a sincere concern, there's going to be questioning about it. And I think if we look at Miller L, there's a classic example of why. And that is with the field strike in Miller L. I understand.

“But your argument is that even in the example that I gave you where the judge says defense counsel, do you have anything to say about this?”

And defense counsel says, no, nothing to say that that is not there could still be a violation. No, I'm competing that. Your honor. So that's the question is how do we interpret this record? Suppose that the judge doesn't actually say that, which the judge should.

But suppose defense counsel is just as barrel was hypothesizing could happen in some case. Or, you know, defense counsel wouldn't. And nothing is said or there's a pause. And nothing is said then what? Well, if there's a pause and nothing is said, then that's a different record from what we have.

To return to the sort of these legitimate, seeming, race, neutral reasons. Again, the disinterest and questioning on any of the reasons they're offered there is been repeatedly recognized by this court. As denoting a sham. In fact, that's language and Miller L N Snyder as well. And so, you know, it's not that that's not a principal legitimate reason.

It's that it's not explored because often when it is explored what comes to light in that process is that the family member really has no connection to the situation. And it's not disquieting for the prosecution. It wouldn't use it as a as a reason to force.

Yeah, but that always triggered by defense counsel standing up and saying, "You're on or I've checked that pretext, the prosecutor has not applied that role to wait jurors."

Well, now that was required. Justice Alid, I'm referring to the duty that the court has whatever is advanced in terms of the burden of persuasion that the opponent has. It still has to be aware of what has transpired in his court room and what has come forward in vodier. What has not come forward in vodier in terms of questioning. The irrelevance of the proffers to the case, the absence of record basis.

You have proffers here. Mental problems. Drug problems. There's nothing in the record on that. And so the court just takes that on face value.

And that's not the job. The job is to consider all the circumstances and to discredit proffers that are put forward without the basis and the record. None of that. That's the prosecutor says I'm striking this drawer because she has mental problems. And defense counsel says nothing in response.

The trial judge has to say, "Well, wait a minute.

They've been to our house many times.

“We have to have the police captain come in here.”

Even though defense counsel says one word, we have to have the police captain come here and question. Or the officers who made the visits to the house.

Just as a leader, those officers were in the courtroom under subpoena first.

And again, I return to the faculty. I don't want to prolong this. I'm just trying to understand what you think had to happen here. Your first answer was, if defense counsel says nothing, this is my understanding of your first answer. The defense counsel says nothing.

Nothing to say your honor. The judge can simply say, "Okay, fine. I find that it's not a racially based child." Just as a leader, as I've been trying to advance, there still is this duty for the court to consider all the circumstances.

Very non-racial animosity in this record. And to make an assessment, whatever is advanced here. And obviously, our cardinal sort of point here is that on this record, you have a defense counsel seeking to be heard on this. And the response from the court is your cases in the record.

And I'm going to reiterate my feeling. I understand that. Okay. And just as so to me, I'm going back to that point. What's clear from the record here is as soon as he exercises and challenge against the woman

with mental problems, the prosecutor then says the next year, during number three. She was your number two. And the court interrupts and says that would be a race neutral, again, reason, as to that juror, meaning the mental juror.

And the prosecutor immediately goes to S3. So there's no pause there. No pause between the four jurors and the race neutral reasons. So there's no chance for the defense attorney to say anything, correct? That's right.

Now, you get to juror number four, the same pattern. I'm sorry, juror number five. And then he gets to the last juror that's being discussed in race neutral reasons.

“And immediately says to her, you have to start with jury selection.”

That's right. Then there's no pause to say, do you have a response? When you're saying to Justice Alito that defense counsel should have asked questions of the jurors,

she was never given an opportunity, you're saying, because the prosecutor never did any of these jurors.

So she had no way of knowing that any of these things bothered the prosecutor, correct? That's right, Justice Alito. As I pointed out earlier, the proffers were not questioned. So the only questioning that this prosecutor did of consequence was to do death qualification, which resulted in the decimation of black veneer. So you have a concentration of questioning, J.A. 95 to 104, where in rapid succession he's questioning,

I think 37 different veneer members, 28 of them black, two illicit responses that lead to cause strikes. That's the level of questioning that's going on in the record. There's essentially no individual veneer at all. There are six individuals who are questioned near the end of veneer,

and it transpires in a whole state. The defense counsel can't be faulted for not knowing what the prosecutor was worried about. I'm asking questions. Now, going to the question that at no point did the Justice say, did the judge here say, "I'm doing step three in any way, that these were not pretexts or that I find them to be both race neutral and not race-based, correct?"

That's correct. Now, that's your prong one, and Justice Gorsuch asked, I think was asking you whether the judge made an implicit finding.

“The only way to place, I find that potentially is where he says,”

"For the reasons previously stated, first the court finds there to be no well,

all the reasons were race neutral as to members that were struck by the district attorney's office. And so the court finds there to be no battle violation. That's not an implicit finding on step three, because he's still relying simply on step on the race neutrality, correct?" Yes, Justice Gorsuch.

So there's not even an implicit battle finding on step three.

And as I've tried to emphasize, there is a very big difference between race neutral and credible.

“And that court has to make a credibility finding.”

No matter what else happens in that courtroom. Justice Gorsuch. Justice Gorsuch. Just on Justice Thomas and Justice Gorsuch's questions. If the trial judge had said, "Do you have any response?"

So they'd said, "We have no pretext argument." That's the central equivalent of withdrawing the bats in objection. That's my view. But when happened here, I gather your position is in what judge mills the district judge and the habeas case found was. Judge Mills said, "Perhaps pitchford's counsel should have been more assertive."

But the court will not fault them for failing to present specific arguments on pretext when the trial court appeared to have been resolute. And it's brusk determination that no violation had occurred.

In other words, there was never an opportunity.

Now, the questions, whether that, whether what happened in the trial court was an unreasonable, whether it's unreasonable defined waiver, I guess, or how do you analyze the trial record. But the point is not that the trial counsel said, "Oh, I have no pretext argument." Correct? Would you distinguish those two things?

Yes, Justice Kavanaugh.

“So what we have is trial counsel is seeking to be heard, right?”

Court's too late as the veneers being dismissed, exiting the courtroom, the jury's about to be in panel. That's when she's seeking to be heard and she's rebuffed three times, but it's in the record. It's clear in the record, there is no bats in violation, and let's turn to the other issues, the fair cross section issue.

So she's striving to be heard, and then ultimately she's reasonably relying on the court saying, "It's in the record."

And this is in the context where she raises Miller L, which had been decided about six months before this trial, where it clearly, the ability to press a case on a pellet review was the letter of the day. So she's relying on what the trial court is saying, that this issue is over, and the trial is moving forward, and opening an argument is going to happen in a moment. What do you think about the Judge Mills common perhaps pitchford's counsel should have been more assertive?

“I think that first that's not unfair criticism, we've all seen records where there's more hurly, burly, let's say, and elbowing.”

But the point is that she timely raised the objection, that's her duty, there's not a continuing objection requirement, there aren't authority supporting that. And she sought to be heard before it was too late, and then at the next moment, as just a set of my own pointed out, where she could address these issues in the motion for new trial, that was done. So it was for purpose in terms of the motion for new trial. So if the Judge was actually concerned about these issues, he had an opportunity to take the case back before it was up on a peel. Thank you. Does this bear?

A few clarifying questions. Excuse me about your position. All right, you're not, are you asking us to revisit Ford, and so far as it said, that a state has the flexibility to adopt procedural rules for the assertion of bats and objections? Justice Barrett, certainly no, that I would point out as Dick though, if Ford was a case where. So you are asking us to say something different, or do you agree that states have the right to come up with rules of forefature even for bats and objections? Justice Barrett certainly, the implementations left to the states, and as we've seen in Johnson versus California where there was a step one issue that California had, there can be problems in that.

And what we have here with respect to step three, and this particular ruling on on waiver and the failure to rub out being the predicate for that is an example of. For the implementation, but you're not challenging the state's ability to set forefature rules and to say that if you don't make a timely objection, you forfeited it. I mean, I'm asking you as a general rule, I understand your argument that she wasn't given a fair opportunity here. I'm not asking about that right now. I'm just saying you don't disagree to you with the fundamental proposition that a state can establish procedural rules requiring the timely assertion of bats and objections.

Justice Barrett, the last formulation you gave, I would agree with, sir. You would agree with that great. But very last formulation though. Okay, thanks. The other question I have, it's a little bit difficult to tell at some point, sir, your brief. I read your brief to maybe be taking the position that an appellate court has an obligation to conduct the bats and a challenge.

Analysis?

“Well, I think the first point here is that the understanding of its own law for bats and was that it could not, right?”

And that it was unable to consider arguments pressed for the first time on appeal, especially in a context where the first opportunity to do that was on appeal.

That's a problem. And so it's that fundamental misunderstanding of this court's law in that basic gateway role at the outset of the appeal that is the first question. So what is your position that an appellate court has the discretion and should understand itself to have the discretion to consider it for the first time on appeal, but not an obligation to do it? Justice Barrett, this court's holdings have relied repeatedly on comparison that's been pressed in the first place on appeal. And but is it an obligation or do you just have the discretion?

Just just pick one. Just as Barrett, I'll pick discretion. With the caveat though, that the language of this court is a must. All right, if we want to. So is it obligation or discretion?

Must sounds like obligation. It's just not how I read our precedents. Right. So you're asking for us to take those precedents.

“If there's any ambiguity in the precedents who take them a step farther and to say there's an obligation?”

I think that the precedents have to be surmised from what the court is doing and how it's getting to the results. In terms of the holding for clearly established law. And what the court has done routinely is take argument, comparative analysis that's really not viable in most trial settings.

And here that, on appeal in the first instance, because of the concerns I was speaking to earlier.

Okay, so do you think we have what we need if we were to conduct that comparative analysis now to find about some violation now? I think, unfortunately, that was the ball game for the state Supreme Court. And they elected not to do that. They had, in that fork in the road, they could have taken what was submitted on appeal and make a mayor's decision. So there was a sufficient evidence in the record on the comparative juror point, comparative juror analysis.

There was it's your position that the record is there. And the Mississippi Supreme Court could have based on the record before it. Or that we could now say that there was a bats in violation based on what was introduced about comparative juror analysis on appeal. Justice Barrett. Yes, it was incumbent on the Supreme Court to take that comparison analysis or remanded to the trial court to conduct.

But is it your position that that comparative juror analysis is sufficient that it was there? And the Mississippi Supreme Court had what it needed to find a bats in violation based on what you had. Yes, Justice Barrett. And the court had done just that in other cases. Thank you. Justice Jackson.

So I'd like to get your reaction to what I hear your argument as and I just want to make sure I have got it straight. That the making of a bats in objection at the beginning of this process actually triggers duties on both parties, parts and the courts part. So obviously you make the objection and then we say it's step one. The defense council has the duty to establish whatever the prime of face cases. The burden then shifts the duty becomes the states to offer race, neutral, non-discriminatory reasons.

And then ultimately there is a duty of the court to actually resolve the objection.

So the initial bats in objection. So to the extent that people have asked what was supposed to happen here. I suppose if we're in a world that Justice Thomas posits the defense council when we get to step three. The trial court says council and the defense council says you're on her. I have no argument on pretext.

“Well, first of all, you would I think expect the court to say, so are you withdrawing your bats in objection council?”

I mean, Justice Kavanaugh says well that's sort of implicit, but I think the court because it has a duty to resolve the objection has to be clear about whether this thing is still on the table once council. Affirmatively says I don't have any pretext evidence. So right there we have a problem with the court not clarifying whether this objection is still live. In the world of even asking, but in the world of not asking. One not asking the defense council whether there's any pretext evidence.

You would still have the court have to resolve the objection, right?

And seeing no basis in this record for determining that the prosecutors race neutral reasons were contextual.

“I find that there is no race discrimination or whatnot, right?”

Like the court has to make a finding that indicates that it's actually resolving the objection on the basis of all of the evidence presented after all of the steps. And it seems to me that there's kind of like a problem here, the lack of clarity is a problem for the court because it suggests that the court did not fulfill all of its obligations triggered by the initial bats in objection. Is that, comport with sort of what you're trying to say at least about what the court's duties were here? Yes, Justice Jackson, again, Council has a duty to press the case in the ultimate duty or burden of persuasion, but that simultaneous with the duty that by the time this gets to step three in the burden framework, it remains with the court to do the things that you've outlined.

And the court can say there's not evidence that there's discrimination here, you haven't presented anything, et cetera. But here we have a court that's seeming to keep the defendant from making her presentation, so I don't understand how it could hit the court could have fulfilled its obligation to look at all the evidence if it is prevented, essentially one party from presenting. Let me just ask you another final question. I see this also as possibly a very short opinion. When we look at what Mississippi's Supreme Court said, it would go something like pitchford's trial counsel made a bats an objection and re-raised it multiple times.

Each time the trial judge reassured her that it was preserved, never the last Mississippi Supreme Court said it was waived.

“That's unreasonable, the end. What would be wrong with that?”

Not anything I can think of. I mean we could say more because with respect to D2 obviously there is a breakdown in that fact determination that becomes a waiver under the Mississippi rule. With respect to D1, another way to look at this is this is a case that I don't think this court has seen where it just sort of falls off the ledge at step two. And so that's a D1 failing categorically. There's this an absence of that step being taken for the reasons you've outlined. Thank you. Thank you council.

Mr. Stewart?

“Mr. Chief Justice and may it please the court. In flowers versus Mississippi this court faces an extraordinary case and ruled against the state.”

This case is also extraordinary but in a very different way that requires a very different result. Start with the facts and D2. Auditioner claims that the state Supreme Court was objectively unreasonable in finding that he waived his pretext arguments as petitioner once admitted that is wrong. Years ago, petitioner declared that he failed to quote properly challenge, litigate, and preserve and quote his pretext arguments. Auditioner also now claims that the trial judge thwarted his efforts to argue pretext years ago he said the opposite. He declared that he quote made no attempt to rebut or otherwise offer argument or evidence and quote on pretext.

Short petitioner wants to clear that the facts are x. He now declares that it is objectively unreasonable to find the facts are x. That is extraordinary. Now take the law. In Ford versus Georgia this court ruled that lower courts can adopt timely preservation rules to implement batson. Many courts have done that and adopted a waive rule like the one applied here.

Partitioner ignores Ford versus Georgia. He never cites at once and he asked his court to declare that a rule adopted by most federal courts of appeals is not just wrong but objectively unreasonable.

That is extraordinary. Partitioner also claims that the state trial judge failed to conduct step three of batson. That was the core of his presentation this morning. That defies with the trial judge said and once again defies with petitioner has said years ago petitioner agreed that the trial judge conducted step three. On direct appeal he declared in his reply brief that the judge quote made a final ruling of non-discrimination. That is step three that is page 484 of the joint appendix. He then ties that in a footnote to the same page as we cite here for that finding.

As I said when I began this case is extraordinary. Partitioner has conceded all that is central to his claim. Never has this grant of relief under Ed Poe when a habeas petitioner has so decisively doomed his own case.

This case should not be the first. I welcome the courts questions.

The council as arguing that notwithstanding what the defense council failed to do the judge had a more active or more robust role to play.

No case of this course says that no holding a discourt clearly established is that justice. This course courts cases say is that step three of batson the trial judge. If it reaches that stage must make a finding on purposeful discrimination whether the defendant has carried his burden. The judge did that here.

The council also argues or at least uses Miller L as a model. What is your reaction to what he said about Miller L and what it requires.

Miller L requires really no more than on federal habeas review state courts cannot make factual rulings that are objectively unreasonable. That's all Miller L decided. He didn't reach the validity of a state procedural rule. He didn't rely or site or overall or even touch Ford versus Georgia. Didn't reach any of those things at all. You would petitioner here have preserved on the Mississippi law. The would not have waved these claims on the Mississippi law.

“I think it would have been quite easy justice Thomas. I mean he could have said for each of these challenges it would have just been two or three sentences.”

Perhaps for Mr. Tillman just one sentence. I mean for Miss Lee who was late he could have said you're on or I mean other jurors were late you just refused to strike or for cause and there's no evidence of mental problems that should be explored. That would have preserved an unlocked the panoply of arguments that he later made about her in comparisons on appeal. He could have easily done that.

But didn't the court say it was preserved? I mean she was obviously saying I would like to make my record with respect to the bads and observations.

So the chief just just points out she says at some point I would like to do that. So you just articulated the kind of thing you would have expected her to say and I'm trying to figure out when she was supposed to be or given when she was supposed to have that opportunity. Sure it page 169 page 170 at 175 176 she could have said that anywhere there you're on. When when the objections were happening. Oh yes.

“Did she have to could she have done it after all of those objections were lodged?”

Sure she just had she had to do that but when she went to do that when she tried to do that she said at some point I'd like to do that.

And the court said you've already done it. So who's mistake is that? He did not say you've already done that just as Jackson what he said was you preserved your bats in objection. He said I said I think you've already made those and they're clear in the record and that's after this. Another sense where she adds she doesn't just say at some point she then says I don't want to let the paneling the jury go by without having those objections.

And the court says I think you already made those and they are clear in the record for the reasons previously stated. The court finds there to be no well all the reasons were race neutral as the members that were struck by the district attorney's office. And so the court finds there to be no bats in violation. Right. She's trying to make the objections right there and he says you already made them and there's no bats in violation and he makes a legal error in the course of that by saying because the race neutral.

There's no bats in violation which of course is not the correct incorrect. I think you would acknowledge. I think so two responses. So right there she's trying I think I mean she could have been more served judge mills. So you're opening like was was forceful judge mills is a very experienced district judge. He'd been a former Mississippi Supreme Court justice he knows what he's doing he read the record entirely differently than you did.

And he pointed to this this this part right here where she's trying I think we weren't there we don't have an audio recording to to make the objections and and the court says you already made those clear and the court finds there to be no bats in violation. I don't know at that point you could have said what you're wrong judge. I get that and Justice Alito is a good good points on that but seems pretty clear at that point. John I mean she preserved her objection she didn't preserve the pretext arguments which are different than making a prime a face a case or the objection itself.

Comparative juror arguments are very different in response to the state's reasons than simply making a prime a face a case and she didn't raise those. You don't think at that moment right there she's not prepared to do that. I mean not at all your I mean the very next page on page one. He says there's no bats in violation per se I don't know I mean that's where judge mills says perhaps she could have been more.

“I take that point and that's why this is hard.”

Well I think in this would get back to I think you know you you think framed it correctly earlier Justice Cavana where you say you look is it objectively unreasonable is the two met and I think the ways we know that are you know number of them first of all. Ms. Steiner speaks only from page 158 to 176 of the transfer during that time she at least five times inserts arguments or objections without any prompting by the trial court. There's this talk about are there pauses in the trial court there are no indication of pauses in here yet five separate times in addition all the arguments she make she inserts herself

I close the point by noting a page 176 that the judge then did allow her to state the composition of the jury for assertions about the composition of accounting.

And you know so she had an opportunity to add more and that's all she added was bear numbers then we look at the post trial motion even when she had days and days. All she came up with and this was belatedly it was the amended motion for a new trial belatedly comes up with one sentence that points the judge to nothing about these comparison.

“I mean I think you've made the point that she didn't do very well you know that she could have done a lot better than she did.”

But that's really not the question before us the question is whether she's waived her objection and three times she's told by the court that the objection has been preserved. So you're right general she should have said a lot more stuff she should have been more assertive.

But the only question before us is did she waive her objection when three times she's told by the court your objection is in the record I hear you and that this is critical justice taken.

The Mississippi Supreme Court did not hold that her objection was waived it held that her pretext arguments were waived it. That's the case in the balloony very. It's not just in case the general Stuart my policy here we are after the prosecutor has done all his here's my race don't you reason here's my race don't you reason and then the defense council says. I'm not persuaded I need to you know I need to say something about this I still have an objection well at that point of course she's objecting to the ultimate finding.

I mean she's after the prosecutor has given all his race neutral reasons and she's still objecting so what could she be objecting to with that point. She must be objecting to the fact that either the race neutral reasons aren't credible or there you know there's where their their protect tool that's what she's objecting to but there's no other way to read the context of this colloquy without saying that at that point she's objecting she's saying what the prosecutor gave you wasn't enough. I agree that she is maintaining her bats in objection your honor I don't agree about the comparative juror pretext arguments that she made no suggestion of making despite many opportunities to.

I think you're arguing this on the merits I think you're saying she didn't say enough to allow the court to find for her but that's not the question before us the question before us is whether this the state supreme court. Right when it said she waved her argument she might not have presented a good argument but she didn't wave her argument. In respectfully justice taken the Mississippi Supreme Court didn't say she waved the argument writ large said she waved the pretext arguments that she never presented to the trial judge and that's critically different.

Justice graves in descent my friend and his favorite federal heaviest petition agreed that the Mississippi Supreme Court resolved the claim on the merits it held that the bats in pretext arguments the comparative juror arguments that she had never made to the trial judge.

“That's what she waged. Well that's what she failed. We'll just follow up on Justice Cagan's questions after the prosecutor gives the asserted race neutral reasons.”

What else could she be objecting to then that those were pretextual. I mean I think I think she I think she's saying like I believe that I've made my case. I mean no no answer my question. After the prosecutors given the asserted race neutral reasons what else could she be objecting to other than that they were pretextual. I mean I think she's are you talking about page 175 justice cabinet exactly. Okay, I think they're she's just making sure that her objection is preserved and the what else that's after the asserted to answer my question after the prosecutors given the asserted race neutral reasons.

And she goes back to bats and at that point what else could she be objecting to other than that the asserted reasons were pretextual. I mean I think it's the ultimate conclusion the district judge reached or it is pardon me the trial judge reached that they were that they were race neutral in fact and she hadn't shown discrimination.

“I mean I think that's why I think she she uses the word reserve and I think she wants to make sure I mean that's that's the 175.”

I like to reserve my then she then that's the first sentence the second sentence I don't want to let the panel and go by without having those objections and then.

Repeat myself I think you've already made those says the judge and they were race neutral can I ask the separate distinct question just one question which is in the course of that paragraph the court says.

Is that a legally correct analysis of bats.

“It is in that it means that he was finding the act of the reasons to be race neutral in fact.”

But is that the end of the bats and analysis in your view. I mean if he's finding them to be the actual reasons the race neutral reasons in fact. If they're if they're race neutral is that the end of the bats and analysis. If it's just if the question is just are they facially race neutral the net step two you're on right and that's not the end of the bats and analysis correct. The whether there's a facial justification that's race neutral is not the end of the bats anymore. Thank you. What I want to say thank you whether in the end they are race neutral is the question right that's right.

And as to what she was objecting to if she wasn't.

So it's basically raising a pretext argument. What she said on 176 is allow us to state into the record. There is one of 12 of 14 jurors are non-white whereas this county is approximately what 40%.

What she's saying is that the the racial makeup of the jury that was selected was so starkly different from the racial makeup of the county that that would be sufficient. To find that there were bats and violations. That's right you're on and actually in the sir petition at page 38. The petitioner emphasize this point as being part of the bats in the council.

I don't know how that could be. She starts her colloquy in that section by saying I want at some point the defense is going to want to the reserve both it's bats in objection.

And a straight for tenth amendment racial discrimination.

“That reference I not I don't think it was on the tenth amendment. I think what she meant was the the earlier objection that they spent a lot of time in what they are on.”

On the cross whether the jury pool. It was a representative body correct there had been two two objections there. Alright so she's talking about the cross the representation argument and the bats in argument. On the bats in argument the court starts with that and says you have already made it in the record so I'm out of the opinion it is in the record. She says I don't want to let the paneling of the jury go by without having those objections and court things. I think you already made those and they are clear in the record for the reasons previously stated he says all the reasons were raised neutral blah blah blah.

And then as to the other issue the other issue is the jury pool issue. Oh I've already ruled based on prior rulings from this the United States Supreme Court and the State of Mississippi that jury selection was appropriate that's that the jury itself the pool was appropriate. And those are noted for the record it is then when she starts talking about the jury pool as a whole that as a whole. I'm not on the bats in question so I'm not quite sure that you're fairly representing her use of that one example where they're colloquially on that one example.

Let me cite you something that shows it is it is a fair representation it's page 38 of the surpitation that's petitioner's filing where he ties that very exchange to his preservation of his bats and claim.

“But Council I think in fairness Justice Cavanaugh asked you what more could she have done or why wasn't she responding to or trying to say that there's pretext when she was talking about the bats in question.”

You pointed to this 40% issue that she talks about the 12 or 14 jurors but it's just a sort of my your points out that discussion was in reference to the jury composition issue and not the bats in issue. So regardless of what was happening in the surpitation I'm talking about what's going on in the trial record in the discussion that they were having. So I'm talking about what that looks as though the court resolved the bats in question by not giving her a chance to make any more arguments or say anything more about it.

And then he says the court. And that's when she starts making statements about 12 or 14 jurors or non-light. So I think we have to be clear about what's actually happening in the record and not ascribed to her.

Can I make two or some quick responses to that justice Jackson one is my friend conceited this morning that that point went to her trying to get to the bats and claim itself.

“That's just not what the what the chance could be but you're on or we're here on Ed per relief and the question is whether a reasonable fact finder could conclude this.”

So I'm not talking about the question I'm talking about what the court said they were talking about at that moment. He resolved the bats in issue and then he says and then as to the other issues. And there were two issues and the other issue was about jury compensate a composition and that's the one that she responds to with the relevant. And I don't agree he can see it otherwise you're on her. But also she did it without prompting there was there was no you know would you like to say more I mean she said the more that she wanted to say and the key thing is even when she had that opportunity.

She did not present the comparative juror.

I don't think it helps to to to to misrepresent what the record obviously shows let me ask you another question because. It seems as though the Mississippi Supreme Court is trying to have it both ways with respect to the significance of her arguments related to pretext is is your position that the argument was so central. That the failure to present it waves any obligation of the court to rule on whether the reasons that the state has given our race neutral and therefore there's no bats evaluation here because she didn't say anything about it or as you interpret the record.

“But that alleviates the court of any obligation to say that's one thing that I think the Mississippi Court is saying but on the other hand they also say it isn't necessary for the court to give her a chance.”

So either it's central in which case the court had to give her a chance or it's not central in which case the court had to rule on it I think in regardless so which is it.

What is the significance of her argument related to pretext is it so necessary that without it the court is relieved of any obligation to continue to look at the facts and actually make a finding. Or is it not necessary in which case it seems to me that the court needed to do that regardless of the fact that she didn't bring any argument about it. Right so I think when you're if you get passed up to the the court has to make an ultimate finding on non discrimination but it does so in light of the party submissions no pressing this court requires the judge to consider.

Matters especially intricate competitive compare compared to your arguments that are not presented to me that's something this court it's in light.

“I just wanted to and your view is that if the court has to do its obligation in light of the party's evidence the court does not have the obligation to turn to her and say what is your evidence about this the court doesn't have to solicit.”

The evidence from this party or give her an opportunity to present it. Well it doesn't have to affirmatively do that there's every indication that in the trial judge in the record here and a reasonable person could certainly read the record to allow multiple opportunities to present that there's nothing supporting the idea that the trial judge. Cut her offer certainly nothing compelling that view of the record justice. Thank you council justice Thomas anything further. And I guess you know Stuart would you you're about to discuss the role of Ed in our review much of this is being discussed as though we're on the novel review so would you discuss what Ed book requires.

Sure you're honored I think we've been very focused on the d2 piece so so I'll I'll lead with that but there've been various discussions about you know could the record be read this way are there pauses that allowed her to you know to step in to the trial judge actually turn to her and give her. This opportunity you know I heard lack of clarity. All those things mean that that that the petitioner can't be granted relief under d2 the record has to compel a finding that the trial judge failed on some factual matter and it just cannot possibly compel that finding.

I emphasize I mean just sure himself took a very different view of the record and he now says the view that he took is objectively unreasonable and I think that goes for the legal matters to your honor there has to be something objectively unreasonable here and the record. Can be read certainly either of two ways that would be enough on clear error of you Anderson versus best from a city it's certainly enough for the state under Ed by. Thank you justice Alito. You seem to be suggesting that the only way that we could overturn the Mississippi or honor Epa is if the district court had said to her.

They couldn't air in finding a way a non-weaver a waiver. I mean given the entirety of this record there's there's no no I'm saying your argument seems to be that only. If the trial court said council sit down bats has been preserved.

“I don't want to hear anymore that that's the only way that on Epa reviewed we could.”

Say Mississippi made an unreasonable determination a fact. I mean again given given this record that we ever said that a waiver has to be that explicit don't we infer it from evidence. Well I mean even if that were true justice so in my this gets what even if it's true but an unreasonable doesn't mean that all interpretations of a record or correct. I'd like you to point me to one part of this record one word by the court that says. Do you have something more on race neutrality.

That's exactly the point just so my or she has none of that and she has multiple indications.

No the problem is that she was never given an opportunity on this record and way the record.

Well we can go I'm not going to argue with you on this point. May I just repeat that I think I could say something helpful on this. No no no I was going to ask one last question okay on the preservation is not on the preservation issue on the. Comparative jury analysis on appeal. The comparative jury analysis on appeal.

An answer to justice barred question. A pellet courts can do their own comparative juror analysis even if not preserved below correct.

“But that's what happened in Miller Ellen Schneider.”

Do you believe the Mississippi Supreme Court says it cannot consider those arguments because of the waiver. Or that it's choosing not to consider it's it's saying that in general it does not it can exercise it's discretion. Do so we know that would do so it could do so. So is that a plain error standard. Because plain error is what federal courts use to review evidence that has not been present.

An objection that has not been preserved below. Could it it would be plain error correct. That's what that's what has been said in the case. I mean flowers versus state three the flowers case. I mean what the court says was because the error and upholding the strike of juror pitmen.

Effective substantial right we apply to plain error rule to find a bats and violation occurred.

“So Mississippi has a similar plan error rule.”

They has discretion to overlook a waiver correct. It has discretion. So if the record is clear that there was a bats in violation. And we can argue about each individual juror whether the record is clear or not. I want you to make an assumption.

If the record is clear that there was a bats in violation. With the Mississippi Court have aired in failing to to conduct that review.

And the answer is no certainly not under it.

No, none under eppo. It's a constitutional violation in a case with a court below did not make an actual. Step three analysis you're saying that it wouldn't have been error. I mean that's that's consistent with the waiver or forfeiture of constitutional objections generally and with jury. Oh that's in fact we apply plain error.

And but state court don't necessarily have to do that. They can do do pure discretion. They can do different approaches. Nothing in this court's case is bar that justice center my arm. And I mean I would just emphasize it. This is this is a rule that has been embraced by most federal courts of appeals.

And it's one that was surely reasonably applied here because we apply plain error.

Some some do some don't and again you always have to apply plain error.

That's not plain error is required by the rules of federal procedure. And if an objection has not been preserved, the court has to determine whether the error was harmless. Or I'm sorry just. Well the the error was harmless. May I respond to that one?

Yes. I'd come back to Ford versus Georgia where the court affirmed that state courts can adopt these timeliness rules. Those rules are going to block some claims. Perhaps even some meritorious claims. And given that signal it was surely reasonable to adopt this rule,

and ultimately vindicates and enforces bats in itself and makes for better bats and rulings as we thank the council.

You know I want to take you back to the conversation that you and I were having and that you were having with justice

Kavanaugh, which is just this question of waiver because I do believe that given the Mississippi Supreme Court decision, that's the only question before us. The question is not whether this defense council put enough in the record to actually prevail on a bats and claim. The question is instead whether the Mississippi Supreme Court got a really wrong when it said that she had waived her argument that there was a bats and violation. And again I'm just staring at this transcript and I guess as to that question,

I don't really see the ambiguity in this transcript because this is coming after the fact of the prosecutor saying we had race neutral reasons for all of them. And she says three times I want to contest that and the court says over and over, it's in the record, it's in the record, it's clear in the record.

And when a court says that to you three times, I actually don't believe that it's like I'm not going to say what can you do.

I think she could have done more.

“I think she could have said judge really like I'm not moving on to anything else until I get this out.”

But on the other hand, it's hardly ineffective assistance of council to make a different kind of choice to say I don't want to antagonize this judge. If he's the system on moving on, I better move on that probably was a wrong decision. I'll say that that definitely was a wrong decision, but that's not the question before us. The question before us is only whether she waived her objection and how could she possibly have waived her claim that there was a bats and violation. When she says a three times and the court says three times, it's in the record you've done it.

Okay, I appreciate that justice cake and I make two points. One is I really have to emphasize it's not a holding that she waived the objection or the claim. It's a holding that she waived the pretext arguments. I'm saying it's what they said the pretext argument is just a way of establishing a bats and violation. So if you keep on saying there's a bats and violation here, then you're saying there's something wrong with what the state has told you about their race neutral justification.

And if you tell me that she had to use the word pretext in what she was saying, I'll tell you that's not the standard. And what I'm saying, your honor is that she had to give the judge a chance to rule on the comparative juror arguments that she later claimed or central to her argument. She didn't have that. She didn't give the judge a chance to rule. Okay, and in terms of giving people a chance, the judge had the judge, the judge has every chance in the world to rule on whatever she wants to do. The judge could have said, you know, okay, I'll put you to it. Show me what you got.

So you don't have to give the judge a chance. I mean, judge, I, I, just as Cagan. And the judge said it's all in the record. It's all in the record. It's clear. No, respectfully, he didn't say that just as Cagan, he agreed that the objection was in the record and all she said was, I want to reserve the objection.

“And he said, it's, you know, that's what he gave her a signal to.”

What, what I emphasize just as Cagan said. You think that the judge thought that she was only objecting in the same way she did it the very start of the inquiry that she was just making. That's like a prime of face a case. I mean, obviously, the judge did not think that the judge thought that she thought that there was a bats in violation. And she said, and he said, enough. It's in the record.

And here's the, here's the key point, just hey, whenever my friend or any hypothetical needs to suggest that the judge cut her off, it always has to use words that are not in the transcript.

And she referred not to pretext not to the desire to make more arguments. She didn't say, you know, you're on her, I didn't make some arguments that I would like to make. And I just take a moment to preserve those. And every indication of this record is that he would have allowed her to. I mean, he allowed her to make an extended argument challenging deathballifications, even though she conceded. It was doomed. I mean, she talked about carpool routes and juror medical issues and jurors being married to each other when she wanted to say something she did.

And the judge heard her out and very often ruled for her. And this part of the transcript, just like when the, when the actual bats and challenges and step two and step three were occurring, she didn't say any of that.

“And didn't give any indication and she still didn't do so in her post trial motions. So that's what I'd emphasize your honor.”

Thank you. That's a scholarship. Briefly, I hope. Should you lose, what is the appropriate remedy? Let's say you lose on the D2, so there's an unreasonable determination of fact. I know you've been going to fight the hypothetical, but please don't.

Very good. This code would find there's an unreasonable determination of fact, but under 2254A, of course, we can only grant a rid if we find a violation of the constitution.

Can you explain how that's going to proceed?

“I mean, I think number one, there would need to be a showing of a substantive, I think bats and violation, potentially,”

overcoming E1, for example, in district court. If this, if this court are the lower courts, we're to think that that law and justice were shown in this case to warrant issuance of the writ. I mean, I think he would go back to the state courts. I mean, this would depend if the court finds the substantive, that's in violation, I think. Well, we're not, we're likely assumed we're not going to make that inquiry.

And it could find ourselves to what we spent the last two hours talking about, which is the waiver issue, okay? And we find an unreasonable determination of the waiver issue. What more does a federal court need to do?

“Yeah, I mean, I think, as we've said in our papers, the possible remedy in that case, when it goes back down the federal chain,”

would be a writ that would require release if the Mississippi Supreme Court does not in a certain amount of time, undertake whatever analysis this court holds to be lacking. So if that's due a new step, three analysis in a light of the relevant arguments, that would be the measured remedy there. I think that'd be consistent, for example, with what's appeared when, say, maybe it's as granted for on a question of whether a confession was voluntary, you don't necessarily need to do a retrial, retrial, you just need to see if the confession was voluntary if it is things can stand.

I think similarly here just. Justice Cavano. A couple things. First, I agree with you that the court does not need to do anything if at the point in the transcript, we've been focused on defense counsel, and I said, I withdraw all my bets in objection, or having heard the assertive reasons I have nothing on pretext.

So I agree with you in that situation, but that's obviously, as we've explored not what it looks like it happened here. You said that she could have jumped in again after that colloquion 175 after she twice raises it. But at the end of that, the district court says the court finds there to be no bets in violation. Now, again, it's just as Kagan said, could have jumped in, but at that point he said, you've made the objections, you've preserved them, and there's no bets in violation, right?

I agree with that framing, because again, made the objection your honor, I think that's the critical thing.

And then, for why there are two possibilities for why, I think that it got truncated here, which we've all explored. One is that the trial judge had a misunderstanding of what bats and required to understand the third step, and that's in that sense that I read before. Well, all the reasons for race neutral is to members, and so there's no bats in violation, right? One possibility, the other possibility, in Judge Mills, in the Federal Havius District Court, alludes to this, because Judge Mills applies up, Edmont, correct?

He says he does, I agree with that. Yeah, no, but he articulates the Edmont framework. He's a very experienced district judge. It's been on this city's Supreme Court, just as he says he's applying Edmont unreasonable. And what he says happens is it stopped after two steps, simply put no state court, whether it be the majority, in the Mississippi Supreme Court of the trial court, conducted a full three step bats and inquiry. And then he explains what he thinks could have happened. He's generous to the trial court on this, I think.

The trial court seemingly eager to proceed to the case itself, quickly deemed the racist reasons as race neutral and moved on. The trial court's actions, perhaps understandable and relatable to this court, speaking to Judge Mills trying to show empathy, I think, for the burdens on a trial judge, are airing on the less.

So, I think, you know, whether the trial judge misunderstood the third step or the trial judge was just, you know, rushing it along to try to keep things moving or whatever, it just never happened.

And that's Judge Mills, again, applying Edmont, or at least articulating Edmont, I agree with Justice Thomas completely, we have to look through this Edmont standards here. And so I appreciate that, Justice Kevin, I did, to take the second bit first, I would come back to Petitioner's own words, where he declared, on direct appeal, that the trial judge did decide step three. And this is surely a fair reading of that record, that's page 484 of the transcript. And he, again, links that to the same parts of the transcript that we do in footnote four on page 484.

“And I think that's quite important, I think it shows that it's not objectively unreasonable to find that the trial judge did conduct step three here.”

Could it have used better more clear words, I think, you know, of course, that's true, but what I think the judge was really doing was he wanted to be clear, I am finding these race neutral in fact.

Last question, sorry to prolong it, obviously focused on this, but the reason this matters, this is a death penalty case, right?

“And he was 17 when he admitted the crime and he did not, this is good, but he was not the shooter, correct?”

That's right, you're on. I mean, not the fatal shooter, that's right. Thank you. Just spirit. General Stort, I just want to understand your answer to Justice Gorsuch on remedy. So if we think that the Mississippi Supreme Court was wrong on the forfeiture/weaver point, I don't understand how it gets back. You said something about it, getting you said this in your brief, somebody about it getting back to the Mississippi courts.

Wouldn't the remedy be that we send it back down below for then the federal courts to analyze whether there was a bats in violation based on the comparative juror evidence?

I just don't see the route of bouncing back, it's not director of you. Well, I guess what I'm, so it would not be, we didn't see just remand to state courts favoring this court certainly your honor.

“I think we're responding to the suggestion that the rich should issue here at all.”

I mean, my friend is maintaining the rich, it flattered issue ordering release or retrial. And our view is that if a federal district court is issuing the rich here, the most it can do is an order that would correct the actual violation, which by hypothesis here is not conducting a full step three analysis.

And that could be something that is resolved by the state courts and would eliminate the constitution.

If you're saying the district court shouldn't, if we sent it back down, I agree, we did not grant certain on the bats in question. So that's not for us to decide, but if we sent it back down, you don't think that the district court, you know, or, or frankly, the fifth circuit. I mean, he said that the court has what it needs in the record to look at the comparative juror analysis.

“Why couldn't the federal courts make the bats in determination themselves?”

It would also be an option. I mean, I think if you sent it back down to the fifth circuit and said, hey, look, you know, you were wrong to find waiver. I mean, I think he would have everything it needs in the fifth circuit to just flat out rule on the bats in violation. As we said, you obviously know the merits of our position, your honor on one course. Okay, thank you. Thank you, honor. Justice Jackson, thank you council.

Mr. Ferguson. Mr. Chief Justice, and may it please the court. State and federal appellate courts routinely declined to consider claims, issues, and arguments that were not preserved in the trial court consistent with historical tradition. The bats in context is a particularly important time to apply that rule. Whether bats in violation has occurred is fundamentally a question, a fact.

The hiring parties to preserve their arguments that a prosecutor stated reason is pretextual, ensures that trial courts can consider all of the relevant information as they make the factual determination whether discrimination has occurred. And it allows prosecutors to explain their strikes and decisions not just strike when the reasons are top of mind. Justice is better served when these questions are aired before the jury is sworn when any errors can be fixed, rather than through a cold record on appeal.

The Mississippi Supreme Court did not unreasonably apply federal law or unreasonably determine the facts when it determined that petitioner failed to preserve his bats in pretext arguments in the trial court. This court should affirm, I welcome the court's questions. Well, Mr. Ferguson, with petitioner have preserved the argument, the bats in arguments if he had been in federal court. But no petitioner would not have, I think, preserved the arguments, the federal courts would apply plain error and consider those arguments under that standard.

What do you do with the points we've been talking about on page 175 where the defense seems to be looking down the road for something that's going to happen. At some point, I'm going to want to preserve these questions and the judge does say, you know, you've already made those declare on the record. In other words, his response, the judge's response to I'd like to reserve them is that you have. Mr. Chief Justice, I think that that was likely a demonstration by a defense counsel that she wanted to say more and she in fact did say more and so that I'd like to respond to something that was a significant discussion.

The state's argument, which is that reference on J.A. 176 to the statistics, and the fair cross section requirement applies to the veneer, not to the selected jury. So when the defense counsel is referring to the number of black jurors who are on the selected jury, not on the veneer, that necessarily is an argument in support of the bats in claim.

And I think it shows that she was in fact given the opportunity to raise additional bats in arguments, and she chose not to raise any any other messages.

You're saying when she said at some point I'm going to want to reserve this that that was the half page of the record later. I do think that that's when she took the opportunity and she could have said, you know, if I may, your honor, I have additional arguments to make. She didn't do that either before she said I'm going to want to make or after she said I'm going to want to make. In the federal courts, they already have plain error review and counsel for the state tells us that the state also has the discretion to consider a plain error correct.

That's right, Your Honor. All right. So if the juror comparison is clear from the record that there was a bats in error. That could be reviewed and should be reviewed by the Mississippi Court. No.

“Well, I think two points on that one is, you know, just the existence of an error being plain is not sufficient to make mandatory plain error review.”

And so under state law, the state court had discretion to consider that argument or not, depending on the other prongs.

If a step three analysis was never done by the court, how could it not be an abuse of discretion to fail to have done it by someone.

It's a judicial obligation to do a step three. It is a judicial obligation for the court to engage in step three, but I don't think it's an accurate depiction of the record to say that the trial court here did not make a statement. Did not make a step three. I know we're going back and forth on that point. And I'd add one more response on that as to the existence of a step three finding here. And that's on in this court's decision in perket.

The court said that the state court had found out step three that the prosecutor was not motivated by discriminatory intent. And the way the court described the facts in that case is that the state trial court, without explanation, overruled response objection and in paneled the jury.

“So I think that's very similar to what happened here.”

And the court found that there was in fact a step three finding, even though there was no explicit, I find the prosecutor's stated reasons to be credible. How could there be a step three finding if usually that's evaluating whether the race neutral reason is the true reason or whether instead it was pretext if there has been no argument. That has been pretext, how could there be a step three analysis, that's point one, and then point two judge mills who evaluate this, the federal heavy court flat out said multiple times that ended it's set to.

Well, your honor, I don't think that judge mills was was right to say that it ended up step two. And I know you pointed out earlier the state courts line that all the reasons were race neutral. I think that saying all the reasons were a race neutral to justice leaders point demonstrates that the trial court, at least implicitly, had found those to be the actual reasons. You don't have a situation where the trial court said the prosecutor stated race neutral reasons, and so we find there to be no bats in violation.

That would look like a state court that was misunderstanding what bats in requires that step three. If the if the state court said that only stating race neutral reasons was sufficient, but here you had the the state court say all the reasons were race neutral. And I think that's enough particularly given what this court found in per ket to show that there was an implicit credibility finding there. What what about the court saying all of the reasons were race neutral and so the court finds that there to be no bats in violation.

Justice Jackson, I think the answer is the same and that's because again if the reasons are race neutral.

That implies that there's are the actual reasons and that's distinct from saying the prosecutor has stated. Isn't that collapsing two and three? I mean two is race neutral reasons three is are they pretextual and we've said you aren't supposed to collapse those two.

“So your argument just did so by saying if you have to then you've satisfied three.”

Just as Jackson, no I don't think that that's are didn't just say that if they're race neutral then that means they are the real reasons. I think if the actual reasons are race neutral so not let it the stated reasons are race neutral. If the prosecutor has merely stated race neutral reasons and the trial court doesn't credit those those reasons or if there's any reason to believe that that's are not the real reasons that the prosecutor exercised the strikes.

Right there's no indication here that this court did any sort of comparative work which would have been what we would have expected from the district.

I mean from the defense council if given an opportunity correct.

“I think certainly you given what the what defense argued on appeal you would have expected that right so if if the comparison is also a part of the determination of pretext.”

How does this record indicate that the court did any of that kind of analysis. I don't think that there's any particular indication that the court was so esponté considering arguments that weren't raised but I think that when it comes down to the ultimate question this court is explained several times. The ultimate question is whether the prosecutor or the the striking party was engaged in intentional discrimination.

And that's necessarily if the judge finds that the reasons were race neutral then race neutral reasons in fact being exercised is incompatible with the finding of intentional discrimination.

I ask you a broader question and then I'm I'm done. The United States has entered this case is an amicus curie. Meaning that you do not have to be here and as just as cabin all pointed out this case is a capital case involving the conviction of a defendant who was not the shooter. A felony murder scenario. And so I guess I'm trying to understand the United States interest.

Your your your brief doesn't really pay a lot of attention or devote a lot of time to defending the actual conviction. So what what is the principle that you are seeking to have upheld in this case in which it's clear that the defense council said several times I have a bats an objection and tried to preserve it in the court. If anything misled her into believing that she had preserved it by saying it's in the record.

“Why is the United States interested in being involved in this case?”

Well you're under the United States is a party in many trials including many criminal trials is subjected to bats in objections and defense in bats in cases. And so I think our interest is in defending the right of courts of appeals to exercise their discretion to consider. Juror comparison arguments and not as I think petitioner if I may you're on. Not as petitioner argued in petitioners brief although it seemed to walk away from today.

A doctor ruled that a pellet courts must consider Juror comparison arguments when they are raised for the first time on appeal.

Also just as Thomas I think further just as a leader. Just as Cagan. Mr. Ferguson I want to go back to what you were saying before and I'll grant you something. I'm going to assume your view that the judge here did not collapse. Stage two and stage three the judge understood what he was doing and that the judge made a determination that there was no bats in violation. The determination that you would make at the end of the day. It would be strange for my assuming your view on that. I need you to assume my view on something else which is that the defense counsel understood that that's the stage that they were in.

In other words that now they were talking about the ultimate bats in violation and what she was objecting to was the finding of the ultimate bats in violation. So let's say that they were both on the same page we understand that we're contesting the ultimate bats in violation. So if you assume those two things and the court says there was no violation and the defense counsel says I object to that.

“I think there was a bats in violation and he said I got that I understand that it's preserved and she said I want to make an argument about this and he says it's preserved.”

It's preserved. How could it not be preserved? Well you're on or I agree with the state that there's a distinction between observing a claim and preserving particular arguments. And simply saying I disagree with the ultimate finding is not sufficient to preserve every possible pretext argument under the sun. And so I think there needed to be some form of even gesturing at juror comparisons. There was nothing in the record at all until after trial to suggest that petitioner's counsel thought that there was a problem with white jurors not being struck who shared characteristics with the black jurors who were.

So you think in the in the face of the court saying again and again it's in the record I got it it's preserved.

In order to preserve those particular pretext arguments for appeal yes under Mississippi law.

Thank you.

“This is course it's in fact a lot of reports have issue preservation rules with respect to arguments not just claims or issues.”

That's correct your honor. And we've never held those in permissible before.

No your honor and in fact this court has repeatedly reaffirmed both in the context of bats in claims and state courts in bats in and in court versus Georgia. The court has reaffirmed that procedural rules are permissible and then in single ten versus wolf this court affirmed that courts appeals in the federal system have discretion over when to accept unpreserved arguments on appeal.

“Just capital. Just spirit. Just one question this Ferguson is an unusual for the United States who appears in amicus when we have a constitutional question before us that affects the United States in litigation.”

No your honor it's quite common for us to appear. Thank you. Justice Jackson.

“Thank you council. Rebuttal Mr. Perkovich.”

So a few quick points first I want to address the issue would may not in the woodward case that can strain on direct review the inquiry and that's simply the point at that gateway issue there was an understanding that they clearly may and this court has done so routinely so that's our fundamental point on that. With respect to the procedural rules that Ford versus Georgia endorsed as a basic principle we have no problem with that. That is a timely objection rule of course that's not applicable here and with respect to a waiver rule and forfeiture however it's framed.

The problem is that it's not implementing bats in step three it's obstructing bats in step three and that's the work that's occurring in this case and the problem with that rule.

With respect to the conflation of race neutral findings and step three there is a very big step between determining something's race neutral and the determining it is credible and that's where the work of the court at a minimum the trial judge. It is required whatever is being pressed by the opponent of the strike for the reasons I pointed to and are spoken to forcefully in powers with regard to the other stakeholders and the broader. The states for our society with regard to the protection clause in this context with regard to remedy bats in of course ushered in a prohibition of the discriminatory use of strikes in a way that improved upon swaying and provided a specific framework and so when that framework breaks down as it did here that's a structural error.

And so this has to return to its prior posture and much the way the last time this court found a detue violation in Miller L which is to the district court and for a judgment entered for the petitioner. Thank you counsel the case is submitted.