Pitchford v. Hall et al

Filing 95

ORDER granting in part and denying in part 89 Motion for Jury Discrimination Discovery. Signed by District Judge Michael P. Mills on 4/6/2020. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
TERRY PITCHFORD
V.

PETITIONER
NO. 4:18-CV-00002-MPM

PELICIA HALL and
ATTORNEY GENERAL JIM HOOD

RESPONDENTS

ORDER ON PETITIONER’S MOTION
FOR JURY DISCRIMINATION DISCOVERY
Before the Court is Petitioner’s motion for jury discrimination discovery, which is
opposed by Respondents. See Doc. #s 89, 92, 94. On January 2, 2019, the Court granted
Petitioner’s initial motion for leave to conduct discovery and ordered Respondents to produce
thirteen categories of materials to Petitioner. See Doc. # 60. Pursuant to that Order,
Respondents provided Petitioner with three disclosures, the first on February 1, 2019, then on
February 11, 2019, and later on November 13, 2019.
Within the disclosure provided on November 13, 2019, Respondents produced the
annotated venire lists used by District Attorney (“DA”) Doug Evans and Assistant District
Attorney (“ADA”) Clyde Hill at Petitioner’s trial. The annotated lists include notes as to each
prospective juror’s race and gender, among other remarks. Relying heavily on these lists,
Petitioner now seeks further discovery related to his Batson1 claims.2
In the instant motion, Petitioner seeks the following:

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Batson v. Kentucky, 476 U.S. 79 (1986).
In his federal habeas petition filed on September 17, 2018, Petitioner sets forth a variety of Batson related arguments
including a general claim that “the State exercised peremptory strikes in a racially discriminatory manner,” and more
specifically, that DA Evans’ “extraordinary pattern and practice of Batson violations has perpetuated, for decades,
grave Equal Protection violations in capital cases,” and further that “Batson violations eliminated 80% of AfricanAmerican venire in the empanelment of Mr. Pitchford’s jury.” See Doc. #36.
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(1) a list of all individuals employed by or contracting with the DA’s Office for the Fifth
Circuit Court District having any connection to Pitchford’s prosecution in the two
months preceding jury selection for his trial;
(2) depositions of DA Doug Evans and ADA Clyde Hill, as well as every other employee
or contractor identified in (1) above;
(3) the production of any “notes, documents, or other work product” related to jury
selection in Pitchford’s trial;
(4) the production of all completed juror questionnaires returned to the trial court and
provided to the DA’s office in February 2006;
(5) the production of “any policy document, manual, guide, memoranda or other work
product” concerning jury selection practices for the DA’s office; and
(6) the production of any file or documents “composing the DA’s jury selection work
product” with respect to 403 cases prosecuted in the Fifth Circuit Court District
between 1992 and 2019.
See Doc. # 89. In opposition, Respondents argue that Petitioner’s requests must be denied as the
material sought is either irrelevant, protected by the work-product doctrine, or is otherwise
overbroad and unduly burdensome.
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6
of the Rules Governing § 2254 Cases permits a district court to authorize a party to discovery
upon a showing of “good cause.” Such “good cause” is shown “where the specific allegations
before the court show reason to believe that the petitioner may, if the facts are fully developed,
be able to demonstrate that he is . . . entitled to relief.” Bracy, at 908-909 (citation omitted).
Upon due consideration of the record, and having been fully apprised in the premises, the
Court finds that Petitioner’s motion [89] is GRANTED in part and DENIED in part.
Petitioner’s motion is GRANTED as follows:

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(1) Within sixty days of the date of this Order, if possible, Petitioner is permitted to
depose DA Doug Evans and ADA Clyde Hill regarding the aforementioned
previously disclosed annotated venire lists; and
(2) Within thirty days of the date of this Order, if possible, Respondents must produce
any and all completed juror questionnaires returned to the trial court in February
2006, to the extent that they have not already been produced.
Petitioner’s other requests are predicated on the recent United States Supreme
Court decision in Flowers v. Mississippi, 588 U.S. ___, 139 S. Ct. 2228 (2019), in which it held
that the trial court committed clear error in concluding that the State’s use of a peremptory strike
was not motivated in substantial part by discriminatory intent, i.e. a Batson violation. See
Flowers, 139 S. Ct. at 2251. Flowers had been tried six separate times for allegedly murdering
four individuals. Id. at 2235. The sixth trial, at issue in the recent decision, resulted in a
conviction and death sentence. Id. In coming to its conclusion, the Flowers Court emphasized
the State’s history of peremptory strikes in Flowers’ prior trials. Id. at 2237-2238; 2245-2247.
Relying on Flowers, Petitioner makes much of the fact that the same District Attorney,
Doug Evans, prosecuted both Flowers and Petitioner on murder charges and sought the death
penalty in both prosecutions. The mere presence of these similarities, however, do not constitute
“good cause,” and, therefore, do not warrant discovery of the additional information sought.
Accordingly, Petitioner’s motion is DENIED in all other respects at this time.
SO ORDERED this, the 6th day of April, 2020.

/s/ Michael P. Mills
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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