The rule and the record

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NICK EICHER, HOST: It’s The World and Everything in It for this 20th day of April, 2026. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

Two Supreme Court cases today—very different facts, but both raising a question about what happens when the rules of the courtroom collide with notions of fairness.

First, a murder case out of Mississippi—one that started as a local crime story:

MONTAGE: A federal judge has overturned the death penalty for a man / convicted of murdering a store owner / because the trial judge … didn't give the man's lawyer enough of a chance to argue the prosecution was dismissing black jurors, / but the state Supreme Court ruled … the defense never challenged … striking those potential jurors over race.

EICHER: That case is now before the U.S. Supreme Court.

And the question is not whether discrimination happened.

It’s whether the defense lawyer did enough to preserve the claim that discrimination occurred—and whether it ought to matter.

That’s where we start today.

Before we get to the facts, here’s a moment from oral argument that captures the dispute about what the defense lawyer did—or did not do:

THOMAS: But did the trial counsel offer an argument or evidence that the reasons offered by the prosecutor were indicating she did not raise these objections?

PERKOVICH: ….trial counsel sought to be heard …-and was told by the trial judge repeatedly that her record was preserved.

THOMAS: But didn't trial counsel subsequently file an affidavit indicating that she did not raise these objections?

PERKOVICH: Justice Thomas, yes, that's correct.

So right there you hear the tension: did the defense lawyer actually make the right argument or not? And that matters because this case is about jury selection, and whether racial discrimination was let in because of a procedural breakdown.

REICHARD: Here are the facts in Pitchford v Cain.

Back in 2006, a jury convicted 18 year old Terry Pitchford of capital murder.

That arose from a robbery in which a shopkeeper named Reuben Britt was killed. Pitchford didn’t fire the fatal shot; his younger accomplice did that.

Prosecutors argued he still had the required intent to commit capital murder.

EICHER: The legal question before the Supreme Court is about whether prosecutors improperly struck black jurors.

Analysis of whether that happened is governed by a case called Batson v Kentucky.

Batson set up a three-step process. One, the defense raises a concern about racial bias. Two, the prosecutor offers race-neutral reasons. And three, the judge decides whether those reasons are genuine—or a pretext.

REICHARD: Pitchford’s lawyers say step three never happened. The judge didn’t really examine how credible were those reasons to strike black jurors.

During jury selection, prosecutors struck four of the five black jurors and accepted 16 of the first 18 white jurors. This is in a county about 40% black.

So the defense objects. That’s step one.

The prosecutor gives explanations. That’s step two.

EICHER: Then the judge says in essence, “your objection is on the record,” and proceeds with the trial.

The defense says that’s no step three at all, because the judge didn’t evaluate the explanations.

So Pitchford appealed. He lost in the lower courts on grounds that the defense waived the argument. Another way to put it: even if something unconstitutional happened—too bad. His lawyer didn’t push hard enough to preserve the issue for appeal.

REICHARD: Justice Samuel Alito focused on that. Listen:

ALITO: Well, this is the most timid and reticent defense counsel that I have encountered. Any competent defense attorney that I knew would have spoken up…. take this example. …This is Juror Number 30, the prosecutor is called upon to give his race-neutral reasons. He says: She has mental problems. According to a police captain, they've had numerous calls to her house, and said she obviously has mental problems. The court said that would be race neutral as to that juror. And nothing is said. I mean….

Point being, why didn’t the defense lawyer push back on that?

Still, other justices saw it differently. Justice Elena Kagan doubted the state’s argument:

KAGAN: She should’ve been more assertive. But the only question before us is did she waive her objection when three times, she's told by the court, “you’re objection is in the record. I hear you.”

STEWART: ….The Mississippi Supreme Court did not hold that her objection was waived. It held that her pretext arguments were waived. It up --it upheld the finding on that.

KAGAN: That's slicing the baloney very thin. (Laughter.) I’m sorry. General Stewart!

EICHER: Justice Brett Kavanaugh focused on something else: maybe the defense lawyer really was trying to object, but the judge shut her down:

KAVANAUGH: 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," they're clear, and "the court finds there to be no Batson violation."

That points to the possibility that this wasn’t about a passive lawyer, but rather a breakdown in communication with the judge.

And then Justice Ketanji Brown Jackson reframed the case like this:

JACKSON:I see this also as possibly a very short opinion. It would go something like: Pitchford’s trial counsel made a Batson objection and re-raised it multiple times. Each time, the trial judge reassured her that it was preserved. Nevertheless, Mississippi Supreme Court said it was waived. That's unreasonable. The end. What would be wrong with that?

PERKOVICH: Not anything I can think of. (Laughter)

REICHARD: An exchange suggesting this might be an easy fix, at least for some of the justices.

But there’s a deeper tension here. Prosecutors often give race-neutral reasons for striking jurors—like skepticism of law enforcement.

Some friend-of-the-court briefs argue those reasons can act as a proxy for race, because black jurors may be more skeptical of police.

EICHER: So how should courts distinguish between legitimate reasons and hidden discrimination?

And this is happening in the context of a death penalty case, where the stakes couldn’t be higher.

Justice Kavanaugh:

KAVANAUGH: ….the reason this matters is this is a death penalty case, right, and he was 17 when he committed the crime, and he did not, not that this is good, but he was not the shooter, correct?

STEWART: That's right, Your Honor.

Alright, now to case two:

ROBERTS: We’ll hear argument today in case number 255146, Abouammo versus United States.

REICHARD: We leave Mississippi and go to Silicon Valley by way of Saudi Arabia. Different facts, but still a question about legal rules and how strictly to apply them.

Ahmad Abouammo is a former employee of Twitter, as it was called back in 2013. He handled accounts in the Middle East and through that connected with associates of Saudi Crown Prince, Mohammed bin Salman.

EICHER: The US government says he passed along private user data like phone numbers and emails in exchange for luxury gifts. In turn, those associates targeted people critical of the royal family.

When the FBI came to his house to investigate, Abouammo allegedly made a fake invoice to cover up what he did.

REICHARD: And this is where the legal dispute comes in.

He made that fake document in Seattle, where he lived.

But he was prosecuted in San Francisco, where the FBI office is.

So now the question is: where can the government bring the case?

The Constitution says you have the right to be tried where the crime was committed. That’s called “vicinage.” 

EICHER: Abouammo argues the crime was complete the moment he created the false invoice—so the case belongs in Seattle, not San Francisco.

REICHARD: But the government says that’s wrong. It says the crime includes its effects—the investigation was in San Francisco, and the invoice was meant to influence it.

That didn’t seem to sit well with the justices. Chief Justice Roberts offered this hypothetical:

ROBERTS: It just seems very bizarre to me. ….I mean, the guy does whatever it is to create the document, and he says, oh, that's a crazy idea, and tears it up. You're going to prosecute him?

Justice Jackson pushed the government’s argument to the limit. Suppose the government decided a certain crime committed in Seattle is best prosecuted in New York because they have more experience.

JACKSON: Is your view that venue would be proper in the Southern District of New York?

YANG: Yes.

EICHER: Point being, that would pretty much do away with venue protections.

Justice Alito also tested the limits with this hypothetical:

ALITO: So you can’t withdraw for on half a second?…maybe someone creates a false document but ….says, I'm going to just create this, but I'm not actually going to send it. And then, for one second, he's tempted. I'll actually send this. And then he immediately says, no, that's the wrong thing to do. Too late?

Then this vivid exchange between Justice Clarence Thomas and the government’s lawyer:

THOMAS: But he e-mailed it -¬he transmitted it from Seattle.

YANG: Mm-hmm. But it was directed specifically at the Northern District of California. He knew the agents were conducting an investigation there and that is where they're from. It's no different than pointing a gun and shooting. He shot the e-mail and he hit Northern California.

REICHARD: This is another situation where old rules don’t quite fit modern life. The government sees digital actions as traveling—happening in one place, but taking effect somewhere else.

The defense, by contrast, understandably wants clear limits on where a case can be brought.

EICHER: Before we go, one opinion from last week: a unanimous win for energy company Chevron, in a high-stakes environmental dispute.

Plaquemines parish sued in Louisiana state court, alleging that Chevron’s oil production during World War II caused damage to the coastal wetlands.

The company supplied critical fuel to the US war effort, operating under government direction.

A state jury had awarded the parish millions of dollars in damages.

The legal question was whether this case should be heard in state or federal court. The answer could be heard in lawyer Paul Clement’s argument on behalf of Chevron during oral argument in January:

CLEMENT: The classic person who acts under a government official is a government contractor providing the government with what it needs to win a war.

REICHARD: The decision sends the case back to federal court. That’s a venue that corporations typically see as more neutral for complex and high-stakes disputes.

And that’s this week’s Legal Docket!

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