PEOPLE OF MI V JEROME L KNIGHT
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 21, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 124996
JEROME L. KNIGHT,
Defendant-Appellant.
______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 125101
GREGORY M. RICE,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
In these consolidated appeals, we are called upon to
clarify our Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90
L Ed 2d 69 (1986), jurisprudence and provide guidance to
our lower courts.
whether
the
trial
Specifically, this Court must decide
court
in
these
cases
determined
that
Batson had been violated; namely, we must discern whether
the
trial
court
concluded
that
the
prosecutor
exercised
peremptory challenges to exclude certain prospective jurors
from the jury pool on the basis of race.
On the basis of
our reading of the voir dire transcripts, we hold that no
Batson violation existed in this case and the trial judge
neither explicitly nor implicitly found that the prosecutor
purposefully
discriminated
peremptory challenges.
in
the
exercise
of
three
Having reviewed the whole record
and the fair inferences to be drawn from it, we cannot
conclude that the trial judge implicitly found that the
prosecutor purposefully discriminated.
Instead, the trial
judge’s ambiguous statements were driven by her goal of
ensuring
a
racially
mixed
jury,
not
concern
with
determining whether the prosecutor’s asserted reasons for
exercising peremptory challenges were a pretext.
the
trial
judge’s
only
clear
statement
Indeed,
reflected
her
finding that neither the prosecutor nor defense counsel had
engaged in racially discriminatory behavior.
Accordingly,
we affirm defendants’ convictions.
I. Factual Background
Defendant
Knight
and
codefendant
Rice
were
charged
with first-degree murder, MCL 750.316, stemming from the
shooting
death
Codefendant
of
Rice
defendant
was
also
Knight’s
charged
2
former
with
one
girlfriend.
count
of
possession of a firearm during the commission of a felony,
MCL 750.227b.
The prosecutor’s theory was that defendant
Knight had unsuccessfully tried to hire someone to kill his
former
girlfriend.
according
to
After
the
his
prosecutor,
initial
defendant
efforts
failed,
Knight
bailed
codefendant Rice out of jail in exchange for codefendant
Rice’s killing the former girlfriend.
Defendant Knight and
codefendant Rice were tried jointly before the same jury.
During
counsel
the
third
initially
peremptory
objected
challenges,
attempting
to
day
of
to
claiming
exclude
jury
the
selection,
prosecutor’s
that
the
African-American
defense
use
prosecutor
of
was
veniremembers.
Defense counsel expressed particular dissatisfaction with
the prosecutor’s reason for dismissing veniremember nine,
which was that a member of veniremember nine’s family had
been convicted of rape.
Defense counsel then demonstrated
his
Batson
misunderstanding
of
by
responding,
“I
don’t
believe that whether or not there is assaultive [sic] and
battery involved in that particular person’s family is a
basis on which to exclude someone when you already have a
pattern.
jury
I have noticed this pattern since day one of the
trial.
That’s
why
seventy-five
exclusions have been black.”
3
percent
of
the
The prosecutor immediately interjected that she had
excluded
three
Caucasian
for
African-American
veniremembers
excluding
the
and
veniremembers
offered
African-American
and
race-neutral
four
reasons
veniremembers.
The
trial judge stated, “There have been four whites excluded,
exempted by the prosecution and three blacks.
based
on
that
I
don’t
see
a
Batson
So just
problem.”
Defense
counsel then commented on the racial composition of the
jury pool, stating, “If you have seventy-five percent white
prospective
jurors,
Your
Honor,
and
twenty-five
percent
black prospective jurors, now the schedule has turned and
that’s
exactly
selection.”
what
we’ve
had
in
three
days
of
jury
Defense counsel appeared to argue here not for
the racially neutral exercise of peremptory challenges, but
for the exercise of challenges in proportion to the overall
racial division of the array.
The trial judge then found
no Batson violation, stating:
But that’s not the prosecution or the
defense’s fault that we are getting largely white
jurors.
If that’s an issue, that’s another
issue, and that can be dealt with another way.
But in this particular case and this
particular matter, I do not see a pattern of the
prosecution improperly excluding African American
males, because they’ve only excluded one, or
African American females where two have been
excluded.
I think the reasons are acceptable.
don’t see a problem there.
4
So I
There’s still right now, I don’t know if
this is going to end up being our jurors, but
there are quite a few–I don’t know who’s left up
there. But the fact that the composition of the
jury panel is largely white, it’s like I said,
another issue.
And that can be dealt with in
another way.
I deny the motion that the prosecution has
improperly excluding [sic] minorities from the
jury panel. [Emphasis added.]
The court then recessed for lunch.
prosecutor
dismissed
three
After lunch, the
African-American
veniremembers Bonner, Johnson, and Jones.
did
not
contemporaneously
peremptory
Johnson.
challenges
object
against
to
women,
Defense counsel
the
veniremembers
exercise
of
Bonner
and
Defense counsel objected only to the dismissal of
veniremember
Jones,
contending
that
the
prosecutor
was
attempting to exclude black females in violation of Batson.1
He
pointed
consecutive
Without
out
that
the
challenges
waiting
for
the
prosecutor
against
trial
had
exercised
African-American
judge’s
ruling
three
women.
regarding
whether a prima facie showing of purposeful discrimination
had been made, the prosecutor immediately provided raceneutral reasons for the three exclusions, although defense
1
Veniremember Jones, believing that she was dismissed,
left the courthouse before the trial judge ruled on defense
counsel’s Batson objection.
5
counsel
had
not
objected
to
the
veniremembers Bonner and Johnson.
challenges
regarding
The prosecutor stated
that she dismissed veniremember Bonner because Bonner was a
close
relative
murder.
She
of
two
persons
dismissed
convicted
veniremember
of
first-degree
Johnson
because
of
Johnson’s body language, the tone of her voice, and the
hesitant look she gave when she stated that she could be
fair.
Finally, she dismissed veniremember Jones because
Jones was a professional woman who had a daughter close in
age
to
the
victim.
The
prosecutor
noted
that
Jones’s
daughter was not “similarly situated” to the victim and
that Jones might compare and contrast the lifestyles of the
victim and her daughter.
The trial judge responded by stating, “Just before we
recessed for lunch, I thought that it was very clear that
we didn’t have a problem here.
But now I think we are
getting very close to a sensitive issue.”
rejected
the
prosecutor’s
reasons
The trial judge
for
dismissing
veniremember Johnson, but stated that she had not objected
to
Johnson’s
objected.
dismissal
because
defense
counsel
had
not
The trial judge did not accept the prosecutor’s
reasons for dismissing veniremember Jones:
The same thing
see a reason other
for the prosecution
the same age as the
with Miss Jones.
I do not
than–I mean, it seems to me
to say, she has a daughter
victim, that would seem to
6
work in the prosecution’s favor, just in terms of
thinking in the jury selection.
So I don’t
accept that.
*
*
*
I
do see that we are getting close, and
there are, I don’t know[,] two or three minority
jurors left on this panel.
So I think we are
getting close to a serious issue here.
I
wish that somebody had said something
about keeping Miss Jones and Miss Johnson.
And
then we address this matter because I probably
would not have excused either one of them.
[Emphasis added.]
Defense counsel interrupted the trial judge at that
point
to
clarify
that
Jones
was
the
last
veniremember
struck and that he objected to the exclusion of Jones.
Despite defense counsel’s comment, the trial judge stated,
“[I]f an objection had been made as far as Miss Johnson and
Miss Jones[,] I probably would have addressed it.
And I
tend to think I probably would have kept them on the jury.”2
The
prosecutor
then
stated
that
dismissal
was
appropriate as long as she advanced race-neutral reasons
for the dismissal.
The trial judge replied that she had to
either accept or reject the prosecutor’s “neutral” reasons.
She further stated, “And I’m not, I’m saying that I think
2
It is not clear from the record whether the trial
judge mistakenly referred to veniremember Bonner as
veniremember Jones, or truly believed that an objection had
not been made regarding veniremember Jones’s dismissal.
7
we’re getting close to a sensitive issue here on Jones and
Johnson.
That’s all I’m saying.
I’m making my record
too.”
The trial judge twice referred to getting close to a
“sensitive issue.”
that
the
We do not think this language reflects
sensitive
issue
was
purposeful
discrimination.
Instead, we believe the sensitive issue was the looming
absence of minorities in the array and on the petit jury.
The
prosecutor
comments.
challenge
She
to
acknowledged
immediately
defense
the
raised
counsel’s
trial
a
exercise
judge’s
reverse-Batson
of
peremptory
challenges to exclude five female Caucasian veniremembers
and one male Caucasian veniremember.
Defense counsel again
demonstrated his misunderstanding of Batson by stating:
I would indicate to
that sister counsel fails
are at least four white
jury.
*
the Court, Your Honor,
to recognize that there
women that are on the
* *
I don’t believe with regards to the fact
that they happen to be white women, I think the
Court also has to recognize that the greatest
number of people that have come through that
jury, as potential jurors, have been in fact
white people.[3]
3
Justice Cavanagh claims that defense counsel’s
objections did not demonstrate his misunderstanding of
Batson. Rather, he states that defense counsel’s comments
amount to an attempt to establish a prima facie case of
purposeful discrimination by asserting that the prosecutor
(continued…)
8
Defense counsel then requested that the trial judge
first make a ruling regarding his Batson objection.
The
following colloquy ensued:
[Defense Counsel]: But, I don’t think the
Court ruled on whether or not you’re going to
allow Miss Jones to be struck.
She’s still
downstairs, I’m sure.
[The Trial Judge]:
or not.
[The Prosecutor]:
[The Trial Judge]:
I’m going to keep her.
[Defense counsel]:
[The Deputy]:
Miss
I don’t know if she is
I thought she was held.
If
she
is
still
here,
Thank you.
Jones,
she
has
already
gone.
The trial judge then allowed defense counsel to make a
record regarding the prosecutor’s reverse-Batson challenge,
but
never
ruled
on
the
challenge.
Defense
counsel
responded by stating, “I believe the answer lies in the
panel that’s left.
There is no pattern . . . .”
further
the
discussion,
trial
judge
concluded
After
that
any
(…continued)
had engaged in a pattern of systematically excluding
African-American veniremembers.
We disagree.
The record,
when read as a whole, clearly demonstrates that defense
counsel’s Batson objections were made to prevent the
prosecutor
from
excluding
any
African-American
veniremembers, even if the prosecutor provided race-neutral
reasons for doing so, because the majority of the
veniremembers, by chance, was Caucasian.
9
Batson problems that may have occurred were cured because
African-American women were fairly represented on the jury
panel.
She stated:
I’m not satisfied with the prosecutor’s
response as to potential juror Jones and Johnson.
But I think they’ve already left.
So I’m going to say from this point on let’s
be very careful about the selection.
If you
think that you, if the defense is not satisfied
with me just giving a cautionary instruction to
the prosecution, then I’ll address any other
remedy.
But, realistically I think all of us are
being, trying to be conscientious about the
selection of these jurors because of the racial
makeup of the jury panels, which we don’t have
any control over.
I’m just saying, I let Jones and Johnson go
without holding them, especially Jones.
I guess
I should have held her and I didn’t do that.
I’ll take the fault for that.
But from this
point on let’s try to be careful with this jury
selection. We are to [sic] close to getting this
jury selected. [Emphasis added.]
After sending the deputy to search for veniremember
Jones again with no success, the trial judge stated, “I
don’t think it is serious enough at this point.
We do have
some minorities left on the jury panel and I’ll be watching
this closely.”
Finally, at the end of jury selection, the
trial judge commented:
With the panel we ended up with, I think
that any Batson problems that may have been there
have been cured.
10
We have the same number if not more jurors,
African American female jurors on the panel as if
we
had
kept
[veniremember]
Johnson
and
[veniremember] Jones.
I don’t think either side ended up selecting
this panel for any other reason other than I
think that these are the ones who will be the
fair and impartial persons to hear and try this
case. [Emphasis added.]
In the end, the jury convicted defendant Knight of
first-degree murder and codefendant Rice of first-degree
murder and felony-firearm.
Both defendants appealed as of right, and the Court of
Appeals affirmed.4
In defendant Knight’s case, the Court of
Appeals found that the prosecutor presented adequate raceneutral reasons for excusing the prospective jurors and,
thus,
the
trial
court
did
not
abuse
rejecting defendant’s Batson challenge.
its
discretion
in
While codefendant
Rice’s counsel joined in the Batson challenge at trial,
codefendant Rice did not raise the
Court of Appeals.
Batson
issue in the
Both defendants sought leave to appeal
in this Court.
4
People v Knight, unpublished opinion per curiam of
the Court of Appeals, issued October 15, 2002 (Docket No.
231845); People v Rice, unpublished opinion per curiam of
the Court of Appeals, issued October 15, 2002 (Docket No.
225865).
Both defendants assigned numerous claims of
error, but only the Batson issue is relevant for purposes
of these appeals.
11
In lieu of granting leave to appeal, we vacated the
judgments
of
the
Court
of
Appeals
and
remanded
for
reconsideration in light of Batson, supra, and Miller-El v
Cockrell, 537 US 322, 340; 123 S Ct 1029; 154 L Ed 2d 931
(2003) (Miller-El I).5
again
affirmed
the
On remand, the Court of Appeals
convictions,
purposeful discrimination.6
further
ordered
these
finding
no
evidence
of
We granted leave to appeal and
cases
to
be
argued
and
submitted
together.7
II. Legal Background
A. The Batson Procedure
Under the Equal Protection Clause of the Fourteenth
Amendment,8 a party may not exercise a peremptory challenge
to remove a prospective juror solely on the basis of the
person’s race.
Swain v Alabama, 380 US 202, 203-204; 85 S
Ct 824; 13 L Ed 2d 759 (1965); see also Georgia v McCollum,
5
People v Knight, 468 Mich 922 (2003); People v Rice,
468 Mich 922 (2003).
6
People v Knight (On Remand), unpublished opinion per
curiam of the Court of Appeals, issued October 7, 2003
(Docket No. 231845); People v Rice (On Remand), unpublished
opinion per curiam of the Court of Appeals, issued October
7, 2003 (Docket No. 225865).
7
470 Mich 869 (2004).
8
US Const, Am XIV, § 1 provides in relevant part: “No
State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”
12
505 US 42; 112 S Ct 2348; 120 L Ed 2d 33 (1992); Edmonson v
Leesville Concrete Co, Inc, 500 US 614; 111 S Ct 2077; 114
L Ed 2d 660 (1991).
States
Supreme
Court
In Batson, supra at 96-98, the United
announced
a
three-step
process
for
determining the constitutional propriety of a peremptory
challenge.
First, the opponent of the peremptory challenge must
make a prima facie showing of discrimination.
Id. at 96.
To establish a prima facie case of discrimination based on
race, the opponent must show that: (1) he is a member of a
cognizable racial group; (2) the proponent has exercised a
peremptory
challenge
to
exclude
a
member
of
a
certain
racial group from the jury pool; and (3) all the relevant
circumstances raise an inference that the proponent of the
challenge excluded the prospective juror on the basis of
Id.9
race.
The United States Supreme Court has made it
9
In Swain, supra at 223-224, the United States Supreme
Court required the defendant to show that the prosecution
had a practice or pattern of using peremptory challenges in
“case after case.” In Batson, supra at 92-93, however, the
Court sought to alleviate Swain’s “crippling burden of
proof” and eliminated the requirement that the defendant
make a prima facie showing by reference to other cases.
Further, it must be observed that the striking of even a
single
juror
on
the
basis
of
race
violates
the
Constitution. See, e.g., J E B v Alabama ex rel T B, 511
US 127, 142 n 13; 114 S Ct 1419; 128 L Ed 2d 89 (1994)
(“The exclusion of even one juror for impermissible reasons
harms that juror and undermines public confidence in the
(continued…)
13
clear that the opponent of the challenge is not required at
Batson’s
first
step
to
actually
prove
discrimination.
Johnson v California, __ US __; 125 S Ct 2410; 162 L Ed 2d
129 (2005).10
Indeed, “so long as the sum of the proffered
facts
‘rise
gives
to
an
inference
of
purpose,’” Batson’s first step is satisfied.
discriminatory
Id. at ___ US
(…continued)
fairness of the system.”).
See also United States v
Clemons, 843 F2d 741, 747 (CA 3, 1988), cert den 488 US 835
(1988); United States v Lane, 866 F2d 103, 105 (CA 4,
1989); United States v Battle, 836 F2d 1084, 1086 (CA 8,
1987); United States v Vasquez-Lopez, 22 F3d 900, 902 (CA
9, 1994); United States v David, 803 F2d 1567, 1571 (CA 11,
1986).
10
In Johnson, the United States Supreme Court
addressed California’s approach to examining Batson’s first
step. While the Court recognized that the states have some
degree of flexibility in formulating appropriate procedures
to
comply
with
Batson,
the
Court
concluded
that
California’s approach was inappropriate.
Id., ___ US ___;
125 S Ct 2416; 162 L Ed 2d 138.
The California Supreme
Court had concluded that at Batson’s first step, the
opponent of the challenge must present strong evidence that
makes discriminatory intent more likely than not.
The
United States Supreme Court rejected this approach,
observing:
We did not intend [Batson’s] first step to
be so onerous that a defendant would have to
persuade the judge--on the basis of all the
facts, some of which are impossible for the
defendant
to
know
with
certainty--that
the
challenge was more likely than not the product of
purposeful discrimination.
Instead, a defendant
satisfies the requirements of Batson’s first step
by producing evidence sufficient to permit the
trial
judge
to
draw
an
inference
that
discrimination has occurred.
[Id., ___ US ___;
125 S Ct 2417; 162 L Ed 2d 139.]
14
___; 125 S Ct 2416; 162 L Ed 2d 138 (internal citation
omitted; emphasis added).
Second, if the trial court determines that a prima
facie
showing
has
been
made,
the
burden
shifts
to
the
proponent of the peremptory challenge to articulate a raceneutral explanation for the strike.
Batson, supra at 97.
Batson’s second step “does not demand an explanation that
is persuasive, or even plausible.”
Purkett v Elem, 514 US
765, 768; 115 S Ct 1769; 131 L Ed 2d 834 (1995).
the
issue
is
whether
the
proponent’s
facially valid as a matter of law.
Rather,
explanation
is
Id.; Hernandez v New
York, 500 US 352, 360; 111 S Ct 1859; 114 L Ed 2d 395
(1991) (plurality opinion).
“A neutral explanation in the
context of our analysis here means an explanation based on
something other than the race of the juror. . . .
discriminatory
intent
explanation,
neutral.”
the
is
reason
inherent
the
will
offered
in
be
Unless a
prosecutor’s
deemed
race
Id.
Finally,
if
the
proponent
provides
a
race-neutral
explanation as a matter of law, the trial court must then
determine whether the race-neutral explanation is a pretext
and
whether
the
opponent
purposeful discrimination.
of
the
challenge
has
Batson, supra at 98.
proved
It must
be noted, however, that if the proponent of the challenge
15
offers a race-neutral explanation and the trial court rules
on the ultimate question of purposeful discrimination, the
first Batson step (whether the opponent of the challenge
made a prima facie showing) becomes moot.
Hernandez, supra
at 359.
B. Reviewing Batson Claims
Generally, we review a trial court’s factual findings
for
clear
error.
MCR
2.613(C).
Further,
we
review
questions of law de novo.
People v Nickens, 470 Mich 622,
626; 685 NW2d 657 (2004).
As a practical matter, however,
appellate
courts
sometimes
struggle
with
determining
whether a particular issue presents a question of law or
fact.
In
some
instances,
the
line
can
become
quite
blurred.
Batson error claims frequently appear to fall
into
blurred
the
formulate
Batson
a
cases
inquiry.
category,
generally
that
and
accepted
applies
to
courts
have
standard
all
levels
labored
of
review
of
the
to
for
Batson
The cases at hand give us the opportunity to
clarify our own standard for reviewing Batson errors.
We
conclude that the applicable standard of review depends on
which Batson step is at issue before the appellate court.
1. Determining What the Trial Court Has Ruled
Before a reviewing court can determine which standard
of review applies for purposes of Batson’s three steps, the
16
court must first ascertain what the trial court actually
ruled.
When a trial court methodically adheres to Batson’s
three-step test and clearly articulates its findings on the
record, issues concerning what the trial court has ruled
are significantly ameliorated.
See, e.g., United States v
Castorena-Jaime, 285 F3d 916, 929 (CA 10, 2002).
Not only
does faithful adherence to the Batson procedures greatly
assist appellate court review, but the parties, the trial
court,
and
the
jurors
are
well-served
by
thoughtful
consideration of each of Batson’s steps as well.
Thus, we
observe that Batson, as a constitutional decision, is not
discretionary.
Our trial courts must meticulously follow
Batson’s three-step test, and we strongly urge our courts
to clearly articulate their findings and conclusions on the
record.
In the event a trial court fails to clearly state its
findings and conclusion on the record, an appellate court
must determine on the basis of a fair reading of the record
what
the
trial
court
has
See,
e.g.,
Mahaffey v Page, 162 F3d 481, 482-483 (CA 7, 1998).
This
is not the preferred route.
found
and
ruled.
Because of the importance of
the right at stake, as well as the societal and judicial
interests implicated, we again direct our trial courts to
carefully
follow
each
of
Batson’s
17
three
steps,
and
we
further
urge
the
courts
to
clearly
articulate
their
findings and conclusions with respect to each step on the
record.
found
Once it is determined what the trial court has
and
ruled,
the
reviewing
court
must
decide
what
Batson step is at issue in the particular case and how the
claim of error should be reviewed.
2. Standard of Review for Batson’s First Step
While
there
is
somewhat
of
a
consensus
on
the
standards of review applicable to Batson’s second step, and
the scope of review for the third step is well-settled,
courts
appear
to
be
split
with
regard
to
the
proper
standard of review when examining Batson’s first step.
example,
the
Ninth
Circuit
Court
of
Appeals
en
For
banc
concluded that a trial court’s determination whether the
opponent of the peremptory challenge made out a prima facie
case of discrimination should be reviewed for clear error.
Tolbert v Page, 182 F3d 677 (CA 9, 1999).
In Tolbert, the
Ninth Circuit concluded that Batson’s first step presented
a mixed question of law and fact; however, the
Tolbert
court reasoned:
At the Batson prima facie showing step, the
concerns of judicial administration tip in favor
of the trial court and, therefore, a deferential
standard of review prevails. Our conclusion is
based on the language of Batson itself, which
describes the prima facie analysis as a “factual
inquiry,” Batson, 476 U.S. at 95, and makes clear
that the trial court is to be the primary
18
adjudicator of that analysis: “We have confidence
that trial judges, experienced in supervising
voir dire, will be able to decide if the
circumstances concerning the prosecutor’s use of
peremptory challenges create[] a prima facie case
of discrimination.” Id. at 97 (emphasis added).
Our holding is also consistent with more
recent teachings of the Supreme Court, which
counsel in favor of applying a deferential
standard of review to certain mixed questions.
See Salve Regina College v. Russell, 499 U.S.
225, 233, 111 S. Ct. 1217, 113 L Ed 2d 190
(1991). Deferential review is appropriate either
“when it appears that the district court is
‘better positioned’ than the appellate court to
decide the issue in question,” or when “probing
appellate scrutiny will not contribute to the
clarity of legal doctrine.” Id. [Tolbert, supra
at 682.]
When
faced
with
the
same
question,
however,
the
Seventh Circuit Court of Appeals concluded that a de novo
standard applies to a trial court’s determination whether a
prima
facie
Mahaffey,
showing
supra
at
of
discrimination
484.
The
Seventh
has
been
Circuit
made.
likewise
observed that whether the facts alleged by the opponent of
the peremptory challenge satisfied the opponent’s burden
under Batson’s first step is a mixed question of law and
fact.
Id.
Nonetheless, the Seventh Circuit opined that
“[t]he question of whether an inference of discrimination
may be drawn from a set of undisputed facts relating to the
racial
makeup
of
the
jury
venire
and
the
prosecutor’s
exercise of peremptory challenges is . . . one over which
the appellate courts should exercise a degree of control
19
that
a
clear
error
standard
would
not
afford.”
Id.
Moreover, in light of the importance of the constitutional
right implicated, the Seventh Circuit reasoned that the de
novo standard “would allow for a measure of consistency in
the
treatment
permitting
conclusions
of
similar
different
about
similar facts.”
trial
the
Id.
factual
judges
prima
facie
settings,
rather
to
inconsistent
reach
case
on
the
than
same
or
Thus, the Mahaffey Court concluded
that the de novo standard of review applies to the prima
facie showing of discrimination prong.
Similar to the Seventh Circuit, the Supreme Court of
Colorado has also concluded that Batson’s first step is
subject to review de novo.
591 (Colo, 1998).
Valdez v People, 966 P2d 587,
The Valdez court noted that the First,
Eighth, and Ninth circuits adhere to a clear error standard
when
reviewing
the
Batson framework.
prima
facie
determination
under
the
However, the Colorado Supreme Court also
observed that the Tenth Circuit Court of Appeals, as well
as appellate courts in Kansas, Tennessee, and Utah, have
concluded that Batson’s first step is subject to review de
novo.
Title
Weighing the aforementioned cases and turning to
VII
case
law
for
additional
guidance,
the
Valdez
court concluded:
the
Therefore, although we afford deference to
trial court's ultimate determination of a
20
Batson challenge in step three, we believe that
the first step involves a question of legal
sufficiency over which the appellate court must
have plenary review. We continue to defer to the
underlying
factual
findings,
including
any
predicate credibility determinations of the trial
court upon which its prima facie determination
under Batson is based. However, we hold that the
question of whether the defendant has established
a prima facie case under Batson is a matter of
law, and we apply a de novo standard of review to
a trial court’s prima facie determination of the
Batson analysis. [Valdez, supra at 591.]
We agree with those jurisdictions that have concluded
that Batson’s first step is appropriately categorized as a
mixed question of law and fact.
We, however, chose to
follow Michigan’s well-established procedure of reviewing
questions of law de novo and factual findings for clear
error.
People v McRae, 469 Mich 704, 710; 678 NW2d 425
(2004).
We thus conclude that the first Batson step is a
mixed question of fact and law that is subject to both a
clear error (factual) and a de novo (legal) standard of
review.
A trial judge must first find the facts and then
must decide whether those facts constitute a prima facie
case of discrimination under Batson and its progeny.
We acknowledge that the United States Supreme Court
has emphasized that the focus of Batson is not merely on
the individual criminal defendant.
See, e.g., Powers v
Ohio, 499 US 400, 405-410; 111 S Ct 1364; 113 L Ed 2d 411
(1991).
Rather, the focus is also on the integrity of the
21
judicial system, as well as the rights of the prospective
Id. at 410-414.11
jurors.
Unquestionably, ensuring the
integrity of the judicial process and maintaining fair jury
selection
procedures
are
paramount
concerns.
However,
these concerns do not persuade us that Batson’s first step
should
be
treated
any
questions of law and fact.
differently
than
other
mixed
Indeed, we believe that these
paramount concerns can be effectuated under our established
rules for appellate review.
Thus, until the United States
Supreme Court holds otherwise, under Batson’s first step,
we will review the questions of law de novo and the factual
findings for clear error.
3. Standard of Review for Batson’s Second Step
While there appears to be some disagreement about the
standard of review for Batson’s second step, we believe
that
those
jurisdictions
that
have
concluded
that
the
second step is subject to review de novo have the better
view.
See, e.g., United States v Bishop, 959 F2d 820, 821
n 1 (CA 9, 1992); Hurd v Pittsburg State Univ, 109 F3d
1540, 1546 (CA 10, 1997); Valdez, supra at 590.
11
We believe
See also Herman, Why the court loves Batson:
Representation-Reinforcement, colorblindness, and the jury,
67 Tul L R 1807, 1814-1815 (1993) (“A criminal defendant is
permitted to raise Batson challenges not on the theory that
his or her own rights have been violated, but rather on the
theory that he or she is being afforded standing to raise
the rights of a third party—the prospective juror.”).
22
that such an approach is consistent with controlling United
States
supra
Supreme
at
attorney’s
assuming
Court
359(“In
precedent.
evaluating
explanation,
the
challenges
a
See,
the
court
race
must
proffered
true,
are
reasons
challenges
the
e.g.,
Hernandez,
neutrality
determine
for
the
violate
of
an
whether,
peremptory
the
Equal
Protection Clause as a matter of law.”)(emphasis added).
It is important to bear in mind that it is not until
Batson’s
third
step
that
the
persuasiveness
of
the
proffered explanation for the peremptory challenge becomes
relevant.
Batson’s
Purkett,
second
step,
supra
a
at
court
768.12
is
only
Accordingly,
concerned
at
with
whether the proffered reason violates the Equal Protection
Clause as a matter of law.
See, e.g., United States v
Uwaezhoke, 995 F2d 388, 392 (CA 3, 1993) (“Thus, if the
government’s
explanation
does
not,
on
its
face,
discriminate on the basis of race, then we must find that
the explanation passes Batson muster as a matter of law,
12
See also Johnson, supra, ___ US ___; 125 S Ct 24172418; 162 L Ed 2d 140, quoting Purkett, supra at 768 (“The
first two Batson steps govern the production of evidence
that allows the trial court to determine the persuasiveness
of the defendant’s constitutional claim. ‘It is not until
the third step that the persuasiveness of the justification
becomes relevant--the step in which the trial court
determines whether the opponent of the strike has carried
his burden of proving purposeful discrimination.’”).
23
and
we
pass
determine
to
the
whether
third
the
step
of
race-neutral
Batson
and
analysis
facially
to
valid
reason was, as a matter of fact, a mere pretext for actual
discriminatory intent.”).
It is also important to bear in
mind that only in rare cases is the proffered explanation
facially invalid because such direct evidence is equally
rare.
We thus conclude that the de novo standard governs
appellate review of Batson’s second step.
4. Standard of Review for Batson’s Third Step
It is well-settled that a trial court’s determination
concerning whether the opponent of the peremptory challenge
has
satisfied
the
ultimate
burden
of
proving
purposeful
discrimination is a question of fact that is reviewed for
clear error.
Hernandez, supra at 364-365; United States v
Hill, 146 F3d 337, 341 (CA 6, 1998).
court’s
ultimate
deference.
factual
finding
Moreover, the trial
is
Miller-El I, supra at 340.
accorded
great
The United States
Supreme Court has observed that “[d]eference to trial court
findings
on
the
issue
of
discriminatory
intent
makes
particular sense in this context because . . . the finding
‘largely
will
turn
on
evaluation
of
credibility.’”
Hernandez, supra at 365, quoting Batson, supra at 98 n 21.
Accordingly, the “clear error” standard comports with the
concept
that
assessment
of
credibility
24
lies
within
the
trial court’s province.13
In accordance with well-settled
law, we thus conclude that the clear error standard governs
appellate review of a trial court’s resolution of Batson’s
third step.
5. Summary of Batson Standard of Review
In sum, we conclude that the proper standard of review
depends on which Batson step is before us.
If the first
step is at issue (whether the opponent of the challenge has
satisfied his burden of demonstrating a prima facie case of
13
See, e.g., Miller-El I, supra at 339-340 (internal
citations omitted):
Credibility can be measured by, among other
factors, . . . demeanor; by how reasonable, or
how improbable, the explanations are; and by
whether the proffered rationale has some basis in
accepted trial strategy.
* * *
“Deference to trial court findings on the
issue of discriminatory intent makes particular
sense in this context because, as we noted in
Batson, the finding ‘largely will turn on
evaluation of credibility.’
In the typical
peremptory
challenge
inquiry,
the
decisive
question will be whether counsel's race-neutral
explanation for a peremptory challenge should be
believed.
There will seldom be much evidence
bearing on that issue, and the best evidence
often will be the demeanor of the attorney who
exercises the challenge.
As with the state of
mind of a juror, evaluation of the prosecutor's
state of mind based on demeanor and credibility
lies
‘peculiarly
within
a
trial
judge’s
province.’”
25
discrimination),
we
review
the
trial
court’s
underlying
factual findings for clear error, and we review questions
of law de novo.
(whether
the
If Batson’s second step is implicated
proponent
of
the
peremptory
challenge
articulates a race-neutral explanation as a matter of law),
we review the proffered explanation de novo.
the
third
step
is
at
issue
(the
Finally, if
trial
court’s
determinations whether the race-neutral explanation is a
pretext
and
proved
whether
purposeful
the
opponent
discrimination),
of
the
we
challenge
review
the
has
trial
court’s ruling for clear error.
C. Remedies for Batson Violations
In the present case, defense counsel did not object to
the
dismissal
Although
Batson
he
of
veniremembers
referred
objection,
he
veniremember Jones.
to
only
Bonner
Bonner
and
objected
and
Johnson
to
the
Johnson.
during
his
dismissal
of
Therefore, in this case, the Batson
objection only pertains to the dismissal of veniremember
Jones.
In order to ensure that a trial court remedies all
purposeful discrimination, however, courts should apply the
Batson objection to all strikes in an alleged pattern.
In order for a pattern of strikes to develop, several
jurors might be struck without objection until a pattern
begins to emerge.
If a trial court allowed earlier strikes
26
in a pattern to stand without taking remedial action, the
court
would
potentially
discrimination.
be
Therefore,
most
allowing
purposeful
jurisdictions
do
not
consider a Batson objection waived if the prosecution fails
to raise it immediately following the strike.
The case of State v Ford, 306 Mont 517, 523; 39 P3d
108 (2001), provided a thorough discussion of the rulings
in
different
preservation.
jurisdictions
Several
regarding
jurisdictions
held
Batson
that
a
error
Batson
challenge must be made before the jury is sworn, or else
the issue is waived.14
the stance that a
Additionally, numerous courts take
Batson
challenge must also be raised
before the court dismisses the venire.15
Batson
objections
veniremembers
left
were
the
waived
One case held that
once
courthouse,
the
but
stricken
the
court
14
See State v Wilson, 117 NM 11; 868 P2d 656 (NM App,
1993); United States v Cashwell, 950 F2d 699, 704 (CA 11,
1992); United States v Dobynes, 905 F2d 1192, 1196 (CA 8,
1990). See also People v Hudson, 157 Ill 2d 401; 626 NE2d
161 (1993).
15
See United States v Biaggi, 909 F2d 662, 679 (CA 2,
1990); Government of Virgin Islands v Forte, 806 F2d 73, 76
(CA 3, 1986); Morning v Zapata Protein (USA), Inc, 128 F3d
213, 216 (CA 4, 1997); United States v Abou-Kassem, 78 F3d
161, 167 (CA 5, 1996); United States v Rodriguez, 917 F2d
1286, 1288 (CA 11, 1990); State v Cummings, 838 SW2d 4 (Mo
App, 1992); Sorensen v State, 6 P3d 657, 662 (Wy, 2000);
State v Harris, 157 Ariz 35, 36; 754 P2d 1139 (1988).
27
nonetheless underwent a Batson analysis for each of the
discharged veniremembers in the pattern.16
There are several reasons why courts require a party
to raise a Batson challenge before the venire is dismissed.
First, the Batson objection warns the prosecutor, or the
person
peremptorily
required
to
strike.
striking
provide
a
juror,
race-neutral
that
he
explanations
might
be
for
the
United States v Erwin, 793 F2d 656 (CA 5, 1986).
Furthermore, if a court finds a Batson violation after the
venire
is
dismissed,
selection
process
Cummings,
838
then
there
and
a
new
4,
6
(Mo
SW2d
must
venire
App,
be
a
called.
1992).
If
new
jury-
State
a
v
Batson
challenge is made before the venire is discharged, however,
the
trial
court
can
immediately
correct
the
error
and
disallow the strike. See State v Parker, 836 SW2d 930 (Mo,
1992).
16
In State v Jacobs, 803 So 2d 933 (La, 2001), the
Louisiana Supreme Court held that the objections to the
first three jurors were untimely, and thus waived, because
“the jurors were no longer ‘under any instructions’ in the
case.” Id. at 939. The reason why Jacobs might not be
easily applicable to other cases, however, is that the
judge “effectively collapse[d] the first two stages of the
Batson procedure . . . [and performed] the crucial third
step of weighing the defendant’s proof and the prosecutor’s
race-neutral reasons to determine discriminatory intent.”
Id. at 941. Therefore, although the judge claimed that the
objection was untimely, he nonetheless undertook a Batson
analysis and determined that there were race-neutral
reasons for the jurors’ dismissals.
28
Therefore,
in
order
to
preserve
the
option
of
reseating improperly stricken jurors, the court in Parker
suggested
that
“[t]rial
courts
should
refrain
from
releasing venirepersons who have been peremptorily struck
until the venire is excused.” Id. at 936 n 3.
Requiring courts to retain stricken jurors until the
end of jury selection, however, could potentially burden
trial courts and citizens called in for jury service if the
selection process lasts several days.
difficulties
in
retaining
stricken
Because of the
jurors,
this
Court
concludes that a Batson challenge is timely if it is made
before the jury is sworn. It must be noted, however, that
if stricken veniremembers are dismissed and later found to
be part of a pattern of discriminatory strikes, the only
remaining
remedy
for
the
Batson
violation
would
be
to
discharge the entire venire and start the process anew. A
court may not ignore or fail to remedy the prior improper
strikes
simply
because
the
court
already
dismissed
the
veniremembers.
In
neutral
the
present
explanations
case,
for
the
her
prosecutor
exclusion
provided
of
race-
veniremembers
Bonner and Johnson, even though defense counsel did not
specifically object to their dismissals.
The trial judge
stated that she was not “satisfied with the prosecutor’s
29
response
as
to
potential
juror
Jones
and
Johnson,”
but
because they already left, she did not rule on whether the
prosecutor engaged in purposeful discrimination.
Instead,
she instructed the attorneys to be careful “from this point
on” with their selections.
If the judge had found a Batson
error, however, her only remedial option would have been to
dismiss the entire venire and select the jury from a new
panel
because
she
had
already
dismissed
the
stricken
veniremembers.
III. Analysis
The
record
reflects
that
the
trial
judge
never
explicitly found that the prosecutor violated Batson.
can we infer such a finding on this record.
Nor
Instead, the
record is susceptible to the fair inference that the trial
judge acted to preserve the presence of minority jurors on
the
panel,
knowing
that
the
jury
chance, was largely Caucasian.
pool,
as
a
matter
of
Protecting a defendant’s
right to a fair and impartial jury does not entail ensuring
any particular racial composition of the jury.17
The goal
17
See, for example, a recent proposal to amend MCR
6.412.
This proposed court rule would expressly prohibit
the use of peremptory challenges to achieve a racially
proportionate jury. It states:
(F) DISCRIMINATION
IN THE SELECTION PROCESS.
(continued…)
30
of Batson and its progeny is to promote racial neutrality
in the selection of a jury and to avoid the systematic and
intentional
exclusion
of
any
racial
group.
Taylor
v
Louisiana, 419 US 522, 538; 95 S Ct 692; 42 L Ed 2d 690
(1975); Holland v Illinois, 493 US 474, 476-480; 110 S Ct
803; 107 L Ed 2d 905 (1990).
As a threshold matter, we must note that our task in
resolving these cases is difficult, in large part, because
of
the
Batson
trial
judge’s
procedures
articulate
her
failure
and,
findings
more
and
to
rigorously
importantly,
conclusions
on
follow
the
to
clearly
the
record.
Therefore, under these circumstances, we must fairly read
the record to determine exactly what the trial judge found
and concluded in light of defendants’ Batson objections.
On
the
basis
of
our
reading
of
the
voir
dire
transcripts, we conclude that the trial court did not, in
(…continued)
(1) No
person
shall
be
subjected
to
discrimination during voir dire on the basis of
race, color, religion, national origin, or sex.
(2) Discrimination during voir dire on the
basis of race, color, religion, national origin,
or sex for the purpose of achieving what the
court believes to be a balanced, proportionate,
or
representative
jury
in
terms
of
these
characteristics shall not constitute an excuse or
justification for a violation of this subsection.
[See Michigan Bar Journal, June 2005, p 64.]
31
fact, find a Batson violation and, thus, there is no error
to complain of in these cases.
The trial judge’s initial
expression of dissatisfaction with the prosecutor’s raceneutral
reasons,
subsequent
when
remarks
considered
that
“we
are
in
context
getting
with
close
to
her
a
sensitive issue,” related to her concern about the number
of minority veniremembers left on the panel.
The judge
further articulated her actual motivation in the following
excerpt:
“I
think
all
of
us
are
being,
trying
to
be
conscientious about the selection of these jurors because
of the racial makeup of the jury panels, which we don’t
have any control over.”
The trial judge’s remarks do not
reflect a finding that the prosecutor engaged in purposeful
discrimination.
Rather, the comments demonstrate that her
true
was
motivation
to
ensure
balance in the jury panel.
some
modicum
of
racial
Use of peremptory challenges,
however, to ensure racial proportionality in the jury is
prohibited by Batson and will be prohibited by proposed MCR
6.412(F) if adopted.18
18
Justice Cavanagh states that we rely on the above
proposed court rule to support the proposition that the use
of peremptory challenges to ensure racial proportionality
in the jury is prohibited. We do not rely on the proposal
to support this proposition. Rather, we cite to it to show
that this Court is considering steps to prevent such
problems from occurring in the future.
32
The
trial
judge
never
expressly
found
that
the
prosecutor exercised peremptory challenges for a racially
discriminatory reason.
In fact, her comments at the end of
jury selection suggest a contrary conclusion.
judge
was
more
concerned
with
achieving
a
The trial
proportionate
racial composition on the jury than with the exclusion of
veniremember
Jones.
She
ultimately
concluded
that
no
Batson violation existed because a satisfactory number of
African-American females were still present on the jury.
We reject Justice Cavanagh’s conclusion that the trial
judge ever found that defense counsel met his burden of
proving
purposeful
discrimination.
Rather,
the
trial
judge’s focus, as her comments reflect, was to ensure that
the racial composition of the jury remained proportionate.
The
purpose
of
Batson
is
to
prevent
discriminatory
exclusions of veniremembers on the basis of race or gender.
Here, the jury pool, by chance, contained a greater number
of Caucasians than African-Americans.
preoccupied with this fact.
The trial judge was
Her Batson analysis seemed to
be infused with and confused by the erroneous belief that
Batson is violated if the challenge resulted in too few
minority
jurors.
The
trial
judge’s
statements
did
not
imply that she would have kept Jones and Johnson on the
jury because she thought they had been wrongfully excluded
33
on the basis of race.
Rather, her statements implied that
she would have kept them on the jury to ensure that the
number of African-American jurors remained proportionate to
the number of Caucasian jurors.
The trial judge failed to recognize that a defendant
is
not
entitled
to
a
jury
of
a
particular
racial
composition as long as no racial group is systematically
and intentionally excluded.
supra at 476-480.19
Taylor, supra at 538; Holland,
Defendants’ jury was drawn from a fair
cross section of the community.
Nor was any racial group
systematically excluded.
IV. Conclusion
On
the
basis
of
our
reading
of
the
voir
dire
transcripts, we hold no Batson violation occurred in this
case and the trial judge neither explicitly nor implicitly
found such a violation.
Giving the appropriate degree of
deference to the trial judge’s ultimate finding that the
19
See also United States v Ovalle, 136 F3d 1092, 1107
(CA 6, 1998), in which the United States Court of Appeals
for the Sixth Circuit struck down the Eastern District of
Michigan’s
jury
selection
plan,
which
utilized
the
“subtraction” method of balancing the jury pool to ensure
proportional representation of various racial groups within
the community.
It held, “The selection of the grand and
petit juries from a qualified jury wheel that was derived
through racially discriminatory means, and the fact that
the Jury Selection Plan was not narrowly tailored to meet
any compelling governmental interest, constitute grounds
for reversal of the defendants’ convictions.”
34
prosecutor did not engage in purposeful discrimination, we
affirm defendants’ convictions.
Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman
35
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 124996
JEROME L. KNIGHT,
Defendant-Appellant.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 125101
GREGORY M. RICE,
Defendant-Appellant.
_______________________________
WEAVER, J. (concurring).
I concur in the majority’s conclusion that, on a fair
reading of the record, the trial court did not find that
prospective jurors were excluded on the basis of race in
violation of Batson v Kentucky, 476 US 79; 106 S Ct 1712;
90
L
Ed
2d
prosecutor
69
(1986).
exercised
During
peremptory
jury
challenges
prospective jurors Johnson and Bonner.
not object.
exercised
a
selection,
to
the
excuse
Defense counsel did
A short time later, after the prosecution
peremptory
challenge
to
excuse
prospective
juror Jones, defense counsel asked to approach the bench.
Defense counsel objected to excusing Jones, asserting that
she was being excused because she was black.
to
defense
explained
counsel’s
her
reasons
Johnson and Bonner.
assertion,
for
the
excusing
In response
prosecutor
Jones,
as
then
well
as
Throughout the discussion, the trial
court stated that “we are getting close to a serious issue
here.”
or
And after noting that the trial court has to accept
reject
the
prosecutor’s
reasons,
determining
whether
they are race-neutral or not, the trial court stated:
“And
I’m not, I’m saying that I think we’re getting close to a
sensitive issue here on Jones and Johnson.
saying.
I’m
making
my
record
too.”
That’s all I’m
When
this
entire
response is considered, it suggests that the trial court
was not finding that a Batson violation had occurred, but
was simply cautioning the parties that they may be getting
“close”
to
a
sensitive
issue.
Getting
“close
to
a
sensitive issue” is not the same thing as finding that a
Batson violation has occurred and a prospective juror has
been improperly excused on the basis of race.1
1
Unlike the majority, I do not speculate with regard
to the reasons for the trial court’s statements. I simply
conclude that after a fair reading of the record, the trial
court did not find that a Batson violation had occurred.
2
Because I conclude that the trial court did not find
that
a
Batson
concerning
the
violation
standard
occurred,
of
review
I
express
for
Batson
no
opinion
violations
under steps two and three of the test or the appropriate
remedies for Batson violations.
Elizabeth A. Weaver
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 124996
JEROME L. KNIGHT,
Defendant-Appellant.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 125101
GREGORY M. RICE,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the legal principles announced in parts
II(A)
1
and
II(B)
of
the
majority’s
opinion.1
I
write
I do not join part II(C) of the majority opinion
because I do not believe that these cases are the proper
vehicle to explore when a Batson v Kentucky, 476 US 79; 106
S Ct 1712; 90 L Ed 2d 69 (1986), objection must be raised.
In these cases, the Batson objections were made in a
relatively timely manner.
In this regard, these cases do
not present a situation where a party is raising the Batson
objection for the first time on appeal. Further, these are
not cases where a party waited until the end of trial to
make a Batson objection.
While I applaud the majority’s
(continued…)
separately because I disagree with the majority’s reading
of the record.
record
I believe that an evenhanded reading of the
demonstrates
that
the
trial
court
found
that
prospective jurors were excluded on the basis of race in
violation of Batson v Kentucky, 476 US 79; 106 S Ct 1712;
90 L Ed 2d 69 (1986), and its progeny.
Further, I would
hold that the trial court correctly made this determination
under
Batson’s
three-step
test.2
Upon
making
this
determination, however, the trial court reasoned that any
Batson violation was cured by the eventual makeup of the
jury because “the same number if not more” unchallenged
African-American
jurors
remained
ultimately decided these cases.
on
the
panel
that
I would hold that the
(…continued)
efforts to clarify our Batson jurisprudence and provide our
lower courts guidance, I must nonetheless refrain from
joining part II(C) of the majority opinion.
Because the
timeliness of the Batson objections in these cases is not
at issue, I would prefer to decide the larger issue of when
a Batson objection must be lodged in a more suitable case.
2
Batson’s three-step process is as follows: (1) the
opponent of the peremptory challenge must make a prima
facie showing of discrimination; (2) if the trial court
determines that a prima facie showing has been made, the
burden shifts to the proponent of the peremptory challenge
to articulate a race-neutral explanation for the strike;
and
(3)
if
the
proponent
provides
a
race-neutral
explanation, the trial court must then determine whether
the race-neutral explanation is a pretext and whether the
opponent
of
the
challenge
has
proved
purposeful
discrimination. Batson, supra at 96-98.
2
initial
Batson
violation
was
not
cured
by
the
eventual
makeup of the jury and, thus, the trial court erred by
continuing the proceedings in this manner.
Accordingly, I
would reverse the judgments of the Court of Appeals and
remand these cases for new trials.
I. Factual Background
During jury selection, defendants raised objections to
the prosecutor’s use of her peremptory challenges.
On the
first and second days of jury selection, the prosecutor
exercised a total of four peremptory challenges.
On the
third day, the prosecutor exercised three more peremptory
challenges.
exercised
Of the seven challenges the prosecutor had
at
that
point,
three
were
against
African-
American veniremembers, one male and two females.
After
the prosecutor exercised her third challenge on day three,
and after the court recessed for lunch, defense counsel
raised a Batson objection.
Defense
counsel
argued
that
the
prosecutor
was
excluding African-American veniremembers on the basis of
race, specifically African-American males.
The prosecutor
responded by arguing that a pattern of discrimination was
not present, noting that she struck four Caucasians and
only
three
argued,
African-Americans.
only
one
of
the
Moreover,
excluded
3
the
prosecutor
African-Americans
was
male.
While continuing to assert that the first step of
Batson was not satisfied, the prosecutor also explained her
reasons
court
for
found
excluding
that
the
Batson
African-Americans.
had
not
been
The
violated
trial
at
that
point, stating:
But in this particular case and this
particular matter, I do not see a pattern of the
prosecution improperly excluding African American
males, because they’ve only excluded one, or
African American females where two have been
excluded.
I think the reasons are acceptable.
don’t see a problem there.
The
trial
court
then
recessed
for
lunch,
So I
and
the
veniremembers returned to the courtroom after the break.
When jury selection resumed, the prosecutor exercised
peremptory
challenges
Bonner, and Jones.
to
exclude
veniremembers
Johnson,
After the prosecutor sought to exclude
veniremember Jones, defense counsel asked to approach the
bench, and the trial court directed the veniremembers to
leave the courtroom for a few minutes.
Defense counsel
objected to the exclusion of these three African-American
females on Batson grounds.
The trial court did not make
any findings at this time; rather, the prosecutor argued
that
veniremember
Bonner
was
excluded
because
she
was
closely related to two people who have been convicted of
first-degree murder, not because she was African-American.
4
The prosecutor further asserted that veniremember Johnson
was excluded because she had a close relative convicted of
a
drug
Finally,
charge
the
and
she
was
prosecutor
“hesitant
explained
in
that
her
demeanor.”
she
excluded
veniremember Jones because Jones had a child close to the
age of the victim and Jones was a professional working
person.
a
The trial court then noted that veniremember Berg,
Caucasian
female
who
was
also
a
professional
working
person, was not challenged and excluded from service.
following exchange then occurred:
The Court: Just before we recessed for
lunch, I thought that it was very clear that we
didn’t have a problem here.
But now I think we
are getting very close to a sensitive issue.
I didn’t see a problem with-[Counsel
for
Johnson, Your Honor.
Defendant
Knight]:
Miss
The Court:
--Christine Johnson.
She was,
actually her demeanor was soft and she seemed
very forthright and honest.
And I understand
with Miss Bonner, I didn’t see any problems with
that.
But I was very surprised about Miss
Johnson.
I didn’t say anything because the
defense didn’t object. So I didn’t object.
The same thing with Miss Jones.
I do not
see a reason other than--I mean, it seems to me
for the prosecution to say, she has a daughter
the same age as the victim, that would seem to
work in the prosecution’s favor, just in terms of
thinking in the jury selection.
So I don’t
accept that.
[The Prosecutor]: Your Honor,--
5
The
The Court: I do see that we are getting
close, and there are, I don’t know two or three
minority jurors left in this panel.
So I think
we are getting close to a serious issue here.
I wish that somebody had said something
about keeping Miss Jones and Miss Johnson.
And
then we address this matter because I probably
would not have excused either one of them.
* * *
[The Prosecutor]: Under Batson . . ., [a]
prosecutor has to explain peremptory challenges
with a neutral reason.
As long as I come up with a neutral reason
for their dismissal, I believe that that’s
appropriate. And I given-The Court: But the Court has to accept or
reject whether the reason is neutral or not.
[The Prosecutor]: I understand.
The Court: And I’m not, I’m saying that I
think we’re getting close to a sensitive issue
here on Jones and Johnson.
That’s all I’m
saying. I’m making my record too.
* * *
The Court: We have to [be] realistic here.
I really don’t want any problems with this case,
especially along these lines.
I’m not satisfied with the prosecutor’s
response as to potential juror Jones and Johnson.
But I think they’ve already left.
* * *
I’m just saying, I let Jones and Johnson go
without holding them, especially Jones.
I guess
I should have held her and I didn’t do that.
I’ll take the fault for that.
But from this
point on let’s try to be careful with this jury
selection.
We are close to getting this jury
selected. [Emphasis added.]
6
Defense
counsel
inquired
whether
Johnson
and
Jones
could be located; however, these veniremembers had already
left the building.
The panel was then called back into the
courtroom, and jury selection was completed.
At the end of
selection, the trial court observed:
With the panel that we ended up with, I
think that any Batson problems that may have been
there have been cured.
We have the same number if not more jurors,
African American female jurors on the panel as if
we had kept Miss Christina Johnson and Miss Ruby
Jones.
I don’t think either
this panel for any reason
these are the ones who
impartial persons to hear
side ended up selecting
other than I think that
will be the fair and
and try this case.
In the end, the jury convicted defendant Knight of firstdegree murder and codefendant Rice of first-degree murder
and possession of a firearm during the commission of a
felony.
II. Analysis
I agree with the majority that this Court’s “task in
resolving these cases is difficult, in large part, because
of
the
Batson
trial
judge’s
procedures
articulate
Ante at 31.
her
failure
and,
findings
more
and
to
rigorously
importantly,
conclusions
on
follow
the
to
clearly
the
record.”
On the basis of its reading of the voir dire
transcripts, the majority concludes that the trial court
7
did not, in fact, find a Batson violation and, thus, there
is no error to complain of in these cases.
With respect to
veniremembers Johnson and Jones, I respectfully disagree
and would conclude that the trial court believed that these
veniremembers
were
violation of Batson.
excluded
on
the
basis
of
race
in
I am simply hard pressed to find
anything in the record from which it can be fairly said
that the trial court did not conclude that Johnson and
Jones were excluded on the basis of race.
On the third day of jury selection, and after the
lunch recess, defense counsel raised a Batson challenge to
the exclusion of veniremembers Johnson, Bonner, and Jones.3
3
This Batson challenge should not be confused with a
similar objection defense counsel raised earlier that day.
While the earlier objection provides some context for the
later objection, I am concerned with the trial court’s
treatment of the later Batson objection—i.e., the objection
to the exclusion of veniremembers Johnson and Jones.
Moreover, the majority posits that defense counsel’s
initial objection, as well as counsel’s other objections,
demonstrates counsel’s misunderstanding of Batson.
I
disagree.
Defense counsel initially asserted that the
prosecutor had engaged in a pattern of systematically
excluding African-American veniremembers.
To establish a
prima facie case of discrimination based on race under
Batson’s first step, the opponent must show that (1) he or
she is a member of a cognizable racial group; (2) the
proponent has exercised a peremptory challenge to exclude a
member of a certain racial group from the jury pool; and
(3) all the relevant circumstances raise an inference that
the proponent of the challenge excluded the prospective
(continued…)
8
The trial court did not decide whether defendants satisfied
Batson’s first step by making a prima facie showing of
racial discrimination.
Instead, the prosecutor volunteered
her reasons for the exclusions and attempted to proffer
race-neutral
After
explanations
considering
the
for
the
proffered
peremptory
explanations,
challenges.
the
trial
court rejected them, stating “I don’t accept that,” and
“I’m not satisfied with the prosecutor’s response as to
potential juror Jones and Johnson.”
I find the following
exchange particularly illustrative:
[The Prosecutor]: Under Batson . . . , [a]
prosecutor has to explain peremptory challenges
with a neutral reason.
As long as I come up with a neutral reason
for their dismissal, I believe that that’s
appropriate. And I given--
(…continued)
juror on the basis of race.
Batson, supra at 96.
A
pattern of strikes against members of a certain racial
group
certainly
constitutes
a
relevant
circumstance.
Indeed, as the Batson Court itself noted, “a ‘pattern’ of
strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.”
Id. at 97. Batson and its progeny do not require a pattern
to be shown because the striking of even a single juror on
the basis of race violates the Constitution. See, e.g., J
E B v Alabama ex rel TB, 511 US 127, 142 n 13; 114 S Ct
1419; 128 L Ed 2d 89 (1994). However, a pattern of strikes
against a particular racial group is still significant
because it may give rise to an inference of discrimination.
Thus, defense counsel’s remarks do not demonstrate his
misunderstanding of Batson.
9
The Court: But the Court has to accept or
reject whether the reason is neutral or not.
The Prosecutor: I understand.
The Court: And I’m not . . . .
On the basis of my review of the record, the only
conclusion that can be fairly drawn is that the trial court
believed
that
veniremembers
Johnson
and
Jones
were
improperly excluded from the jury pool on the basis of
race.
In my view, the trial court effectively saw itself
deciding
Batson’s
prosecutor’s
purposeful
third
explanations
discrimination
prong,
were
had
and
a
been
concluded
pretext
that
the
and,
thus,
demonstrated.
This
conclusion also finds record support where the trial court
expressed regret for dismissing Johnson and Jones and not
being able to reseat these prospective jurors.
Nor am I persuaded by the prosecutor’s argument that
the
trial
have
been
court
preliminarily
violated,
violation occurred.4
but
concluded
ultimately
that
Batson
concluded
that
may
no
While this argument may be plausible
4
The prosecutor directs this Court’s attention to the
following comments by the trial court:
With the panel that we ended up with, I
think that any Batson problems that may have been
there have been cured.
(continued…)
10
in some instances, this is not one of them.
I believe that
the trial court’s comments noting that any Batson violation
had been cured, and that “this panel” was not selected on
racial grounds, did not alter the trial court’s conclusion
that veniremembers Johnson and Jones were excluded on the
basis of race.
Stated differently, nothing in the record
suggests that the trial court retracted its finding that
Johnson and Jones were excluded in violation of Batson.
While the record demonstrates that the trial court may have
believed that “this panel” (the jury actually empaneled)
was not subjected to discrimination and the trial court may
have
been
concerned
with
the
racial
composition
of
the
jury, the record clearly shows that the trial court also
believed that excluded veniremembers Johnson and Jones were
subjected to discrimination.
(…continued)
We have the same number if not more jurors,
African American female jurors on the panel as if
we had kept Miss Christina Johnson and Miss Ruby
Jones.
I don’t think either
this panel for any reason
these are the ones who
impartial persons to hear
side ended up selecting
other than I think that
will be the fair and
and try this case.
Notably, the majority relies heavily on this same passage
for the proposition that no Batson error occurred at all.
11
In
sum,
I
reveals
that
the
would
conclude
trial
court
that
found
the
a
record
Batson
fairly
violation
because it rejected the prosecutor’s proffered explanations
and would have recalled Johnson and Jones to sit on the
jury
if
they
could
have
been
located.
An
evenhanded
reading of the record shows that the trial court never
retreated from its finding that these veniremembers were
excluded on the basis of race.
majority
and
suspect
that
I tend to agree with the
some
of
the
trial
court’s
statements arguably stemmed from its desire to ensure a
racially mixed jury and that such a desire is prohibited by
Batson and its progeny.5
Motivations aside, however, that
does not change the fact that the trial court concluded
that Johnson and Jones were excluded on the basis of race.
In other words, regardless of the trial court’s main goal,
or the goal ascribed to it by the majority, the record
clearly demonstrates that the trial court along the way
also
found
that
purposeful
discrimination
5
occurred
in
I disagree, however, with the majority’s reliance on
a proposed court rule that may be adopted sometime in the
future.
See ante at 31 n 17, 32.
Instead, I prefer to
simply examine this case under the constitutional concerns
set forth in Batson and its progeny rather than rely on a
proposed court rule that has not even taken effect.
12
violation of Batson.6
Because I conclude that the trial
court found that Batson had been violated, the question
becomes whether this determination was proper.
The prosecution argues that even if the trial court
found a Batson violation, the proffered explanations were
race-neutral and the trial court erred when it concluded
that
the
reasons
were
a
pretext.
Accordingly,
the
prosecution is questioning the trial court’s resolution of
Batson’s second and third steps.7
Thus, I would, consistent
with this Court’s stated approach, review de novo whether
the prosecutor articulated a race-neutral explanation for
the strike as a matter of law.
United States v Uwaezhoke,
6
We should be mindful that our role is not to search
for any plausible reason to avoid concluding that a trial
court found that discrimination indeed occurred.
See,
e.g., Miller-El v Dretke, __ US __; __ S Ct __; __ L Ed 2d
__; 2005 US LEXIS 4658 *39 (2005) (Miller-El II) (If a
prosecutor’s proffered reason for a peremptory challenge
“does not hold up, its pretextual significance does not
fade because a trial judge, or an appeals court, can
imagine a reason that might not have been shown up as
false.”). Like the majority, I could imagine many reasons
to explain away the lower court proceedings.
But this
would not change the fact that the trial court concluded
that discrimination occurred in violation of Batson.
Again, while the record is not a model of clarity, I simply
cannot ignore or explain away the trial court’s conclusion.
7
Appellate review of Batson’s first step is not
implicated in these cases.
See Hernandez v New York, 500
US 352, 359; 111 S Ct 1859; 114 L Ed 2d 395 (1991)
(plurality opinion).
13
995 F2d 388, 392 (CA 3, 1993).
Further, I would review for
clear error the trial court’s determinations whether the
race-neutral
explanations
were
a
pretext
and
whether
defendants proved purposeful discrimination, according the
trial
court’s
findings
high
deference.
Miller-El
v
Cockrell, 537 US 322, 340; 123 S Ct 1029; 154 L Ed 2d 931
(2003) (Miller-El I).
I
agree
with
the
prosecution
that
the
proffered
explanations for the peremptory challenges were facially
valid under the Equal Protection Clause as a matter of law.
The proponent of the peremptory challenge cannot satisfy
his or her burden under Batson’s second step “by merely
denying that he had a discriminatory motive or by merely
affirming his good faith.”
Purkett v Elem, 514 US 765,
769; 115 S Ct 1769; 131 L Ed 2d 834 (1995).
Rather, the
proponent of a strike “must give a ‘clear and reasonably
specific’
explanation
exercising
the
of
his
challenges,”
and
‘legitimate
the
reasons’
explanation
“related to the particular case to be tried.”
supra
at
98
&
n
20,
quoting
Texas
Dep’t
of
must
for
be
Batson,
Community
Affairs v Burdine, 450 US 248, 258; 101 S Ct 1089; 67 L Ed
2d 207 (1981). “What it means by a ‘legitimate reason’ is
not a reason that makes sense, but a reason that does not
deny equal protection.”
Purkett, supra at 769.
14
In other
words, the proffered reason does not always have to make
perfect sense as long as the reason does not deny equal
protection of the law.
Here, the prosecutor’s explanations
for excluding veniremembers Johnson and Jones were based on
something other than their race.
360.
Further,
discriminatory
See Hernandez, supra at
intent
was
not
inherent in the prosecutor’s explanations.
believe
that
the
prosecutor’s
necessarily
Id.
explanations
Thus, I
were
race-
neutral as a matter of law, and the trial court properly
proceeded to the third step of the Batson inquiry.
According
high
deference
to
the
trial
court’s
findings, I cannot say under these circumstances that the
trial court clearly erred under Batson’s third step when it
concluded
that
veniremembers
Johnson
excluded on the basis of race.
and
Jones
Resolution of
had
been
Batson’s
third step largely hinges on the evaluation of credibility,
and “evaluation of the prosecutor’s state of mind based on
demeanor and credibility lies ‘peculiarly within a trial
judge’s province.’”
omitted).
Here,
Miller-El I, supra at 339 (citation
the
trial
court
rejected
defendants’
Batson challenge that was lodged earlier in the day.
the
lunch
recess,
however,
the
record
reveals
After
that
the
trial court became suspicious of the prosecutor’s method of
exercising peremptory challenges.
15
In light of defendants’
objection
to
the
exclusion
of
veniremembers
Johnson
and
Jones, and after observing the prosecutor’s demeanor and
listening
to
challenges,
the
proffered
the
trial
reasons
court
for
the
concluded
peremptory
that
these
veniremembers were excluded on the basis of race.
The
trial
court
noted
that
one
of
the
proffered
reasons for excluding Jones (that she was a professional
working person) applied with equal force to a Caucasian
woman who the prosecutor did not attempt to peremptorily
challenge.
The
prosecutor
explained
that
she
excluded
veniremember Jones because Jones had a child close to the
age of the victim and Jones was a professional working
person.
a
The trial court then noted that veniremember Berg,
Caucasian
female
who
was
also
a
professional
working
person, was not challenged and excluded from service.
e.g.,
Miller-El
II,
supra
at
*21
(“If
a
See,
prosecutor’s
proffered reason for striking a black panelist applies just
as well to an otherwise-similar nonblack who is permitted
to
serve,
that
is
evidence
tending
to
prove
purposeful
discrimination to be considered at Batson’s third step.”).
Further, all three challenges exercised by the prosecutor
after
the
recess
were
made
against
African-Americans.
Thus, out of the ten peremptory challenges exercised by the
prosecutor,
six
were
against
16
African-Americans.
While
these
facts
alone
certainly
may
not
always
justify
a
conclusion of purposeful discrimination in every case, the
prosecutor’s rationales, coupled with her demeanor, could
have affected the trial court’s credibility determination.8
In light of the high degree of deference accorded to a
trial court’s credibility assessment in the Batson arena, I
cannot say the trial court clearly erred when it found that
the
prosecutor’s
reasons
for
Johnson and Jones were a pretext.
excluding
veniremembers
Thus, I would conclude
that the trial court properly found that the prosecutor
violated Batson when she excluded Johnson and Jones on the
basis of their race.
In light of this conclusion, it must be determined
whether, upon learning that Johnson and Jones could not be
located, the trial court erred in proceeding in the manner
that it did; namely, deciding that any Batson violation had
8
For example, in Miller-El I, supra at 342-343, the
United States Supreme Court noted that the prosecution’s
reasons for striking African-American members of the venire
appeared race-neutral in that case. However, the fact that
the prosecutor used ten of the fourteen challenges to
exclude African-Americans, and three of the prosecution’s
race-neutral
rationales
for
striking
African-American
veniremembers pertained just as well to some Caucasian
veniremembers who were not challenged and who did serve on
the jury, might suggest that the challenges were selective
and based on racial considerations. See also Miller-El II,
supra at *21.
17
been
“cured”
because
African-American
the
jurors
“same
sat
number
on
if
not
defendants’
more”
of
jury.
I
conclude that the trial court erred in proceeding in this
fashion.
Such an approach not only ignores the structural
nature of a Batson violation, but directly conflicts with
the propositions on which Batson and its progeny are based.
“Jury
citizenship
those
who
service
by
all
otherwise
is
an
exercise
members
of
might
not
contribute to our civic life.”
the
of
responsible
community,
have
the
including
opportunity
to
Powers v Ohio, 499 US 400,
402; 111 S Ct 1364; 113 L Ed 2d 411 (1991).
Allowing
racial discrimination in the jury-selection process to go
unremedied
“offends
the
integrity of the courts.”
dignity
Id.
of
persons
and
the
Doing nothing is not an
available remedy when a trial court is confronted with a
recognizable Batson violation.9
9
The Batson Court made it clear that state courts are
to be accorded wide latitude in fashioning a remedy in
light of a violation. Batson, supra at 99 n 24. There are
two well-accepted remedies available to a trial court in
the event a Batson violation occurs. I believe that these
remedies are worth mentioning.
First, if a trial court
determines that a party exercised a peremptory challenge on
the basis of race in violation of Batson, the trial court
can disallow the challenge and seat the challenged
veniremember. Batson, supra at 99 n 24 (concluding that a
trial court should “disallow the discriminatory challenges
and resume selection with the improperly challenged jurors
reinstated on the venire”).
See also State v Grim, 854
(continued…)
18
Here, the trial court’s “same number if not more” or,
stated differently, “no harm, no foul” approach does not
comport with the principles of Batson and its progeny.
Not
only does such an approach suggest that jurors are racially
fungible,
but
it
ignores
the
fact
that
veniremembers
Johnson and Jones were excluded from the judicial process
on the basis of race.
to
the
one
advanced
When faced with an argument similar
by
the
trial
court
to
support
its
approach, the Sixth Circuit Court of Appeals rejected this
(…continued)
SW2d 403, 416 (Mo, 1993) (“[T]he proper remedy for
discriminatory use of peremptory strikes is to quash the
strikes and permit those members of the venire stricken for
discriminatory reasons to sit on the jury if they otherwise
would.”).
Second,
if
a
trial
court
determines
that
the
discrimination in the selection process is more pervasive,
the court may discharge the entire venire and start the
process anew.
Batson, supra at 99 n 24 (concluding that
the trial court may “discharge the venire and select a new
jury from a panel not previously associated with the
case”).
See also State v McCollum, 334 NC 208, 236; 433
SE2d 144 (1993) (“As Batson violations will always occur at
an early stage in the trial before any evidence has been
introduced, the simpler, and we think clearly fairer,
approach is to begin the jury selection anew with a new
panel of prospective jurors who cannot have been affected
by any prior Batson violation.”)
In sum, a trial court is under an affirmative duty to
ensure that the constitutional mandates of Batson are
respected. While there may be other options available to a
trial court to remedy a Batson violation, permitting
purposeful discrimination to stand without crafting a
remedy is not an acceptable option.
19
argument
and
reasoned
discrimination
subsequent
has
selection
that
occurred,
of
an
“[w]here
to
purposeful
conclude
that
juror
African-American
the
can
somehow purge the taint of a prosecutor’s impermissible use
of a peremptory strike to exclude a veniremember on the
basis of race confounds the central teachings of Batson.”
Lancaster v Adams, 324 F3d 423, 434 (CA 6, 2003).
United
States
v
Harris,
192
F3d
580,
587
(CA
See also
6,
1999)
(rejecting the proposition that the failure to exclude one
member of a protected class is sufficient to insulate the
unlawful exclusion of others.); United States v Battle, 836
F2d
1084,
1086
(CA
8,
1987)
(“We
emphasize
that
under
Batson, the striking of a single black juror for racial
reasons violates the equal protection clause, even though
other black jurors are seated, and even when there are
valid reasons for the striking of some black jurors.”);
United States v David, 803 F2d 1567, 1571 (CA 11, 1986).
While a defendant does not have a right to a jury composed
in whole or in part of persons of the defendant’s own race,
the defendant “does have the right to be tried by a jury
whose members are selected pursuant to non-discriminatory
criteria.”
Batson, supra at 85-86.
In light of these
principles, as well as more recent United States Supreme
Court precedent, I believe that the trial court’s rationale
20
was fundamentally defective.
See, e.g., Powers, supra at
410-414.
Granted, the trial court was placed in a precarious
situation because Johnson and Jones could not be located.
Accordingly, the trial court could not have disallowed the
prosecutor’s challenges and resumed selection with Johnson
and Jones reinstated on the venire.10
24.
Batson, supra at 99 n
However, the trial court could have discharged the
venire and selected a new jury from a panel not associated
with
the
case.
Id.;
see
also
ante
at
30.
Although
inaction is not an option, the trial court failed to take
any remedial action after finding a Batson violation.
It
was only by chance that the “same number if not more” of
African-Americans
But
Batson
is
ultimately
principally
served
on
concerned
defendants’
with
why
jury.
certain
veniremembers are excluded and requires remedial action if
those veniremembers are excused on the basis of race.
I
reject the trial court’s rationale that the discrimination
10
In this regard, the trial court observed that the
veniremembers could not be located because they left the
building.
The record is unclear exactly what steps the
trial court took to find Johnson and Jones.
The trial
court possibly could have done more to locate these
veniremembers.
And if these veniremembers were located,
the trial court would have then had the option to reinstate
Johnson and Jones on the venire.
21
against veniremembers Johnson and Jones was somehow “cured”
by the eventual makeup of the jury.
Therefore, I would
hold that the trial court erred when it did not take any
action to remedy the Batson violation.
Because
the
trial
court
concluded
that
Johnson
and
Jones were purposefully excluded from the jury pool on the
basis
of
race
and
the
trial
court
erred
by
failing
to
remedy these Batson violations, I would conclude that this
error is subject to automatic reversal.
This Court has yet
to formally decide the issue whether a Batson violation is
structural
error
Structural
that
errors
“are
defies
harmless
intrinsically
error
harmful,
analysis.
without
regard to their effect on the outcome, so as to require
automatic reversal.”
NW2d 551 (2000).
People v Duncan, 462 Mich 47, 51; 610
In other words, structural errors affect
the entire conduct of the trial from beginning to end, and
these errors alter the framework within which the trial
proceeds.
Arizona v Fulminante, 499 US 279, 309-310; 111 S
Ct 1246; 113 L Ed 2d 302 (1991).11
11
In this regard, it must
In Fulminante, supra at 310, the Court noted that
some examples of structural defects involve the right to
self-representation at trial, McKaskle v Wiggins, 465 US
168, 177 n 8; 104 S Ct 944; 79 L Ed 2d 122 (1984), and the
right to a public trial, Waller v Georgia, 467 US 39, 49 n
9; 104 S Ct 2210; 81 L Ed 2d 31 (1984).
Notably, the
(continued…)
22
be observed that the United States Supreme Court has never
suggested that the discriminatory exclusion of prospective
jurors is subject to harmless error review.
Indeed, my
review of the Court’s precedent, as well as the decisions
from the federal Courts of Appeals, compels the conclusion
that the purposeful exclusion of a prospective juror on the
basis of race is considered structural error and, thus, it
defies harmless error analysis.
The
United
States
Supreme
Court
has
stressed
that
unlawful exclusions in violation of Batson taint the entire
conduct
of
the
trial.
Indeed,
“the
effects
of
racial
discrimination during voir dire ‘may persist through the
whole
course
of
the
trial
proceedings.’”
Tankleff
v
Senkowski, 135 F3d 235, 248 (CA 2, 1998), quoting Powers,
(…continued)
United States Supreme Court also observed that the unlawful
exclusion of members of the defendant’s race from a grand
jury was a structural defect not subject to harmless error
analysis.
Fulminante, supra at 310, citing Vasquez v
Hillery, 474 US 254; 106 S Ct 617; 88 L Ed 2d 598 (1986).
More recently, in Neder v United States, 527 US 1, 8; 119 S
Ct 1827; 144 L Ed 2d 35 (1999), the Court again cited
Vasquez for the proposition that racial discrimination in
the selection of grand jurors is structural error subject
to automatic reversal.
While the precedential value of
this proposition has been questioned because Justice White
did not join this portion of the Vasquez opinion, the
United States Supreme Court itself has cited Vasquez with
approval on this proposition.
23
supra at 412.
To this end, the United States Supreme Court
has stated:
A prosecutor’s wrongful exclusion of a juror
by a race-based peremptory challenge is a
constitutional violation committed in open court
at the outset of the proceedings.
The overt
wrong, often apparent to the entire jury panel,
casts doubt over the obligation of the parties,
the jury, and indeed the court to adhere to the
law throughout the trial of the cause. [Powers,
supra at 412.]
On the basis of this language, the Eight Circuit Court of
Appeals has concluded that Powers “is a strong indication
that the Supreme Court would hold that a constitutional
error involving race-based exclusion of jurors infects the
entire
trial
error.”
Stated
process
itself
and
is
hence
a
structural
Ford v Norris, 67 F3d 162, 171 (CA 8, 1995).
differently,
unlawful
exclusions
on
the
basis
of
race are intrinsically harmful.
Further,
the
United
impact
these
States
Supreme
exclusions
Court
have
on
has
the
also
stressed
the
whole
system.
For example, the Court has observed that “[t]he
exclusion of even one juror for impermissible reasons harms
that juror and undermines public confidence in the fairness
of the system.”
J E B v Alabama, 511 US 127, 142 n 13; 114
S Ct 1419; 128 L Ed 2d 89 (1994).
Accordingly, the United
States Supreme Court has consistently reversed convictions
without first determining whether the unlawful exclusion of
24
potential jurors affected the trial’s outcome.
Powers,
supra
at
416.
The
Court
has
See, e.g.,
also
required
automatic reversal where unlawful discrimination was shown
in the selection of grand jurors. Vasquez, supra at 263264; Rose v Mitchell, 443 US 545, 556; 99 S Ct 2993; 61 L
Ed 2d 739 (1979).
Because the Court emphasizes the impact
these exclusions have on the judicial system and regularly
subjects such error to automatic reversal, I believe that
the
Court
would
hold
that
a
race-based
exclusion
of
a
prospective juror is structural error.
The majority of federal Courts of Appeals that have
examined this issue generally have reached the same result
and
have
concluded
that
race-based
exclusions
are
structural error not subject to harmless error analysis.
See, e.g., Tankleff, supra at 248; Rosa v Peters, 36 F3d
625, 635 n 17 (CA 7, 1994); Davis v Secretary for Dep’t of
Corrections, 341 F3d 1310, 1316-1317 (CA 11, 2003); United
States v Angel, 355 F3d 462, 470-471 (CA 6, 2004); Williams
v Woodford, 396 F3d 1059, 1069 (CA 9, 2005).
those
jurisdictions
and
likewise
conclude
I would join
that
the
purposeful exclusion of a prospective juror on the basis of
race is structural error.
has
made
it
clear
that
The United States Supreme Court
the
purposeful
exclusion
of
a
veniremember on the basis of race defies “harmless error”
25
analysis and merits automatic reversal.
Johnson v United
States, 520 US 461, 468-469; 117 S Ct 1544; 137 L Ed 2d 718
(1997); J E B, supra at 142 n 13.
Therefore, until the
United States Supreme Court holds otherwise, if a reviewing
court determines that a prospective juror was excluded from
the jury pool on the basis of race, this is structural
error subject to automatic reversal.
Accordingly, because
the trial court found that Batson had been violated but
erred in not remedying the discrimination, defendant Knight
and codefendant Rice are entitled to new trials.
III. Conclusion
A fair reading of the voir dire transcripts indicates
the trial court found that veniremembers Johnson and Jones
were excluded on the basis of race in violation of Batson
and
its
progeny.
I
would
hold
that
the
trial
court
correctly determined that the principles of Batson had been
violated.
The prosecutor’s proffered explanations for the
exclusions were race-neutral as a matter of law, and the
trial court did not clearly err when it rejected these
explanations
and
determined
purposeful discrimination.
that
defendants
had
proved
However, I would hold that the
purposeful exclusion of veniremembers Johnson and Jones on
the basis of race was not cured by the eventual makeup of
the jury and, thus, the trial court erred by continuing the
26
proceedings without remedying the Batson violations.
Thus,
I would reverse the judgments of the Court of Appeals and
remand these cases for new trials.
Michael F. Cavanagh
Clifford W. Taylor
Marilyn Kelly
27
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
