If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

March 3, 2022

V No. 354393

Washtenaw Circuit Court

NAZIR J-S ABED, LC No. 19-000878-FH

Defendant-Appellant.

Before: STEPHENS, P.J., and SAWYER and SERVITTO, JJ.

STEPHENS, P.J. (concurring).

I write to concur with the conclusion reached in the majority opinion in this case but to 

depart from some of its analysis. Unlike the majority, I do find that counsel’s failure to request 

the insertion of the word religion in jury instruction was error. However, because I do not feel 

that outcome of this case would have been different even with the instruction, I too, would affirm 

the conviction.

Jury impartiality is a core tenet of the American legal system. In People v De Haven, 321, 

Mich 327, 334, 32 NW2d 468 (1948), quoting, in Durham v State, 182 Tenn 577, 584, 188 SW2d 

555 (1945), our Supreme Court recognized:

The “impartial jury” guaranteed by constitutional provisions is one which is of 

impartial frame of mind at the beginning of trial, is influenced only by legal and 

competent evidence produced during trial, and bases its verdict upon evidence 

connecting defendant with the commission of the crime charged . . . . [Quotation 

marks omitted.]

While social science tells us that adults begin to form opinions well before the close of 

evidence, argument and court instruction, our system repeatedly admonishes the jury to withhold 

judgment until all of the evidence has been received, arguments have been heard and instruction 

on the law given. See Simon, On Juror Decision Making: An Empathic Inquiry, 15 Ann Rev L & 

Soc Sci 415 (2019). Perhaps in acknowledgement of the fact that jurors do begin making

judgments well before closing instructions, our system provides preliminary instructions 
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immediately after a jury is sworn. There is a trend to encourage that significant substantive 

instruction prior to the opening statements of the parties. Instructions on impartiality are frequently 

given in both preliminary instructions and final instructions. We instruct jurors to put aside biases 

even though most of the time jurors have affirmatively stated that they have none. “Bias or 

prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to 

always recognize its existence, and it might exist in the mind of one who was quite positive that 

he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by 

anything but the evidence.” Crawford v United States, 212 US 183, 196; 29 S Ct 260; 53 L Ed 

465 (1909). See also Irvin v Dowd, 366 US 717, 728; 81 S Ct 1639; 6 L Ed 2d 751 (1961) (“No 

doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but 

psychological impact requiring such a declaration before one’s fellows is often its father. Where 

so many, so many times, admitted prejudice, such a statement of impartiality can be given little 

weight.”). There is little guidance in our jurisprudence as to when special instruction should be 

given concerning bias. Instead, there is broad discretion bestowed on our trial judges to give such 

instruction if it is requested. People v Tyburski, 445 Mich 606, 619; 518 NW2d 441 (1994). In 

this instance, it was not requested and I concur with my colleagues that had it been requested it 

would not have been error for the trial judge to grant the request. However, I believe that counsel’s 

failure to request such an instruction was error.

The majority concludes that religion was not a significant issue in this case and thus it was 

not error to fail to request an instruction in that regard. The majority noted the bases for this 

conclusion: no question was asked of the defendant about his religion, and that the only references 

to religion were made by the defendant and his brother. However, my review of the record 

provided several other direct and inferential references to religion. As noted in the majority, a 

juror specifically noted (in the presence of at least eight of the subsequently empaneled jurors) that 

he was unable to be impartial due to his perception of persons who are of the Muslim faith. That 

juror was excused and I only reference the excused juror to explain the context in which the 

inferential references to faith practice were likely to be received. The first inferential reference 

was visual, the complainant appeared in her hijab. It is common knowledge that certain observant 

Muslim women wear this head covering and also, dress in a manner that exposes very little skin 

other than the face. The prosecutor, also, referenced the hijab in the description of one incident 

when a photograph, ascribed to the defendant, was taken surreptitiously capturing the complainant. 

During the prosecution’s opening statement, it noted that the complainant “wears a religious head 

scarf” as “part of her religion and culture,” and stated it would “have to show a picture that could 

be humiliating” to the complainant. Later in examining the complainant the prosecutor queried 

her about the exhibit asking her if she had permission to present it to the jury. In the exchange 

concerning the exhibit, the complainant noted that she was “uncovered and not dressed”. She 

noted that she did not “show skin”. In addition to those references, the defendant explicitly 

testified that while he was legally divorced from the complainant but that no religious divorce had 

been granted. Finally, while acknowledging that not all persons whose first language is Arabic 

are Muslims, I note that a translator was present during the entire trial and there was extensive 

discussion with two prospective jurors about the language issues and the defendant being a recent 

immigrant during voir dire. The prosecutor even disclosed her immigration status and absence of 

language barriers during that discussion. There is a common correlation of Arabic as a first 

language and Islam as a faith practice. In sum, the combination of the excused juror’s colloquy, 

the presence of and testimony concerning the hijab, testimony concerning Ramadan and the 
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distinction between a civil and religious divorce, should have led counsel to request an instruction 

concerning putting aside any consideration of religion. This was not a circumstance where there 

was a single stray remark that counsel strategically decided to decline to request a special 

instruction to avoid emphasis. 

The majority rightly notes that even if counsel had requested the instruction that the 

outcome would not have been affected. The many instances where the defendant admitted actions 

in violation of the PPO, in combination with testimony from other witnesses, and photographic 

and testimonial evidence from the complainant, would likely have resulted in the very conviction 

challenged in this appeal. 

Affirmed.

/s/ Cynthia Diane Stephens