Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

PEOPLE OF THE STATE OF MICHIGAN, 

FILED JULY 21, 2005 

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. Specifically, this Court must decide 

whether the trial 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 in the exercise of three 

peremptory challenges. 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. Indeed, 

the trial judge’s only clear statement 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 of defendant Knight’s former girlfriend. 

Codefendant Rice was also charged with one count of 

2
 
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. After his initial efforts failed, 

according to the prosecutor, defendant 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 the third day of jury selection, defense 

counsel initially objected to the prosecutor’s use of 

peremptory challenges, claiming that the prosecutor was 

attempting to exclude African-American 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 misunderstanding of Batson 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. I have noticed this pattern since day one of the 

jury trial. That’s why seventy-five percent of the 

exclusions have been black.” 

3
 
The prosecutor immediately interjected that she had 

excluded three African-American veniremembers and four 

Caucasian veniremembers and offered race-neutral reasons 

for excluding the African-American veniremembers. The 

trial judge stated, “There have been four whites excluded, 

exempted by the prosecution and three blacks. So just 

based on that I don’t see a Batson 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 what we’ve had in three days of jury 

selection.” 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. So I 

don’t see a problem there. 

4
 
 

 

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. After lunch, the 

prosecutor dismissed three African-American women, 

veniremembers Bonner, Johnson, and Jones. Defense counsel 

did not contemporaneously object to the exercise of 

peremptory challenges against veniremembers Bonner and 

Johnson. 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 out that the prosecutor had exercised three 

consecutive challenges against African-American women. 

Without waiting for the trial judge’s ruling 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 challenges regarding 

veniremembers Bonner and Johnson. The prosecutor stated 

that she dismissed veniremember Bonner because Bonner was a 

close relative of two persons convicted of first-degree 

murder. She dismissed veniremember 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.” The trial judge 

rejected the prosecutor’s reasons for dismissing 

veniremember Johnson, but stated that she had not objected 

to Johnson’s dismissal because defense counsel had not 

objected. The trial judge did not accept the prosecutor’s 

reasons for dismissing veniremember Jones: 

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 

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.” We do not think this language reflects 

that the 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 acknowledged the trial judge’s 

comments. She immediately raised a reverse-Batson 

challenge to defense counsel’s exercise 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 the Court, Your Honor,

that sister counsel fails to recognize that there

are at least four white women that are on the 

jury. 

* * * 

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]: I don’t know if she is 

or not. 

[The Prosecutor]: I thought she was held. 

[The Trial Judge]: If she is still here,

I’m going to keep her. 

[Defense counsel]: Thank you. 

[The Deputy]: Miss 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 . . . .” After 

further discussion, the trial judge concluded 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 its discretion in 

rejecting defendant’s Batson challenge. While codefendant 

Rice’s counsel joined in the Batson challenge at trial, 

codefendant Rice did not raise the Batson issue in the 

Court of Appeals. 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 On remand, the Court of Appeals 

again affirmed the convictions, finding no evidence of 

purposeful discrimination.6 We granted leave to appeal and 

further ordered these 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). In Batson, supra at 96-98, the United 

States Supreme Court 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 

race. Id.9 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 gives ‘rise to an inference of discriminatory 

purpose,’” Batson’s first step is satisfied. 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). Rather, 

the issue is whether the proponent’s explanation is 

facially valid as a matter of law. 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. . . . Unless a 

discriminatory intent is inherent in the prosecutor’s 

explanation, the reason offered will be deemed race 

neutral.” 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 of the challenge has proved 

purposeful discrimination. Batson, supra at 98. 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 the blurred category, and courts have labored to 

formulate a generally accepted standard of review for 

Batson cases that applies to all levels of the Batson 

inquiry. 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 found and ruled. See, e.g., 

Mahaffey v Page, 162 F3d 481, 482-483 (CA 7, 1998). This 

is not the preferred route. 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 three steps, and we 

17
 
further urge the courts to clearly articulate their 

findings and conclusions with respect to each step on the 

record. Once it is determined what the trial court has 

found 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. For 

example, the Ninth Circuit Court of Appeals en 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 showing of discrimination has been made. 

Mahaffey, supra at 484. The Seventh Circuit 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 of similar factual settings, rather than 

permitting different trial judges to reach inconsistent 

conclusions about the prima facie case on the same or 

similar facts.” Id. 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. Valdez v People, 966 P2d 587, 

591 (Colo, 1998). The Valdez court noted that the First, 

Eighth, and Ninth circuits adhere to a clear error standard 

when reviewing the prima facie determination under the 

Batson framework. 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. Weighing the aforementioned cases and turning to 

Title VII case law for additional guidance, the Valdez 

court concluded: 

Therefore, although we afford deference to

the 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 

jurors. Id. at 410-414.11 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 differently than other mixed 

questions of law and fact. 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. We believe 

11 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 Supreme Court precedent. See, e.g., Hernandez, 

supra at 359(“In evaluating the race neutrality of an 

attorney’s explanation, a court must determine whether, 

assuming the proffered reasons for the peremptory 

challenges are true, the challenges violate 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. Purkett, supra at 768.12 Accordingly, at 

Batson’s second step, a court is only concerned 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 2417-

2418; 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 to the third step of Batson analysis to 

determine whether the race-neutral and facially 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). Moreover, the trial 

court’s ultimate factual finding is accorded great 

deference. Miller-El I, supra at 340. 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 lies within the 

24
 
 

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. If Batson’s second step is implicated 

(whether the proponent of the peremptory challenge 

articulates a race-neutral explanation as a matter of law), 

we review the proffered explanation de novo. Finally, if 

the third step is at issue (the trial court’s 

determinations whether the race-neutral explanation is a 

pretext and whether the opponent of the challenge has 

proved purposeful discrimination), we review the trial 

court’s ruling for clear error. 

C. Remedies for Batson Violations 

In the present case, defense counsel did not object to 

the dismissal of veniremembers Bonner and Johnson. 

Although he referred to Bonner and Johnson during his 

Batson objection, he only objected to the dismissal of 

veniremember Jones. 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 be allowing purposeful 

discrimination. Therefore, most 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 jurisdictions regarding Batson error 

preservation. Several jurisdictions held that a Batson 

challenge must be made before the jury is sworn, or else 

the issue is waived.14 Additionally, numerous courts take 

the stance that a Batson challenge must also be raised 

before the court dismisses the venire.15 One case held that 

Batson objections were waived once the stricken 

veniremembers left the courthouse, but 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 striking a juror, that he might be 

required to provide race-neutral explanations for the 

strike. United States v Erwin, 793 F2d 656 (CA 5, 1986). 

Furthermore, if a court finds a Batson violation after the 

venire is dismissed, then there must be a new juryselection process and a new venire called. State v 

Cummings, 838 SW2d 4, 6 (Mo App, 1992). If a 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. Because of the 

difficulties in retaining stricken 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 the present case, the prosecutor provided raceneutral explanations for her exclusion of 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 

veniremembers. 

she had already dismissed the stricken 

The record 

III. Analys

reflects that 

is 

the trial judge never 

explicitly found that the prosecutor violated Batson. Nor 

can we infer such a finding on this record. 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 pool, as a matter of 

chance, was largely Caucasian. 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 trial judge’s failure to rigorously follow the 

Batson procedures and, more importantly, to clearly 

articulate her findings and conclusions on 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, when considered in context with her 

subsequent remarks that “we are getting close to 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 motivation was to ensure some modicum of racial 

balance in the jury panel. 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. The trial 

judge was more concerned with achieving a 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. The trial judge was 

preoccupied with this fact. 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. Taylor, supra at 538; Holland, 

supra at 476-480.19 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, 

v 

Plaintiff-Appellee, 

No. 124996 

JEROME L. KNIGHT, 

Defendant-Appellant. 

_______________________________ 

PEOPLE OF THE STATE OF MICHIGAN, 

v 

Plaintiff-Appellee, 

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 69 (1986). During jury selection, the 

prosecutor exercised peremptory challenges to excuse 

prospective jurors Johnson and Bonner. Defense counsel did 

not object. A short time later, after the prosecution 

exercised a 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. In response 

to defense counsel’s assertion, the prosecutor then 

explained her reasons for excusing Jones, as well as 

Johnson and Bonner. Throughout the discussion, the trial 

court stated that “we are getting close to a serious issue 

here.” And after noting that the trial court has to accept 

or 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. That’s all I’m 

saying. I’m making my record too.” 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 violation occurred, I express no opinion 

concerning the standard of review for Batson 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, 

v 

Plaintiff-Appellee, 

No. 124996 

JEROME L. KNIGHT, 

Defendant-Appellant. 

_______________________________ 

PEOPLE OF THE STATE OF MICHIGAN, 

v 

Plaintiff-Appellee, 

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) and II(B) of the majority’s opinion.1 I write 

1

 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. I believe that an evenhanded reading of the 

record 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 on the panel that 

ultimately decided these cases. 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. Of the seven challenges the prosecutor had 

exercised at that point, three were against AfricanAmerican 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 African-Americans. Moreover, the prosecutor 

argued, only one of the excluded African-Americans was 

3
 
male. While continuing to assert that the first step of 

Batson was not satisfied, the prosecutor also explained her 

reasons for excluding the African-Americans. The trial 

court found that Batson had not been violated 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. So I 

don’t see a problem there. 

The trial court then recessed for lunch, and the 

veniremembers returned to the courtroom after the break. 

When jury selection resumed, the prosecutor exercised 

peremptory challenges to exclude veniremembers Johnson, 

Bonner, and Jones. 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 charge and she was “hesitant in her demeanor.” 

Finally, 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. The trial court then noted that veniremember Berg, 

a Caucasian female who was also a professional working 

person, was not challenged and excluded from service. The 

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 Defendant Knight]: Miss 

Johnson, Your Honor. 

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 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 side ended up selecting

this panel for any reason other than I think that

these are the ones who will be the fair and 

impartial persons to hear 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 trial judge’s failure to rigorously follow the 

Batson procedures and, more importantly, to clearly 

articulate her findings and conclusions on the record.” 

Ante at 31. 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 excluded on the basis of race in 

violation of Batson. 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 explanations for the peremptory challenges. 

After considering the proffered explanations, 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 third prong, and concluded that the 

prosecutor’s explanations were a pretext and, thus, 

purposeful discrimination had been 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 court preliminarily concluded that Batson may 

have been violated, but ultimately concluded that no 

violation occurred.4 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 side ended up selecting

this panel for any reason other than I think that

these are the ones who will be the fair and 

impartial persons to hear 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 would conclude that the record fairly 

reveals that the trial court found a Batson 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. I tend to agree with the 

majority and suspect that 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 occurred in 

5

 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
 
v 

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 

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 of his ‘legitimate reasons’ for 

exercising the challenges,” and the explanation must be 

“related to the particular case to be tried.” Batson, 

supra at 98 & n 20, quoting Texas Dep’t of 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. In other 

14
 
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. See Hernandez, supra at 

360. Further, discriminatory intent was not necessarily 

inherent in the prosecutor’s explanations. Id. Thus, I 

believe that the prosecutor’s explanations were raceneutral 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 and Jones had been 

excluded on the basis of race. Resolution of 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.’” Miller-El I, supra at 339 (citation 

omitted). Here, the trial court rejected defendants’ 

Batson challenge that was lodged earlier in the day. After 

the lunch recess, however, the record reveals that the 

trial court became suspicious of the prosecutor’s method of 

exercising peremptory challenges. In light of defendants’ 

15
 
objection to the exclusion of veniremembers Johnson and 

Jones, and after observing the prosecutor’s demeanor and 

listening to the proffered reasons for the peremptory 

challenges, the trial court concluded 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. The trial court then noted that veniremember Berg, 

a Caucasian female who was also a professional working 

person, was not challenged and excluded from service. See, 

e.g., Miller-El II, supra at *21 (“If a 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 African-Americans. While 

16
 
 

 

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 excluding veniremembers 

Johnson and Jones were a pretext. 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
 
 

 

I 

been “cured” because the “same number if not more” of 

African-American jurors sat on defendants’ jury. 

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 service is an exercise of responsible 

citizenship by all members of the community, including 

those who otherwise might not have the opportunity to 

contribute to our civic life.” 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 dignity of persons and the 

integrity of the courts.” Id. 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. When faced with an argument similar 

to the one advanced 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 that “[w]here purposeful 

discrimination has occurred, to conclude that the 

subsequent selection of an African-American juror 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). See also 

United States v Harris, 192 F3d 580, 587 (CA 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 Batson, supra at 99 n 

24. 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 ultimately served on defendants’ jury. 

But Batson is principally concerned with why 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 that defies harmless error analysis. 

Structural errors “are intrinsically harmful, without 

regard to their effect on the outcome, so as to require 

automatic reversal.” People v Duncan, 462 Mich 47, 51; 610 

NW2d 551 (2000). 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 In this regard, it must 

11 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 process itself and is hence a structural 

error.” Ford v Norris, 67 F3d 162, 171 (CA 8, 1995). 

Stated differently, unlawful exclusions on the basis of 

race are intrinsically harmful. 

Further, the United States Supreme Court has also 

stressed the impact these exclusions have on 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. See, e.g., 

Powers, supra at 416. The Court has also required 

automatic reversal where unlawful discrimination was shown 

in the selection of grand jurors. Vasquez, supra at 263-

264; 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). I would join 

those jurisdictions and likewise conclude that the 

purposeful exclusion of a prospective juror on the basis of 

race is structural error. The United States Supreme Court 

has made it clear that 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 that defendants had proved 

purposeful discrimination. 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