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

revision until final publication in the Michigan Appeals Reports.

- 1

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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- Appellee, UNPUBLISHED December 21, 2023

v No. 360600 Saginaw Circuit Court

CURTIS LEE RICHARDSON III, LC No. 17

- 043882

- FC

Defendant

- Appellant.

Before: G LEICHER

, C .J., and J ANSEN and R ICK , JJ.

G LEICHER

, C. J. ( concurring ).

I fully concur with the majority opinion. I write separately to respectfully respond to the dissent, and to suggest that our Supreme Court consider adopting a Court Rule that would assist trial judges weighing Batson objections.

The dissent inaccurately characterizes the majority opinion as having concluded that the dismissal of juror DC was pretextual “because the prosecutor did not ask that juror any questions.” The prosecutor’s failure to make any inquiries of DC was merely one piece of evidence suppo rting pretext. As the majority pointed out, the trial court’s decision to overrule Richardson’s Batson objection was devoid of any factual analysis. Instead, the trial court essentially agreed with the
assessment of an interested and unsworn courtroom wi tness that DC may have been “dozing.” The dissent correctly recites the general rule that a trial court’s credibility assessments are not subject to challenge on appeal. But here the trial court made no credibility judgement; it dodged the issue by accep ting that a prosecution witness was credible. That might be good enough if the prosecutor himself (or anyone else) had actually seen the alleged dozing. But that is not what the record
reflects.

An appellate court’s review of a trial court’s Batson ’s ru ling is complicated not only by the need to review a cold record, but also by the inherent difficulty in applying the three

- step framework when implicit rather than explicit bias may have motivated a strike. Justice David Breyer presciently observed in Miller

- El v Dretke , 545 US 231, 267

– 68; 125 S Ct 2317; 162 L Ed 2d 196 (2005) ( B REYER

, J ., concurring) that “at step three, Batson asks judges to engage in the- 2

-

awkward, sometime hopeless, task of second

- guessing a prosecutor ’ s instinctive judgment

— the
und erlying basis for which may be invisible even to the prosecutor exercising the challenge.” The academic literature cited by Justice Breyer in Miller

- El makes a powerful case that “despite

Batson , the discriminatory use of peremptory challenges remains a p roblem.” Id . at 268.

At least one state has responded to the challenge of “protecting litigants’ rights to equal protection of the laws and jurors’ rights to participate in jury service free from racial discrimination” by adopting a Court Rule creating a new step three inquiry. See State v Jefferson

, 192 Wash 2d 225, 229

- 230 ; 429 P3d 467 (2018) and State v Vandyke , 318 Or App 235, 2 39 n 1 ; 507 P3d 339 (2022) ( A OYAGI

, J ., concurring). See also Wash General R 37

. 1 In my view

, our Supreme Co urt should consider an amendment to the Court Rules that more effectively addresses potential bias in the jury selection process.

/s/ Elizabeth L. Gleicher

1 This rule can be accessed online at the following link:

< https://www.courts.wa.gov/court_rules/pdf/GR/GA_GR_37_00_00.pdf >.