Lead Opinion
In these consolidated appeals, we are called upon to clarify our Batson v Kentucky,
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 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,
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 of 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.
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,
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 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.”
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 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 recognizethat 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 ]
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 revers e-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 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.
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.
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,
II. LEGAL BACKGROUND
A. THE BATSON PROCEDURE
Under the Equal Protection Clause of the Fourteenth Amendment,
First, thé 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
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 race-neutral 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,
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.
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,
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 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,
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,
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
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 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 createf] 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 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,
Therefore, although we afford deference to the trial court’s ultimate determinationof a 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,
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,
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,
It is important to bear in mind that it is not until Batson’s third step that the persuasiveness of the proffered explanation
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,
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
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 Bat-son 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 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,
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 race-neutral 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 response as to potential juror Jones and Johnson,” but because they already left, she did not rule on whether the prosecutor engaged in purposeful discrimination. Instead, she instructed the attorneys to be careful “from this point on” with their selections. If the judge had found a Batson error, however, her only remedial option would have been to dismiss the entire venire and select the jury from a new panel because she had already dismissed the stricken veniremembers.
III. ANALYSIS
The record reflects that the trial judge never explicitly found that the prosecutor violated Batson. 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.
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 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 race-neutral 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 triál 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.
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
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.
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 prosecutor did not engage in purposeful discrimination, we affirm defendants’ convictions.
Notes
Veniremember Jones, believing that she was dismissed, left the courthouse before the trial judge ruled on defense counsel’s Batson objection.
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.
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 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.
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.
People v Knight,
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).
US Const, Am Xiy § 1 provides in relevant part: “No State shall... deny to any person within its jurisdiction the equal protection of the laws.”
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,
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_;
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 .]
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.”).
See also Johnson, supra,_US_;
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.’ ”
See State v Wilson,
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,
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 collapsefd] 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.
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.
(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.]
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.
See also United States v Ovalle,
Concurrence Opinion
(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,
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.
I do not join part 11(C) of the majority opinion because I do not believe that these cases are the proper vehicle to explore when a Batson v Kentucky,
Concurrence Opinion
(concurring in part and dissenting in part). I agree with the legal principles announced in parts 11(A) and 11(B) of the majority’s opinion.
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 African-American veniremembers, one male and two females. After the prosecutor exercised her third challenge on day three, and after the court recessed for lunch, defense counsel raised a Batson objection.
Defense counsel argued that the prosecutor was excluding African-American veniremembers on the basis of race, specifically African-American males. The prosecutor responded by arguing that a pattern
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. 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 veiy 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,—
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.]
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 first-degree 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 349. On the basis of its reading of the voir dire transcripts, the majority concludes that the trial court 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.
[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....
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.
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.
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.
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,
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 Bat-son’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’ 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 thé 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,_US_;
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 been “cured” because the “same number if not more” of African-American jurors sat on defendants’ jury. I conclude that the trial court erred in proceeding in this fashion. Such an approach not only ignores the structural nature of a Batson violation, but directly conflicts with the propositions on which Batson and its progeny are based.
“Jury 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,
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.
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;
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,
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
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,
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,
in. 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 proceedings without remedying the
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.
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 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,
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.
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.
I disagree, however, with the majority’s reliance on a proposed court rule that may be adopted sometime in the future. See ante at 349 n 17 and 350. 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.
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_;
Appellate review oí Batson’s first step is not implicated in these cases. See Hernandez v New York,
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, _US_;
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,
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;
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.
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.
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,