                                                                     Michigan Supreme Court
                                                                           Lansing, Michigan
                                              Chief Justice:	          Justices:



Opinion                                       Clifford W. Taylor 	     Michael F. Cavanagh
                                                                       Elizabeth A. Weaver
                                                                       Marilyn Kelly
                                                                       Maura D. Corrigan
                                                                       Robert P. Young, Jr.
                                                                       Stephen J. Markman




                                                       FILED JULY 21, 2005
 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellee,

 v                                                                    No. 124996

 JEROME L. KNIGHT,

      Defendant-Appellant.
 ______________________________

 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellee,

 v                                                                    No. 125101

 GREGORY M. RICE,

      Defendant-Appellant.
 _______________________________

 BEFORE THE ENTIRE BENCH

 CORRIGAN, J.

      In these consolidated appeals, we are called upon to

 clarify our Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90

 L Ed 2d 69 (1986), jurisprudence and provide guidance to

 our lower courts.        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 race-

neutral 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 race-

neutral 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 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, 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    jury-

selection        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    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



                                        29

response       as    to   potential      juror     Jones    and    Johnson,”      but

because they already left, she did not rule on whether the

prosecutor engaged in purposeful discrimination.                          Instead,

she instructed the attorneys to be careful “from this point

on” with their selections.               If the judge had found a Batson

error, however, her only remedial option would have been to

dismiss the entire venire and select the jury from a new

panel        because      she   had    already       dismissed     the    stricken

veniremembers.

                                  III. Analysis

        The     record      reflects      that     the     trial    judge    never

explicitly found that the prosecutor violated Batson.                             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 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 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,

     Plaintiff-Appellee,

v                                                              No. 124996

JEROME L. KNIGHT,

     Defendant-Appellant.
_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellee,

v                                                              No. 125101

GREGORY M. RICE,

     Defendant-Appellant.
_______________________________

WEAVER, J. (concurring).

     I concur in the majority’s conclusion that, on a fair

reading of the record, the trial court did not find that

prospective jurors were excluded on the basis of race in

violation of Batson v Kentucky, 476 US 79; 106 S Ct 1712;

90   L   Ed   2d    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,

     Plaintiff-Appellee,

v                                                          No. 124996

JEROME L. KNIGHT,

     Defendant-Appellant.
_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellee,

v                                                          No. 125101

GREGORY M. RICE,

     Defendant-Appellant.
_______________________________

CAVANAGH, J. (concurring in part and dissenting in part).

        I agree with the legal principles announced in parts

II(A)    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     African-

American veniremembers, one male and two females.                            After

the prosecutor exercised her third challenge on day three,

and after the court recessed for lunch, defense counsel

raised a Batson objection.

       Defense      counsel      argued        that     the    prosecutor      was

excluding African-American veniremembers on the basis of

race, specifically African-American males.                         The prosecutor

responded by arguing that a pattern of discrimination was

not present, noting that she struck four Caucasians and

only   three     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 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 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

995 F2d 388, 392 (CA 3, 1993).                     Further, I would review for

clear error the trial court’s determinations whether the

race-neutral          explanations          were     a     pretext    and     whether

defendants proved purposeful discrimination, according the

trial       court’s       findings        high     deference.         Miller-El       v

Cockrell, 537 US 322, 340; 123 S Ct 1029; 154 L Ed 2d 931

(2003) (Miller-El I).

        I    agree      with    the       prosecution       that     the    proffered

explanations for the peremptory challenges were facially

valid under the Equal Protection Clause as a matter of law.

The proponent of the peremptory challenge cannot satisfy

his or her burden under Batson’s second step “by merely

denying that he had a discriminatory motive or by merely

affirming his good faith.”                   Purkett v Elem, 514 US 765,

769; 115 S Ct 1769; 131 L Ed 2d 834 (1995).                            Rather, the

proponent of a strike “must give a ‘clear and reasonably

specific’        explanation         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     race-

neutral as a matter of law, and the trial court properly

proceeded to the third step of the Batson inquiry.

       According       high       deference      to   the     trial       court’s

findings, I cannot say under these circumstances that the

trial court clearly erred under Batson’s third step when it

concluded      that    veniremembers        Johnson   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

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, 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

