Mich. Justices Say Peremptory Strike Errors Warrant New Trial

By Carolyn Muyskens | July 17, 2023, 7:36 PM EDT ·

A divided Michigan Supreme Court held for the first time that erroneous denial of a criminal defendant's peremptory strikes during jury selection is a flaw serious enough to automatically require a new trial.

The 4-3 majority said Friday that a defendant whose right to exercise peremptory challenges against prospective jurors is wrongly denied doesn't have to prove that the denial changed the outcome of the trial to undo a conviction on appeal. As long as the defendant preserved the error and the trial court did nothing to fix it, the defendant is entitled to automatic reversal of the jury verdict, the justices said.

The majority opinion, written by Justice Richard Bernstein, rejected the harmless-error standard for appellate review of denials of peremptory strikes, saying to require defendants to establish how the trial outcome would have been different with a different jury panel would be "an act of pure speculation" and "an exercise in futility."

The application of the harmless-error standard to peremptory strike issues "would effectively erase the ability of criminal defendants to obtain relief on appeal for erroneous denials of a challenge to jurors they found unsuitable, contrary to the right to challenge such jurors provided by the Michigan Legislature and clarified through the Michigan Court Rules. Leaving defendants without a remedy in this scenario would be a miscarriage of justice," Justice Bernstein wrote in the opinion, which was joined by Justices Megan K. Cavanagh, Elizabeth M. Welch and Kyra H. Bolden.

The high court granted a new trial to Robert Yarbrough Jr., who was convicted of rape, kidnapping and assault following a 2018 jury trial in Wayne County Circuit Court.

During voir dire ahead of Yarbrough's trial, the trial judge restricted the parties' use of peremptory challenges to newly seated prospective jurors, meaning they could not "backstrike" a seated juror that they had refrained from challenging earlier in the process.

The trial judge's policy ran contrary to Michigan's criminal procedure statute, which guarantees the right to peremptory strikes, and the guidance of the Michigan Court Rules, which make clear that right includes the right to "backstrike" jurors who are seated but haven't yet been sworn in, according to the majority opinion.  

Michael Mittlestat of the State Appellate Defender Office, who represented Yarbrough on appeal, told Law360 the decision represents an important strengthening of criminal defendants' right to an impartial jury.  

"It's a recognition that the peremptory strike is a very important tool in trying to select a jury that is as free as possible from implicit bias," Mittlestat said.

The majority said the trial judge's restrictive policy "necessarily limited defendant's ability to strategically consider the final composition of the jury" and deprived Yarbrough of the ability to strike a juror after seeing how he or she reacted to the questioning of other prospective jurors.

It's also a significant decision because the high court in Michigan determined that a non-constitutional error was a structural error, the category of error that requires automatic reversal, Mittlestat said.

Dissenting from the majority, Justice Brian Zahra said it was "seriously misguided" of the majority to find a wrongful denial of a peremptory challenge to be a structural error, because it is not an error "of constitutional magnitude."  

"The crucial point that the majority ignores is that automatic reversal is an extreme remedy that has been reserved for structural errors," which have traditionally been associated with only certain key violations of fundamental constitutional rights, Justice Zahra wrote in his dissent, joined by Chief Justice Elizabeth Clement and Justice David F. Viviano.

Jon Wojtala, chief of appeals for the Wayne County Prosecutor's Office, said his office was disappointed with the decision and echoed Justice Zahra's objections. 

The majority "elevates a purported non-constitutional error to the same level of those few violations of fundamental constitutional rights deemed so egregious as to warrant automatic reversal," Wojtala said in a statement to Law360.

Justice Zahra also cast doubt on the importance of the right to peremptory challenges, noting that Arizona has eliminated peremptory challenges in civil and criminal cases, which he said "demonstrates how certain courts have increasingly retreated from viewing peremptory challenges as a significant right."

The dissent said the denial of a peremptory challenge should be subject to harmless-error review, under which Yarbrough would have to show how the denial affected the outcome of his trial.

"Federal courts, as well as an increasing number of states, likely a majority, reject automatic reversal as a remedy for error relating to peremptory challenges and agree that the better rule is that no substantial right is impaired so long as the jury that actually sits is impartial," Justice Zahra wrote.

The majority and dissent disagreed over whether the trial judge violated only a court rule regarding peremptory strikes or whether he also violated the statute regarding peremptory strikes.

While Justice Zahra argued the court rule expanded on the statute by extending the right to peremptory strikes to include backstrikes, the majority said the statute "arguably mandates" backstrikes because it doesn't limit the right to peremptory challenges to newly seated jurors.

The government is represented by Deborah K. Blair of the Wayne County Prosecutor's Office.

Robert Yarbrough Jr. is represented by Michael Mittlestat and Steven Helton of the State Appellate Defender Office.

The case is People v. Robert Yarbrough Jr., case number 161513, in the Michigan Supreme Court.

--Editing by Linda Voorhis. 

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