People of Michigan v. Jacques Jean Kabongo ( 2020 )

Order Michigan Supreme Court
Lansing, Michigan
March 18, 2020 Bridget M. McCormack,
Chief Justice
159346 & (56) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra
Plaintiff-Appellee, Richard H. Bernstein
Elizabeth T. Clement
v SC: 159346 Megan K. Cavanagh,
Justices
COA: 338733
Wayne CC: 16-010745-FH
JACQUES JEAN KABONGO,
Defendant-Appellant.
_____________________________________/
On order of the Court, the motion for miscellaneous relief is GRANTED. The
application for leave to appeal the December 27, 2018 judgment of the Court of Appeals
is considered, and it is GRANTED, limited to the issues: (1) whether the prosecution’s
exercise of a peremptory challenge against prospective juror no. 2 violated Batson v
Kentucky, 476 U.S. 79 (1986); (2) whether the trial court erroneously precluded the
defendant from exercising a peremptory challenge against prospective juror no. 5; (3) if
so, whether such an error should be subject to automatic reversal or harmless error
review, Rivera v Illinois, 556 U.S. 148, 162 (2009) (holding that a trial court’s erroneous
denial of a defendant’s peremptory challenge, standing alone, is not a structural error
under the federal constitution requiring automatic reversal, but that “[s]tates are free to
decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory
challenge is reversible error per se”) and compare, e.g., People v Bell, 473 Mich. 275,
292-295 (2005) (stating in arguable dictum that harmless error review applies to such
errors) with Hardison v State, 94 So 3d 1092, 1101 & n 37 (Miss, 2012) (plurality
opinion) (citing “[a]t least five states” that have adopted an automatic reversal rule as a
matter of state law and following those states); and (4) if so, whether reversal is
warranted in this case.
The time allowed for oral argument shall be 20 minutes for each side. MCR
7.314(B)(1). The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons
or groups interested in the determination of the issues presented in this case may move
the Court for permission to file briefs amicus curiae.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 18, 2020
t0311
Clerk