The opinion
NOBLE, J.,
DISSENTING:
Respectfully, I believe the majority mis-perceives the argument in this case based on Shane v. Commonwealth, 243 S.W.8d 336 (Ky.2007). Appellee Lawson is not claiming that Shane requires reversal of his conviction on this collateral claim. Instead, he claims that his attorney’s negligence requires reversal through this collateral attack. Lawson claims that his trial counsel was ineffective because he did not object, and thus preserve the error, when the trial court failed to give him the eleven peremptory strikes to which he was entitled at trial. Instead, he received only nine. This court held in Shane that peremptory strikes were the grant of a substantial right under Kentucky law, and that error in allowing full and free use of peremptory strikes required reversal of the defendant’s conviction.
Negligent representation by trial counsel that caused the loss of two peremptory strikes deprived Lawson of that substantial right. If a right is substantial, then its loss cannot be anything but prejudicial. It cannot be reasonably argued that this loss of peremptory strikes was trial strategy. Thus the attorney’s failure did cause prejudice to Lawson as prejudice is defined in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).
It is not debatable that counsel was ineffective in failing to obtain Lawson’s full number of peremptory strikes. Thus, the first prong of the Strickland test is met. Under the second prong, demonstrable prejudice, Lawson was not required to show how his use of those two peremptory strikes would have affected the outcome of *849 the trial, as the majority states. Instead, because of what a peremptory strike is under Kentucky law — a substantial right— he had only to show that he was deprived of that right. That showing alone establishes prejudice. Shane, 243 S.W.3d at 339. This is no different than if he were denied the right to cross examine a witness, or to offer proof if he wished. The fundamental nature of these rights is such that no trial can be fair in their absence. Prejudice is demonstrated when the right is denied by the attorney’s negligence. Thus, Lawson has shown all that was necessary to prove his ineffective assistance of counsel claim. It is also true that the actual denial of the peremptory strikes would require reversal on a direct appeal, but here the ground for reversal is that the attorney negligently lost Lawson two peremptory strikes.
Consequently, I would affirm the Court of Appeals.
KELLER, J., joins.