¶27 (dissenting) — Our democracy is based on respect for the rule of law. When we are unable to resolve our disputes amicably by ourselves, we go to court and accept the judgment of our peers even when we do not like the outcome. This system works only if we all believe it is fair. If people are excluded from jury service because of color or creed, we risk eroding faith in the justice of our democracy.
¶28 Fortunately, the equal protection clause of the federal constitution prohibits all racial discrimination during the jury selection process. Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) U.S. Const, amend. XIV. Batson was a good first step toward implementing the promise of the equal protection clause injury selection, but it left the job partly done. Batson established a three-part test to determine if the State improperly used a peremptory challenge in a criminal case to exclude a potential juror based on *189race, real or perceived. First, the defendant must make a prima facie case of purposeful discrimination by raising an inference that a peremptory challenge was used to exclude a potential juror because of his or her race. State v. Rhone, 168 Wn.2d 645, 651, 229 P.3d 752 (2010) (citing Batson, 476 U.S. at 96). This first element is the one at issue for Meredith. Second, once a prima facie case is made, the prosecutor is asked if there is a race-neutral explanation for wanting to remove the person from the pool. Id. Finally, considering the challenge, the race-neutral response, and the record as a whole, the court must determine if the defendant has established purposeful discrimination by a preponderance of the evidence. Id. If the court has followed this procedure, the judge’s determination is given great deference on appeal and the ruling will stand unless it is clearly erroneous. Id. (quoting State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008)).3
¶29 In Rhone, five justices of this court established a more stringent rule to police against racial prejudice injury selection. In Rhone, those five justices established that “going forward,” “a prima facie case of discrimination is established under Batson when the sole remaining venire member of the defendant’s constitutionally cognizable racial group or the last remaining minority member of the venire is peremptorily challenged.” Rhone, 168 Wn.2d at 658 (Madsen, C.J., concurring), 661 (Alexander, J., dissent*190ing, joined by Sanders, Chambers, and Fairhurst, JJ.). Rhone applies to all cases not final the day it was announced. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 330, 823 P.2d 492 (1992). Meredith’s appeal was not final the day Rhone was announced. He is entitled to its benefit.
¶30 Meredith is not a sympathetic litigant. He was convicted by a jury of rape of a child in the second degree and communication with a minor for immoral purposes. Meredith is white. He objected to the dismissal of a juror who was not white: the only African American person on the jury panel. Meredith argued that there was nothing in the jury questionnaires or the prospective juror’s responses that indicated the juror would not be a fine juror. In response, the State asserted that Meredith had not met his burden of proof under Batson. The trial judge agreed in a cursory ruling. The judge did not require the State to offer a race-neutral reason for dismissing the last African American juror.
¶31 Meredith was convicted by that jury. Before he was sentenced, he ran away and hid for a dozen years, avoiding punishment for his crimes. He was eventually arrested and sentenced in 2008. If Meredith had not been in hiding for over a decade, he would have been sentenced and likely would have served a long prison term. He would probably not have had a successful challenge to the process of jury selection in his case under the Batson rule as applied in our state at the time. See, e.g., Hicks, 163 Wn.2d at 486. While he was gone, however, the law changed in his favor.
¶32 I understand why some hesitate to give Meredith the benefit of this change given his crimes and his flight from justice. But we must not decide cases based on sympathy or lack of it. The law protects even those like Meredith.4 In Rhone, five justices of this court established *191that “going forward,” “a prima facie case of discrimination is established under Batson when the sole remaining venire member of the defendant’s constitutionally cognizable racial group or the last remaining minority member of the venire is peremptorily challenged.” Rhone, 168 Wn.2d at 658 (Madsen, C.J., concurring), 661 (Alexander, J., dissenting, joined by Sanders, Chambers, and Fairhurst, JJ.). Rhone applies to all cases not final the day it was announced. St. Pierre, 118 Wn.2d at 330. Under Rhone, Meredith made a timely objection and established a prima facie case of discrimination in the selection of the jury in his case. The State was thus obligated to offer a race-neutral reason for dismissing the last African American juror. It did not. This is reversible error. Therefore, I would reverse his conviction.
¶33 I respectfully dissent.
¶34 (dissenting) — I dissent. I expressed my view of why Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), does not work and must be abandoned in State v. Saintcalle, 178 Wn.2d 34, 117, 309 P.3d 326 (2013) (Chambers, J., dissenting). I strongly believe that Justice Alexander was right in State v. Rhone, 168 Wn.2d 645, 229 P.3d 752 (2010). As I said in Saintcalle, Batson had a limited purpose: to reduce purposeful racial discrimination in the jury selection process. Saintcalle, 178 Wn.2d 118 (Chambers, J. Pro Tem., dissenting). But “Batson was doomed from the beginning *192because it requires one elected person to find that another elected person (or one representing an elected person) acted with a discriminatory purpose. . . . Further, Batson, by design, does nothing to police jury selection against unconscious racism or wider discriminatory impacts.” Id. Following the rule set forth in Justice Alexander’s opinion in Rhone, I would hold that a prima facie case of discrimination is established when the sole remaining venire member of a constitutionally cognizable racial group is peremptorily challenged. Rhone, 168 Wn.2d at 661 (Alexander, J., dissenting).
The Batson rule has been extended to defendants as well as prosecutors. Georgia v McCollum, 505 U.S. 42, 44, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). It has also been extended to civil cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991). The rule was further extended to cover gender discrimination. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 145, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). The rule in Batson, however, is narrower than the equal protection clause. If construed penuriously, the Batson rule addresses only overt discrimination and does little, if anything, to combat implicit bias.
In another case before this court, State v. Saintcalle, the limitations of the Batson rule and our jury selection process are apparent. 178 Wn.2d 34, 309 P.3d 326 (2013). The bright spot is that a majority of this court recognizes that bias is a factor in jury selection in Washington and that the Batson rule is largely ineffective in preventing it. Perhaps this recognition will lead to real changes in the jury selection process.
In Saintcalle, we declined to adopt a robust reading oí Batson or to address in any way the problem of unchecked implicit bias in jury selection. If we limit Batson, but are serious about addressing insidious discrimination in jury selection, we should consider (1) eliminating peremptory challenges altogether, since *191we are not as good at discerning “good” jurors as we think we are, (2) reducing the number of peremptory challenges available to limit the mischief of unfettered exercise of challenges while preserving some discretion to litigants who, despite the evidence, cling to the belief that they know which jurors to eliminate, or (3) adopting a jury selection process similar to that used in federal court in the Western District of Washington, where voir dire is largely judge-driven, reducing the ability of litigants to manufacture seemingly race-neutral reasons to justify challenging certain jurors based on unfounded stereotypes.