¶53 (concurring) — Like my colleagues, I am concerned about racial discrimination during jury selection. Here, the issue is whether the prosecutor’s use of a peremptory challenge to dismiss a black member of the jury venire was based on her race and therefore violated equal protection.
*61¶54 The constitutionally based evaluation established in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), is used to make the assessment whether purposeful discrimination occurred. In the first of the Batson three-step analysis, the defendant must make a prima facie showing that a peremptory challenge was made on the basis of the venire member’s race. Then, in accord with the Batson analysis, the State must offer a race-neutral explanation for the use of the peremptory challenge, and finally, the trial judge must make a determination as to whether racial discrimination occurred.
¶55 Batson’s framework continues to apply to identify the constitutional equal protection violations that it was intended to reach, those involving purposeful discrimination. But as the Court advised, state courts have some flexibility to develop procedures to comply with Batson. Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005); see State v. Hicks, 163 Wn.2d 477, 489-90, 181 P.3d 831 (2008). Recently, for example, in State v. Rhone, 168 Wn.2d 645, 229 P.3d 752 (2010), five members of the court agreed that the defendant can establish the prima facie case when the record shows that the prosecution exercised a peremptory challenge against the only remaining member of the venire who is in the same constitutionally cognizable racial group as the defendant. Id. at 661 (Alexander, J., dissenting); id. at 658 (Madsen, C.J., concurring).12 I agreed with the Rhone dissent on this point, but also said that this means of establishing the prima facie case should be applied only in future cases going forward. Id. Thus, since the present case arose before *62Rhone was issued, the alternative approach set out in the dissent in Rhone is not at issue.
¶56 Beyond the constitutional inquiry, which is aimed at purposeful discrimination, there are growing concerns about unconscious and implicit racial biases that could also affect jury selection. Both the lead opinion and some of the concurrences consider such concerns at some length.
¶57 But the constitutional test from Batson is intended to reach purposeful discriminatory exercise of the peremptory challenge “based on either the race of the juror or the racial stereotypes held by the party.” Georgia v. McCollum, 505 U.S. 42, 59, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). We have not been asked to reassess or modify the Batson approach or to address any policy-based nonconstitutional analyses or nonpurposeful discrimination based on race during jury selection.13 Nonetheless, both the lead opinion and Justice González’s concurrence discuss possible approaches to address implicit or unconscious discrimination and Justice González calls for abolishment of peremptory challenges to resolve the problem.
¶58 The peremptory challenge is an important “state-created means to the constitutional end of an impartial jury and a fair trial.” Id. at 57; accord State v. Latham, 100 Wn.2d 59, 70, 667 P.2d 56 (1983) (the peremptory challenge “is an important and substantial right which protects a party’s constitutional right of trial by jury” (citing Smith v. Kent, 11 Wn. App. 439, 523 P.2d 446 (1983))). Eliminating the peremptory challenge would be an enormous change in our system and certainly one the court should not consider lightly and certainly should not implement sua sponte.
*63¶59 In my view, the analysis in this case should be limited to the issues raised by the parties. The case should be decided under Batson’s “purposeful discrimination” constitutional standard and should not be a forum for discussing how to counter “implicit” or “unconscious” discrimination when these questions have not been raised by the parties. The danger inherent in such discussions is the probability that the court will not be fully and completely informed, despite all best efforts, about all aspects of the matter when we have only our own investigation, research, and analysis to consider. The rich tradition of briefing in appellate courts ensures not only that we consider the issues that the parties raise but that we are well informed. The range of resources expands tremendously when, rather than our own research and that provided by the parties, we have in addition input from other interested entities — when a new court rule is proposed, for example.
¶60 Here, when the prosecutor used a peremptory challenge to dismiss jury venire member Ms. Anna Tolson, the only black member of the venire, the defendant objected and established a prima facie case of discrimination. The prima facie case was easily made because the prosecutor singled this juror out, making it abundantly clear that he did so on the ground that because of her race, she would have a different viewpoint from the rest of the venire. The judge appropriately required the prosecutor to explain why the peremptory challenge was exercised and then found that the prosecutor was justified in believing there was a realistic possibility that Ms. Tolson might be lost as a juror before the trial concluded, especially since she had very recently lost someone who was murdered. The judge’s ruling was not an abuse of discretion.
¶61 Finally, I offer a brief comment on the lead opinion’s appended charts totaling the number of questions and words with respect to each prospective juror. We are not a group of qualified statisticians. One does not have to look very far to find a significant mistake made by this court *64when attempting to resolve a question in a case involving statistics. In a prosecution for murder, in which DNA (deoxyribonucleic acid) evidence was an important part of the State’s case, we originally rejected the State’s expert’s testimony that the defendant’s DNA was a 1 in 19.25 billion “match” to the forensic sample. We concluded that this was basically an assertion that the defendant was the only person with this DNA profile because the 19.25 billion figure was almost four times the population of the earth. State v. Buckner, 125 Wn.2d 915, 890 P.2d 460 (1995). On reconsideration, we recognized our error: “Contrary to our original view in this case, we now recognize that a profile probability of 1 in 20 billion or other number greater than the earth’s population may be admissible, as the state of forensic DNA analysis allows for such probabilities.” State v. Buckner, 133 Wn.2d 63, 66, 941 P.2d 667 (1997). The mistaken first opinion had, in fact, been singled out as a bad example of statistical analysis of forensic DNA typing. Comm, on DNA Forensic Science: An Update, Nat’l Research Council, The Evaluation of Forensic DNA Evidence (Nat’l Acad. Press 1996).
¶62 Without knowing what topics were discussed, why additional questions were asked, whether individual prospective jurors had personal characteristics that may have affected the number of questions asked (hearing difficulties, comprehension levels, etc.) or personal tendencies such as to respond at length or to ask repeatedly for clarification, and likely many other factors, it is insufficient to count questions or individual words. While a marked difference in questioning may suggest discrimination, I would not rely on charts to show discrimination based on the number of questions asked or the length of the interactions with individuals during voir dire.14
*65¶63 I concur in the result reached in the lead opinion but write separately to express disagreement with going beyond the arguments of the parties.
J.M. Johnson, J., concurs with Madsen, C.J.Among other things, the lead opinion in Rhone observed that the Court in Batson overruled a prior test focusing on systematic discrimination. Rhone, 168 Wn.2d at 652 n.4 (discussing Miller-El v. Dretke, 545 U.S. 231, 269-70, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Batson; and Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), overruled by Batson, 476 U.S. 79). The Court noted that in cases decided after Swain, it had “recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case.” Batson, 476 U.S. at 95.
As the lead opinion notes, “Neither party has asked for a new standard or framework, nor have they briefed or argued what that framework might be or how it would apply in this case”; the issue was not raised or decided at the Court of Appeals; and amici, the bar, and other “stakeholders” have not provided any input. Lead opinion at 55. The lead opinion also says that this case does not present circumstances calling for exercise of our discretionary power to reach issues not raised by the parties. Id. at 52.
Although the lead opinion, notes that there are limitations to relying on statistics, inclusion of detailed graphs and pie charts suggests the opposite.