Specially Concurring:
T1 The State's Application to Assume Original Jurisdiction and Petition for Writ of Mandamus or Prohibition is properly before this Court under the provisions of the Okla homa Constitution1 and the rules of this Court.2 Rule 10.6 does not limit-nor should *509it Himit-availability of the Writ of Prohibition to those cases where the trial court does not have jurisdiction of the parties or the subject matter of the controversy in issue. We have held in numerous cases that the State of Oklahoma is entitled to seek an extraordinary writ of Prohibition or Mandamus from this Court to remedy the improper exercise of judicial authority.3 This Court's *510authority herein, resting upon nearly a century of precedent is clear.
1 2 We accepted original jurisdiction in the instant case and grant relief because the Honorable Judge Bragg's order striking, on the basis of race, the jury panel assigned to her court was not authorized by law. Jurors in Oklahoma County, in accordance with state law, are selected at random from all persons in the county who hold a valid driver's license. In the long run, if selection is random, the percentage of African Americans in jury panels will closely approximate the percentage of African Americans in the population of all licensed drivers in the county as a whole. No evidence has been presented in this case as to what that theoretical percentage is. This does not mean that every panel, sub-panel, or jury drawn will track that exact theoretical percentage. In fact it would be statistically improbable, approaching impossible, that every randomly drawn panel would have the same racial composition. Some panels, naturally, will have more African American citizens than others. The laws of mathematical probability and statistical inference tell us that the number of persons of a particular racial group that we would expect to find in a particular random sample (panel) could be expressed as an expected standard deviation from the theoretical mean, which could be graphed as a symmetrical bell curve of mathematical probability.4 As long as the procedure used to select the jurors is fair, which was not contested in this case, and the selection is random, which also was not contested, the resulting panel is fair.
T3 The goal of our justice system should be to eliminate racial discrimination in the selection of jurors, and not to promote it. The United States Supreme Court said in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69 (1986):
"Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try.... As long ago as Strauder [v. West Virginia, 10 Otto 303, 100 U.S. 303, 308, 25 L.Ed. 664 (1879) ] ... the Court recognized that *511by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror." (Emphasis added.)
T4 I am hereby authorized to state that Judge Lumpkin joins in this specially concurring vote.
. Oklahoma Constitution, Art. 7, § 4 (The Court of Criminal Appeals in criminal matters, shall have power to issue, hear, and determine writs of mandamus and prohibition).
. Rule 10.6, Rules of the Court of Criminal Appeals, Title 22 O.S., Ch. 18, App. (2000) ("A. Writ of Prohibition. Petitioner has the burden of establishing (1) a court ... has or is about to exercise judicial ... power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said power will result in injury for which there is no other adequate remedy.... B. Writ of Mandamus. Petitioner has the burden of establishing (1) he has a clear legal right to the relief sought; the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and the adequacy of mandamus and the inadequacy of other relief.").
. Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3D 506 (writ of prohibition and/or mandamus granted where magistrate attempted without authority of law and contrary to the Code of Judicial Conduct to permit television cameras to be used in the courtroom for the purpose of broadcast coverage of preliminary hearing in criminal case); State ex rel. Wideman v. Beekman, 1992 OK CR 64, 839 P.2d 661 (writ of mandamus granted directing District Judge to comply with discovery provisions of Allen v. District Court, 803 P.2d 1164 (Okl.Cr.1990) and order the defense counsel to disclose to the State the relevant oral, written, or recorded statement, or summaries of same, of witnesses whom the defense intends to call at trial); Moss [District Attorney] v. District Court of Tulsa County, 1988 OK CR 112, 756 P.2d 1250 (writ issued to District Judge prohibiting him from issuing order to conduct a pretrial line-up in a case that was still pending before preliminary hearing magistrate); State ex rel. Stout v. Craytor, 1988 OK CR 79, 753 P.2d 1365 (writ granted where trial court attempted without authority to order District Attorney to amend homicide information to comply with withdrawn plea bargain); State ex rel. Coats v. Hunter, 1978 OK CR 57, 580 P.2d 158 (writ granted prohibiting trial court from treating application for post-conviction relief as a class action; overruling respondent's claim that petitioner's remedy should be by appeal and not by extraordinary writ); State ex rel. Powell v. Shi, 1977 OK CR 213, 566 P.2d 1170, (writ issued prohibiting Judge from accepting guilty pleas to any lesser included offenses without the consent of the District Attorney); State ex rel. Wise v. Clanton, 1977 OK CR 45, 560 P.2d 588, (writ granted prohibiting magistrate from ordering District Attorney to answer incompetent question calling for hearsay. Respondent urged that Petitioner's remedy was appeal. The Court found that appeal would not be an adequate, timely remedy because similar cases were pending, and the problem would likely recur unless Prohibition were granted. "[Ilt appears that this same situation will arise in several other pending and like cases in the 12th Judicial District. ... We do not feel that the remedy of appeal in the instant case and the others likely to follow is an adequate and effective remedy. And we believe the Respondent as a Magistrate, although he has proper jurisdiction, is exercising an unauthorized application of judicial force and further justifies or requires the writ to issue.) (emphasis added); State ex rel. Young v. Warren, 1975 OK CR 77, 536 P.2d 965 (prohibition granted in part, setting aside second change of venue, setting aside appointment of trial judge, and setting aside admission to bail in capital case); State ex rel. Fallis v. Truesdell, 1972 OK CR 47, 493 P.2d 1134 (writ granted prohibiting magistrate at preliminary hearing from ordering District Attorney to advise the court of any and all statements in his possession making reference to certain testimony); State ex rel. Pitchford v. District Court of the 24th Judicial District, 1958 OK CR 35, 323 P.2d 993 (writ granted prohibiting District Judge from ordering County Attorney after preliminary hearing to file an information on or before a certain date; "Prohibition is proper remedy where an inferior tribunal presumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force."); State ex rel. Burford v. Sullivan, 86 Okl.Cr. 364, 193 P.2d 594 (1948) ("Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force.... [Prohibition is a preventive remedy issuing to restrain future action, and is directed to the court itself.").
This Court in State ex rel. Burford v. Sullivan, 193 P.2d at 601, quoted from an opinion of the Oklahoma Supreme Court, Rose v. Arnold, 183 Okla. 286, 82 P.2d 293 (1938), which said:
" 'Prohibition' is an extraordinary judicial writ issuing out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law, and its use in proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice."
The Oklahoma Supreme Court said as early as 1908 in State ex rel. Haskell, Governor v. Huston, Judge, 21 Okla. 782, 97 P. 982 (1908):
''Prohibition is a proper remedy where an inferior court is attempting to make an excessive and unauthorized application of judicial force in a case otherwise cognizable by it."
This language has been repeated by this Court in State ex rel. Boatman, Co. Atty. v. District Court Of Okmulgee County, 122 Okla. 69, 250 P. 1023, 1024 (1926). The Oklahoma Supreme Court repeated the same language in several cases including Wallace, County Treasurer v. Gassaway, District Judge, 148 Okla. 265, 298 P. 867 (1931):
''This court in Redcorn v. District Court, 141 Okl. 237, 284 P. 1113 [1930], said: 'Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force in a cause otherwise properly cognizable by it.' To the same effect is Lattimore v. Vernor, 142 Okl. 105, 288 P. 463 [1930]; Vogel v. Gassaway, 139 Okl. 61, 281 P. 302 [1929]."
The Oklahoma Supreme Court said in Redcorn v. District Court, 141 Okl. 237, 284 P. 1113 (1930):
''Prohibition is the proper remedy, where an inferior court is attempting to make an excessive and unauthorized application of judicial *510force in a case otherwise properly cognizable before it, or where the lack of jurisdiction is apparent on the face of the proceedings." Yarhola v. Duling, 86 Okl. 171, 207 P. 293 [1922]; Davis v. Dist. Ct., 129 Okl. 236, 264 P. 176, 178, 57 A.L.R. 72 [1928]; Jones v. Pugh, Judge, 130 Okl. 291, 267 P. 272 [1928]; Owen v. Dist. Ct., 43 Okla. 442, 143 P. 17, Am.Ann.Cas. 1917C, 1147 [1914]; Kincannon v. Pugh, 114 Ok. 90, 243 P. 945 [1926].
[[Image here]]
"Even though the court below possessed jurisdiction of the subject-matter ... and even though the trial court was empowered to make and enforce an order of alimony and attorney fees pendente lite ... yet we hold, admitting jurisdiction, that the lower court attempted to make an unauthorized application of judicial force.
''The temporary writ of prohibition is made permanent."
The Oklahoma Supreme Court also in State ex rel. Haskell, Governor v. Huston, Judge, 97 P. at 990 (1908), quoted from a treatise in accord with its decision:
"High's Extraordinary Legal Remedies (2d Ed.) says, in speaking of this writ [prohibition]: 'Sec. 781. The province of this writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but is also extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject-matter in controversy, «_ has exceeded its legitimate powers.'"
. For example, if 30,000 out of 350,000 licensed drivers in a hypothetical county were members of a certain racial group, assuming a large number of drawings, we would expect the most frequently occurring number of persons from that racial group occurring in a randomly drawn sample of 35 persons would be three (3) (the peak of the bell curve). Somewhat less frequently, we would expect 2 or 4 members from that racial group to be present in a random sample of 35 persons. (The probability that two (2) members of that group would be drawn would be the same as the probability that four (4) members of that group would be drawn.) Somewhat less frequently still, we would expect 1 or 5 members from that racial group to be present in a random sample of 35 persons. (The probability that one (1) member of that group would be drawn would be the same as the probability that five (5) members of that group would be drawn.) Since it would never be legal to quash a fairly drawn panel for racial reasons, it would be just as illegal to quash the panel because it contained only one (1) member of a racial group as it would be to quash a panel because it contained five (5) members of that racial group.