dissenting.
I respectfully dissent.
Since the decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), our subsequent jurisprudence has largely eroded what seemed at the time to be a landmark decision. Today, few prosecutors or other trial counsel are so inept that, when faced with a Batson challenge, they are unable to utter an explanation *1226that is facially racially neutral for striking all members of a cognizable racial group from a prospective jury panel. And, the burden of showing purposeful racial discrimination has proved largely unsustainable within the confines of any individual jury selection process. As a result, two decades after Batson, its goal of ensuring "that no citizen is disqualified from jury service because of his race" remains elusive. Id. at 99, 106 S.Ct. 1712.
Although approximately twenty-five per cent of Marion County is African-American,4 only two out of thirty prospective jurors in this case were African-American. Those two were struck by the prosecutor ensuring a jury with no African-American members. The reasons given by the prosecutor were-on their face-racially neutral.
I would like to see our jurisprudence move to the point that to use a peremptory challenge to strike the only prospective members of a cognizable racial group from a prospective jury requires more than a showing of racial neutrality. I would like to see such challenges treated as challenges for cause. Finally, I would like to see the burden placed on the party who exercises peremptory challenges to strike all members of a racial group to show an absence of racial motivation, not on the party who opposes the challenges.
The law is not there yet. And, until it gets there, the role of the trial judge in ruling on Batson challenges is critical.
The trial court has seen the prospective Jurors, heard their answers, observed their affect. The trial court has heard the peremptory challenges and the reasons for them. In Forrest v. State, 757 N.E.2d 1003, 1004 (Ind.2001), our Supreme Court said, "[T]he trial court must determine whether the party contesting the peremptory challenge has proved purposeful racial discrimination." See also Highler v. State, 854 N.E.2d 823, 828 (Ind.2006) (Trial court must determine whether purposeful discrimination has been established.)
Here, the trial court here utilized an improper standard-That the challenger must show a pattern of racial discrimination. It then found a racially neutral reason for "at least one" of the peremptory strikes, but failed to make a determination as to the other. The majority concludes that the trial court's methodology was improper, but it then proceeds itself to make the determinations that the prosecutor's reason for the second peremptory challenge was racially neutral and the challenger failed to show purposeful racial discrimination.
Here is where I part from my colleagues. I think that only the trial judge can determine whether the peremptory challenge is racially motivated and only the trial judge can decide whether purposeful discrimination has been shown. I do not think that we should make these determinations from reviewing a cold record. Accordingly, I would reverse Jones' conviction and remand for a new trial.
. See www.census.gov