specially concurring.
I join in the Court’s decision which holds 22 O.S.1981, § 654 is constitutional. The scope and definition of due process has always challenged courts at all levels. Recently, this Court set out the historical analysis of the definition of “due process”. See Cooper v. State, 889 P.2d 293, 300-302 (Okl.Cr.1995). That same analysis is utilized to address the due process issues presented in this case.
Peremptory challenges have been observed since territorial days. See St.1890, § 5613: St.1893, § 5178; Laws 1895, p. 200; St.1903, § 5467. When the first set of statutes was compiled, the peremptory challenge was a part of the system. See Laws 1908, § 3520. Indeed, it has “very old credentials,” Swain v. Alabama, 380 U.S. 202, 213, 85 S.Ct. 824, 832, 13 L.Ed.2d 759 (1965), going back at least to the fifteenth century in the Common Law. See Id., 380 U.S. at 213 & n. 10, 85 S.Ct. at 832 & n. 10. Clearly, then, it has been the “law of the land” in that it has been a part of the rules and forms established for public trials. And while this is in itself not definitive, its well-established existence for over one hundred years in this territory/state and several centuries elsewhere is a strong indication it is part of the process that is due a criminal defendant. See Schad v. Arizona, 501 U.S. 624, 637, 111 S.Ct. 2491, 2499-500, 115 L.Ed.2d 555 (1991) (plurality) (“In translating these demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, we look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing [the particular statutory provision].”); see also Id., 501 U.S. at 650, 111 S.Ct. at 2507 (Sealia, J., concurring in the judgment) (“It is precisely the historical practices that define what is ‘due.’ ‘Fundamental fairness’ analysis may appropriately be applied to departures from traditional American conceptions of due process; but when judges test their individual notions of ‘fairness’ against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges.”) In fact, the Supreme Court once observed the challenge, even though not constitutionally required, is regarded as “one of the most important of the rights secured to the accused.” Swain, 380 U.S. at 219, 85 S.Ct. at 835.
Additionally, since both sides have the same rights and limitations under the peremptory challenge, it is applied alike to both sides, in a non-arbitrary manner. See 22 O.S.1981, § 655; Georgia v. McCollum, 505 U.S. 42,-, 112 S.Ct. 2348, 2358-59, 120 L.Ed.2d 33, 51 (1992) (holding the prosecution in a criminal trial also has a right to make a Batson challenge during jury selection). This point was just flat overlooked by the panel. And obviously, the limitations of Batson itself preclude the challenge from being used in a way that discriminates against either a defendant or a venire member. Therefore, a defendant cannot claim the use of peremptories per se deprives him of his right to due process or a fair and impartial jury.
In her separate opinion, Judge Penny Howard correctly observed the Supreme Court has only prohibited use of the challenge in an unconstitutional manner. “Our state and federal constitutions do not compel us to strike down a portion of our judicial heritage originating in English common law. It compels us to meticulously guard against *1003discriminatory voir dire practices.” Id. at 6. She also correctly observed elimination of racial discrimination will not occur by eliminating the peremptory challenge; rather, “elimination of racial discrimination will occur from conscientious trial judges scrupulously guarding against discriminating conduct by prosecutors and defense attorneys.” Id. at 7. This is an accurate analysis of the law and the important role of the trial judge in our judicial system.
I therefore concur in the Court’s determination the panel erred in holding the peremptory challenge unconstitutional. I also concur in the Court’s decision to affirm the judgment and sentence.