State v. Jordan

KLEINSCHMIDT, Judge,

concurring:

I believe that the majority correctly applies the existing law to the facts of this case. I write separately because in my opinion the prima facie showing required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to trigger an inquiry into the use of a peremptory challenge sets up too high a hurdle to the eradication of racial discrimination in the administration of justice. Although I know of no Arizona case which deals directly with the challenge raised by this defendant, I recognize that the Batson formula for deciding when a prima facie showing of discrimination has been made has been adopted in this state. See State v. Superi- or Court, 157 Ariz. 541, 546, 760 P.2d 541, 546 (1988), which approves of how the court of appeals analyzed the prima facie showing in State v. Superior Court, 156 Ariz. 512, 515, 753 P.2d 1168, 1171 (App. 1987).

Were I free to do so, I would adopt a different rule. I think that when any party to any action exercises a peremptory challenge to remove a member of a cognizable group from the venire, or excludes a member of such a group by failing to use its peremptory challenges, that party should be required to explain the reason for its actions.2

I recognize that the rule I suggest would create additional practical problems in the *68enforcement of Batson. If time and experience prove that the practical problems of eradicating racial discrimination in jury selection are insurmountable, I, for the reasons expressed by Justice Marshall in Bat-son, would prefer to do away with peremptory challenges altogether.

. There is no reason to differentiate between the use and the non-use of peremptory challenges in considering whether the state is acting in a discriminatory manner. State v. Scholl, 154 Ariz. 426, 743 P.2d 406 (App. 1987). Principles of equal protection preclude the defendant, as well as the state, from using peremptory challenges for discriminatory purposes. United States v. De Gross, 913 F.2d 1417 (9th Cir.1990), reh'g granted, 930 F.2d 695 (1991).