dissenting:
Although I have no quarrel with part III of the majority opinion, I cannot join in part II, in which my colleagues reject Safeway’s argument based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. In my view, the entire trial was irreparably tainted by the admission of Mrs. Buekmon’s counsel that he struck three potential jurors “because they were white.” In these circumstances the trial judge had absolutely no choice but to declare a mistrial,1 summon a new venire, and begin the jury selection process anew. The fairness of the trial was utterly compromised from that moment on, and no explanation, no rationalizing, no backtracking on the part of counsel could repair the damage. As the Supreme Court once said in another context, “He can never get the cat back in the bag.” United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947).
A claim that an attorney is engaging in improper discrimination in the exercise of peremptory challenges, in violation of Bat-son, “is very serious and demands the closest possible scrutiny by both the trial court and this court.” Jefferson v. United States, 631 A.2d 13, 15 (D.C.1993); accord, e.g., Tursio v. United States, 634 A.2d 1205, 1211 (D.C.1993). When counsel blatantly admits on the record that he has done what Batson forbids, as counsel did in this ease (“I struck all three of those people because they were white”), the court simply cannot close its eyes to that admitted violation. Nor can the court evade its duty by trying to pass the buck to counsel for the opposing party, as the trial judge did here. After Mrs. Buckmon’s attorney made his shocking admission that he had deliberately engaged in improper conduct, the judge turned to Safeway’s counsel and asked whether he wanted a new, untainted jury panel. Safeway’s counsel quite properly replied, ‘Tour Honor, that’s not Safeway’s burden.” I agree totally with counsel’s comment that, once the issue of unlawful discrimination in jury selection was raised, its resolution was “a matter for the court to decide.” The court’s decision did not, and could not, depend on the wishes or preferences of Safeway’s counsel.
My colleagues make much of the fact that Safeway’s counsel never requested a mistrial and, indeed, “refused to do so when asked.” Ante at 603. To me, this is beside the point. The failure of Safeway’s counsel to do what he probably should have done did not relieve the court of its own independent duty to act, and act decisively. I would hold that the court’s failure to dismiss the jury and summon a new venire was plain error requiring reversal of the judgment, regardless of what counsel did or did not do. Batson is but one in a steady stream of cases from the Supreme Court, dating back more than a century,2 which teach us that racial discrimination in jury selection is utterly intolerable and must be fought with every weapon at the courts’ disposal. Excluding white persons from a jury “because they [are] white,” as counsel admittedly did here, is no different, in kind or in degree, from excluding black persons because they are black — and Batson *608prohibits both.3 Once Mrs. Buckmon’s attorney conceded on the record that he had polluted the judicial waters, there simply were no “race-neutral” reasons that could have dispelled or diminished the pollution. Counsel’s statement was like the proverbial skunk thrown into the jury box; the skunk can be removed from the courtroom, but the tainted jury remains. The only possible remedy in this case was a new jury, drawn from a new venire.
As I view this case, Safeway was deprived of its right to a fair trial. Since my colleagues have a different opinion, I respectfully dissent.
. The jury had been sworn by the time the Bat-son issue was raised, but no testimony had been taken.
. See, e.g., Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880).
. That Batson leaves no room for the sort of conduct that counsel admitted in this case is illustrated by our decision in Tursio v. United States, supra. In that case a Hispanic defendant was charged with the murder of a black man. The prosecutor used nine of his ten peremptory challenges to eliminate all the whites from the regular jury, leaving an all-black jury with only one white alternate. The trial judge concluded after a hearing that the prosecutor’s challenges were not motivated by a discriminatory purpose. We reversed, holding inter alia that the trial judge had erred in accepting the prosecutor’s explanations, which we found legally insufficient to overcome the defendant’s prima facie showing of discrimination. See 634 A.2d at 1211-1213.