¶1¶[156 (dissenting) — Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), was a great, symbolic step forward in providing equal justice under law. But Batson, sadly, has remained primarily symbolic. In practice, Batsonmerely requires the machinery of justice pause; consider whether a preemptory challenge was racially motivated; find a plausible sounding, nondiscriminatory reason to dismiss a juror; and move on. Batsonwas doomed from the beginning because it requires one elected person to find that another elected person (or one representing an elected person) acted with a discriminatory purpose. This has proved to be an impossible barrier. Further, Batson, by design, does nothing to police jury selection against unconscious racism or wider discriminatory impacts. I am skeptical — given that we have never reversed a verdict on a Batsonchallenge — that it does much to police discriminatory purpose itself.
¶2¶157 Batsonignores the fact that discrimination is discrimination whether it is purposeful or not. It ignores the fact that discrimination is real whether it is done with racist intent or not. It ignores the fact that the minority *119juror who is removed because of discrimination is denied the right to participate in one of the two most fundamental democratic processes of our nation. We have learned something from history, and this case gives us an opportunity to show it.
¶3¶158 I believe Justice Alexander was right in State v. Rhone, 168 Wn.2d 645, 229 P.3d 752 (2010). Following his dissent, I would hold that a prima facie case of discrimination is established when the sole remaining venire member of a constitutionally cognizable racial group is peremptorily challenged. Id. at 661 (Alexander, J., dissenting). I would do this not under Batson, but under our inherent supervisory power and based on our own understanding of the pernicious effect of unconscious racism on a fair system of justice. See State v. Bennett, 161 Wn.2d 303, 305, 165 P.3d 1241 (2007); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 674-75, 72 P.3d 151 (2003) (citing State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d 121, 128-29, 492 P.2d 536 (1972) (finding the difference between de facto and de jure discrimination constitutionally insignificant), overruled on other grounds by Cole v. Webster, 103 Wn.2d 280, 288, 692 P.2d 799 (1984)).
¶4¶159 I do not believe it would be wise of this court to abandon peremptory challenges altogether. Peremptory challenges are important in ensuring fair trials because jurors are sometimes not candid or fail to understand they have deep seated prejudices that may not be easily developed during voir dire to support a for-cause challenge.
¶5¶160 In this case, I am simply not convinced that Kirk Saintcalle received a fair trial before a truly representative jury. I would reverse and remand for a new trial.
¶6¶161 I respectfully dissent.