DECIDED OCTOBER 12, 1993 RECONSIDERATION DENIED NOVEMBER 4, 1993
In a steady and unmistakable progression of cases since our decision in Gamble v. State, 257 Ga. 325 ( 357 S.E.2d 792) (1987), the appellate courts of Georgia have sought to carry out the meaning of Batson v. Kentucky, 476 U.S. 79 ( 106 S.C. 1712, 90 L.Ed.2d 69) (1986), by requiring heightened scrutiny of peremptory strikes in certain suspect circumstances. This court and the Court of Appeals have held, for instance, that reliance on racial similarity between the make-up of the jury pool and the final make-up of the trial jury will not insulate the exercise of peremptory strikes from challenge ( Weems v. State, 262 Ga. 101 (2) ( 416 S.E.2d 84) (1992)); that the further the jury make-up deviates from the statistically expected result, the greater the scrutiny to be given it ( Ford v. State, 262 Ga. 558 (4) ( 423 S.E.2d 245) (1992)); that racially motivated reasons combined with proper reasons are unacceptable ( Strozier v. Clark, 206 Ga. App. 85 (5) ( 424 S.E.2d 368) (1992)); and that explanations which reflect stereotypical attitudes will be given additional scrutiny ( Tharpe v. State, 262 Ga. 110 (6) ( 416 S.E.2d 78) (1992)).
We are now faced with the issue of how to treat peremptory strikes which are exercised purely on a subjective basis. Such strikes are inherently suspect because they provide an opportunity for the infusion of impermissible racial considerations which may be difficult to recognize on appeal. We must, therefore, develop a procedure for effective review of subjective reasons. I find somewhat troubling the language in the main opinion which seems to imply that where a majority of the explanations in a Batson challenge are race-neutral, relevant, and specific, the remaining explanations need not be given close scrutiny. The Equal Protection principle as developed in and since Batson seeks to prohibit the use of race as a consideration in determining a prospective juror's fitness to serve. That being the case, each strike must stand or fall on its own explanation and not on the explanation given for other strikes. The rationale employed by the U.S. Supreme Court in post- Batson cases involving peremptory challenges has evolved beyond the defendant's right to a fairly chosen jury to include the prospective juror's right to be fairly included in the administration of justice. See, e.g., Edmondson v. Leesville Concrete Co., 500 U.S. ___ ( 111 S.C. 2077, 114 L.Ed.2d 660) (1991). In just the same way, it is time for our approach to this matter to move beyond the statement in Gamble relied upon in the majority opinion, time to look at each reason for each strike which may adversely impact an individual juror's right to be fairly treated.
However, as the main opinion correctly notes at p. 494, "a cold transcript cannot convey all of the subtle nuances of the process of jury selection." That is one reason we give considerable deference to a trial court's determinations. Nonetheless, we need not abandon as impossible the task of giving careful scrutiny to subjective reasons given to explain peremptory challenges.
[I]f we hold that a party's assertion of a wholly subjective impression of a juror's perceived qualities, without more, overcomes a prima facie showing of discrimination, Batson could easily and quickly become a dead letter. We do not believe the United States Supreme Court issued the landmark Batson opinion without intending that the state vigorously protect it.
State v. Cruz, No. CR-89-0093-Ap (1993 WL 292460, Ariz. July 29, 1993), p. 10. In Cruz, the Arizona Supreme Court imposed a requirement that
a facially neutral, but wholly subjective, reason for a peremptory strike ... must be coupled with some form of objective verification before it can overcome the prima facie showing of discrimination.
Id. at 11. I believe that imposition of that requirement would be the most effective way for this court to ensure that it is able to perform its duty to scrutinize with care the reasons given for peremptory challenges. Moreover, I believe that the burden of ensuring that objective evidence supporting the purely subjective reason is put in the record at trial is best placed on the party relying on the subjective reason.
In the present case, the State justified one of its peremptory strikes with the assertion that the juror seemed "hostile." Under the requirement I propose, the State would have the burden of putting into the record objective evidence of that attitude in order to support the subjective assertion of hostility. However, no such requirement had been imposed when this case was tried, and I agree with the main opinion that, under the standards in effect at that time, the trial court's determination in the present case that the subjective reason was not a mere pretext should be accepted. For that reason, I concur with the main opinion.