State v. Porter

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KEYAIRA PORTER, Appellant.

No. 1 CA-CR 18-0301
FILED 4-9-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-137407-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore

REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant

OPINION

Chief Judge Peter B. Swann delivered the opinion of the Court, in which
Judge Kenton D. Jones joined. Presiding Judge Paul J. McMurdie dissented.

STATE v. PORTER
Opinion of the Court

S W A N N, Judge:

¶1 The state, prosecuting a black defendant, sought to remove all
persons of color from the jury pool. It peremptorily struck the only two
black prospective jurors and attempted unsuccessfully to strike for cause
the only other person of color on the panel. The defendant raised a
challenge under Batson v. Kentucky, 476 U.S. 79 (1986). For one of the
peremptory strikes, the state proffered two facially race-neutral
explanations, one of which was based on the prospective juror’s demeanor.
The trial court denied the Batson challenge without expressly addressing
either the demeanor-based explanation or the racially disproportionate
impact of the strikes. Applying Snyder v. Louisiana, 552 U.S. 472 (2008), we
hold that the court was required to make explicit findings on those two
points. We remand to permit the trial court to make the necessary findings
or, if the passage of time has rendered that impossible, to vacate the
defendant’s conviction and retry the case.

FACTS AND PROCEDURAL HISTORY

¶2 Keyaira Porter, a black woman, was tried in March 2018 for
aggravated assault against a police officer and resisting arrest.

¶3 During jury selection, Porter raised a Batson challenge based
on the state’s use of peremptory strikes against the only two black
individuals on the prospective jury panel (Prospective Jurors 2 and 20) and
its earlier unsuccessful attempt to strike for cause the only other potential
juror of color (Prospective Juror 10, against whom neither party exercised a
peremptory strike).

¶4 The prosecutor explained that she struck Prospective Juror 2
because that juror’s “brother was convicted of a crime that is of the same
nature as this matter, aggravated assault,” and “[s]he did not seem to be
very sure with her responses to the State whether how [sic] that impacted
her or not.” As to Prospective Juror 20, the prosecutor explained that she
struck that juror because she “had been on a criminal jury in the past which
had found an individual not guilty” and “had also been the foreperson of
that jury.” Finally, the prosecutor explained that her unsuccessful request
to strike Prospective Juror 10 for cause was premised on the fact that
Prospective Juror 10 “had a lot of emotional things going on with her,
considering her daughter had just been killed not even a year ago,” and
“she seemed to be very upset.” The state asserted that it had not based any
of its decisions on “anything to do with anyone’s color or nationality.”

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STATE v. PORTER
Opinion of the Court

¶5 Porter pointed out that, in response to the state’s questions,
Prospective Juror 2 stated that her convicted brother was treated fairly, that
his experience would not influence her decision-making as a juror, and that
she could follow the rules provided by the court. Porter emphasized that
“now there literally is no African American jurors that even remain.”

¶6 The trial court denied the Batson challenge. The court held:

The Court has reviewed the other strikes by both
parties in this case, as well as the Court’s notes. The Court
does note that the State also struck juror[] 19 [], who . . . had
rendered [a] not guilty verdict[] . . . .

Juror 25 served as a foreperson on a prior jury, and
juror 25 was stricken by the State.

The Court does find that it’s reasonable that the State
would want to eliminate a juror that had an experience where
their close family member was arrested for a similar charge to
that which is involved in this case, and to strike jurors who
may be stronger personalities or are willing to acquit based
on the evidence presented to them.

So the Court does find that the explanation given by
the State is race neutral, and the strikes will be allowed for
jurors . . . 2 and 20.

And juror number 10, the Court had even expressed
some concern about the juror’s concern about her ability to
focus on this case based upon her daughter’s recent death,
killed in a car accident.

So the Court does not find any purposeful[]
discrimination as to the three identified jurors.

¶7 The jury was seated and sworn, and ultimately found Porter
not guilty of aggravated assault but guilty of resisting arrest. The court
entered judgment on the verdict and imposed supervised probation. Porter
appeals.

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STATE v. PORTER
Opinion of the Court

DISCUSSION

I. THE TRIAL COURT FAILED TO MAKE NECESSARY FINDINGS
REGARDING PORTER’S BATSON CHALLENGE.

¶8 Batson, the seminal case, held that “the central concern of
the . . . Fourteenth Amendment was to put an end to government
discrimination on account of race,” and that purposeful “[e]xclusion of
black citizens from service as jurors [in a criminal case] constitutes a
primary example of the evil the Fourteenth Amendment was designed to
cure.” 476 U.S. at 85. Batson recognized that such exclusion violates both
defendants’ and excluded jurors’ equal protection rights and also
undermines public confidence in the justice system. Id. at 86–88; see also,
e.g., Flowers v. Mississippi, 139 S.Ct. 2228, 2242 (2019). Racial discrimination
in the jury selection process “is at war with our basic concepts of a
democratic society and a representative government.” Johnson v. California, 545 U.S. 162, 172 (2005) (citation omitted). “Our Constitution’s Framers
recognized that trial by jury is ‘the very palladium of free government.’ The
Federalist No. 83 (Alexander Hamilton). For the jury to perform its historic
and beneficial role in our democracy, it must be constituted with no taint of
purposeful discrimination based on race . . . .” United States v. Alanis, 335
F.3d 965, 970 (9th Cir. 2003) (footnote omitted). When jury selection is
“tainted with racial bias, that ‘overt wrong . . . casts doubt over the
obligation of the parties, the jury, and indeed the court to adhere to the law
throughout the trial.’” Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231, 238
(2005) (citation omitted). We take from these commands of our highest
court an obligation to be vigilant in guarding against racial discrimination
in jury selection, and to refrain from passively affirming convictions when
we see a pattern of peremptory strikes against a racial group.

¶9 To combat racial discrimination in the jury selection process,1
Batson and its progeny established a three-step analytical framework:

[O]nce the opponent of a peremptory challenge has made out
a prima facie case of racial discrimination (step one), the
burden of production shifts to the proponent of the strike to
come forward with a race-neutral explanation (step two). If a
race-neutral explanation is tendered, the trial court must then

1 We recognize that Batson has been extended to contexts beyond
racial discrimination by criminal prosecutors. See Flowers, 139 S.Ct. at 2243.
The case before us, however, presents a classic Batson issue.

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STATE v. PORTER
Opinion of the Court

decide (step three) whether the opponent of the strike has
proved purposeful racial discrimination.

Purkett v. Elem, 514 U.S. 765, 767 (1995). Though “[s]tates do have flexibility
in formulating appropriate procedures to comply with Batson,” Johnson, 545
U.S. at 168, Arizona has not elaborated on the basic framework, see, e.g.,
State v. Urrea, 244 Ariz. 443, 445, ¶ 9 (2018).

¶10 The Batson framework is not pro forma—it “is designed to
produce actual answers to suspicions and inferences that discrimination
may have infected the jury selection process.” Johnson, 545 U.S. at 172. “In
the decades since Batson, th[e Supreme] Court’s cases have vigorously
enforced and reinforced the decision, and guarded against any
backsliding.” Flowers, 139 S.Ct. at 2243.

¶11 Step one of the Batson framework may be satisfied by, among
other things, a pattern of strikes against minority jurors. Batson, 476 U.S. at
97. Step two, in turn, may be satisfied by the striking party’s offer of any
facially race-neutral explanation for the strikes. Purkett, 514 U.S. at 768;
Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion). At step
two, even a “silly or superstitious” race-neutral reason will suffice, because
the ultimate burden of persuasion never shifts from the opponent of the
strikes. Purkett, 514 U.S. at 768. It is at step three that the trial court must
determinate whether the proffered reasons are pretexts for purposeful
discrimination. Id.

¶12 Step three is critical—“[i]f any facially neutral reason sufficed
to answer a Batson challenge, then Batson would not amount to much more
than [its ineffective predecessor case].” Miller-El II, 545 U.S. at 240. The
prosecutor’s demeanor often is “the best evidence” in step three. Snyder,
552 U.S. at 477. But it is not the only evidence. “Determining whether
invidious discriminatory purpose was a motivating factor demands a
sensitive inquiry into such circumstantial . . . evidence of intent as may be
available.” Foster v. Chatman, 136 S.Ct. 1737, 1748 (2016) (citation omitted).
The trial court must “consider the prosecutor’s race-neutral explanations in
light of all of the relevant facts and circumstances, and in light of the
arguments of the parties.” Flowers, 139 S.Ct. at 2243 (emphasis added); see
also Snyder, 552 U.S. at 478 (holding that “all of the circumstances that bear
upon the issue of racial animosity must be consulted”); Miller-El II, 545 U.S.
at 252 (holding that Batson “requires the judge to assess the plausibility of
[a race-neutral] reason in light of all evidence with a bearing on it”).

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STATE v. PORTER
Opinion of the Court

¶13 Here, the trial court made no findings concerning the
prosecutor’s demeanor. And while it did determine that the proffered race-
neutral justifications were indeed race neutral, it did not make a
determination that those justifications were credible in the face of the pattern
of peremptory strikes. And to the extent that the court satisfied itself that
the strike of Juror 20 was supported by the strike of another juror with
similar experience, there was no such analysis of the strike of Juror 2.

¶14 The step-three analysis necessarily is gestalt. See Flowers, 139
S.Ct. at 2251 (emphasizing that Batson-violation decision was not based on
any one fact alone, but on “all of the relevant facts and circumstances taken
together”); see also Jones v. State, 938 A.2d 626, 633 (Del. 2007) (“[T]he reason
offered for each particular strike cannot be viewed in isolation; rather, the
plausibility of each explanation ‘may strengthen or weaken the assessment
of the prosecution’s explanation as to other challenges.’” (citation omitted)).
Comparison of stricken and non-stricken jurors’ characteristics, as well as
comparison of how the prosecutor questioned those jurors, may be
relevant. See Flowers, 139 S.Ct. at 2244, 2246–51; but see State v. Medina, 232
Ariz. 391, 405, ¶ 48 (2013) (declining to perform comparative analysis when
comparison not raised at trial). The pattern or proportional racial impact of
the strikes also may be relevant. See Flowers, 139 S.Ct. at 2244, 2251
(emphasizing the evidentiary import of state’s persistent pattern of striking
almost all black prospective jurors); Medina, 232 Ariz. at 405, ¶ 50 (“The
presence of other minority jurors on the panel is evidence of the State’s
nondiscriminatory motive.”). And when a party asserts a juror was stricken
based on his or her demeanor, the court must evaluate whether the alleged
demeanor credibly can be attributed to the juror. Snyder, 552 U.S. at 477.
“[I]t may be uncomfortable and unpleasant for a trial judge to undertake
such a difficult and subtle inquiry with the precision and persistence that
may be required to determine counsel’s true reasons for striking a juror.”
Coombs v. Diguglielmo, 616 F.3d 255, 264 (3d Cir. 2010). But “if Batson is to
be given its full effect, trial courts must make precise and difficult inquiries
to determine if the proffered reasons for a peremptory strike are the race-
neutral reasons they purport to be, or if they are merely a pretext for that
which Batson forbids,” bearing in mind that purposeful discrimination need
not always result from conscious racism. Id. (emphasis added).

¶15 The trial court’s ultimate finding is entitled to great deference,
Hernandez, 500 U.S. at 366–69 (plurality opinion), and we will not reverse
the denial of a Batson challenge absent clear error, State v. Newell, 212 Ariz.
389, 400, ¶ 52 (2006). But “[d]eference does not by definition preclude
relief.” Miller-El v. Cockrell (“Miller-El I”), 537 U.S. 322, 340 (2003). We must
ensure that the Batson framework is “vigorously enforced” to serve its

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STATE v. PORTER
Opinion of the Court

goals. Flowers, 139 S.Ct. at 2243. Otherwise, a Batson analysis becomes
nothing more than a rubber stamp allowing the government to discriminate
with impunity.

¶16 The Batson framework contemplates meaningful appellate
review, not blind assent. See Miller-El I, 537 U.S. at 340; State v. Lucas, 199
Ariz. 366 (App. 2001); State v. Anaya, 170 Ariz. 436 (App. 1991). Express
findings by the trial court enable such review and “foster[] confidence in
the administration of justice without racial animus.” United States v. Perez,
35 F.3d 632, 636 (1st Cir. 1994); see also United States v. Vann, 776 F.3d 746,
757 (10th Cir. 2015). To be sure, the trial “court need not make detailed
findings addressing all the evidence before it,” Miller-El I, 537 U.S. at 347,
and, in Arizona, may even conduct the entire step-three analysis implicitly
in some cases, State v. Canez, 202 Ariz. 133, 147, ¶ 28 (2002), abrogated on other
grounds by State v. Valenzuela, 239 Ariz. 299 (2016).2 But in other cases,
express findings are essential.

¶17 In Snyder, the United States Supreme Court held that when
the trial court is presented with two explanations for a strike and one of
them is based on the juror’s demeanor, we cannot presume that the trial
court credited the demeanor-based explanation simply because it denied
the Batson challenge. 552 U.S. at 479. Snyder explained:

[D]eference is especially appropriate where a trial judge has
made a finding that an attorney credibly relied on demeanor
in exercising a strike. Here, however, the record does not

2 Some federal circuits have held otherwise. See, e.g., Higgins v. Cain,
720 F.3d 255, 268 (5th Cir. 2013) (broadly describing “the presence of a
circuit split regarding whether a trial judge must make explicit findings of
fact at Batson’s third step”); United States v. McAllister, 693 F.3d 572, 579–82
(6th Cir. 2012) (remanding for “explicit on-the-record findings” after trial
court rejected Batson challenge without giving any indication that it
engaged in the required three-step analysis); United States v. Rutledge, 648
F.3d 555, 557–62 (7th Cir. 2011) (remanding for adjudication of Batson
challenge on the merits where trial court made no express findings
regarding credibility of explanations that one juror was struck based purely
on her demeanor and other was struck based on his voiced concern that he
might be stereotyped based on his race); Dolphy v. Mantello, 552 F.3d 236,
239 (2d Cir. 2009) (remanding for adjudication of Batson challenge on the
merits where trial court simply stated that the reason for the strike was race
neutral, thereby failing to indicate that it credited the inherently suspect
explanation that juror was struck based on obesity).

7

STATE v. PORTER
Opinion of the Court

show that the trial judge actually made a determination
concerning [the prospective juror]’s demeanor. The trial
judge was given two explanations for the strike. Rather than
making a specific finding on the record concerning [the
prospective juror]’s demeanor, the trial judge simply allowed
the challenge without explanation. It is possible that the
judge did not have any impression one way or the other
concerning [the prospective juror]’s demeanor. [The
prospective juror] was not challenged until the day after he
was questioned, and by that time dozens of other jurors had
been questioned. Thus, the trial judge may not have recalled
[the prospective juror]’s demeanor. Or, the trial judge may
have found it unnecessary to consider [the prospective
juror]’s demeanor, instead basing his ruling completely on the
second proffered justification for the strike. For these reasons,
we cannot presume that the trial judge credited the
prosecutor’s assertion that [the prospective juror] was
nervous.

Id. The uncertainty identified in Snyder will exist in every case in which the
trial court fails to expressly accept or reject a demeanor-based explanation
that is accompanied by other facially race-neutral explanations. And
because Arizona law provides that one non-race-neutral reason for a strike
will taint any other neutral reason for the strike, State v. Lucas, 199 Ariz. 366,
369, ¶¶ 11–13 (App. 2001), Snyder bars blind affirmance when the trial court
fails to credit expressly a demeanor-based explanation coupled with
another explanation. Snyder thereby ensures that Batson is meaningfully
enforced in such circumstances.

¶18 The dissent emphasizes the Supreme Court’s decision in
Thaler v. Haynes, 559 U.S. 43 (2010). See infra ¶¶ 37–38. But Thaler did not
alter Snyder. Thaler simply held that neither Batson nor Snyder (which, the
Court noted, was temporally inapplicable in any event) established a
“blanket” or “categorical” rule requiring that a judge personally observe
and recall a prospective juror’s demeanor. 559 U.S. at 48–49. It did not hold
that express findings are never required. See id. And we can see why no
findings were required in Thaler—that habeas case concerned a single strike
based on a single explanation concerning a juror-behavior characterization
that the defendant did not dispute. Id. at 45–46. By contrast, this case
involves a successful effort to remove all of the prospective black jurors.

¶19 The dissent also cites our state supreme court’s decisions in
State v. Escalante-Orozco, 241 Ariz. 254 (2017), and State v. Lynch, 238 Ariz.

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STATE v. PORTER
Opinion of the Court

84 (2015). See infra ¶ 40. As an initial matter, and as the dissent
acknowledges, the United States Supreme Court reversed Lynch. See Lynch
v. Arizona, 136 S.Ct. 1818 (2016). We further note that Lynch did not explain
or cite authority to support its conclusory acceptance of implicit step-three
findings. See 238 Ariz. at 104, ¶ 70. With respect to Escalante-Orozco, the
trial court “did not share” the prosecutor’s observation that a juror was
inattentive, “so made ‘no finding of that’” and relied instead on the
prosecutor’s alternative explanation for the strike—the juror’s occupation.
241 Ariz. at 271–72, ¶ 36. We do not perceive that as inconsistent with
Snyder. To the contrary, it appears that the trial court in Escalante-Orozco
complied precisely with Snyder—it acknowledged that it could not verify
the demeanor-based explanation and accepted a different, factually
verifiable race-neutral explanation.

¶20 Following the logic of Snyder, we hold today that when
confronted with a pattern of strikes against minority jurors, the trial court
must determine expressly that the racially disproportionate impact of the
pattern is justified by genuine, not pretextual, race-neutral reasons. We
recognize that this holding, though consistent with precedent, is more
granular than this court’s past Batson decisions. But to hold otherwise
would be to transform deference to willful blindness. And though in Canez
our state supreme court accepted an implicit step-three analysis for a Batson
challenge when the state struck five of seven Hispanic panelists in a capital
case, Canez predated Snyder and did not present a situation in which all
prospective jurors of the same race as the defendant were stricken. See 202
Ariz. at 145–47, ¶¶ 16–28. We therefore do not read Canez—or the similar
unpublished decisions cited by the dissent, see infra ¶ 39—as controlling in
this case.

¶21 Here, the defendant is black. The state struck Prospective
Jurors 2 and 20, the only two black panelists, and attempted unsuccessfully
to strike for cause Prospective Juror 10, the only other person of color on
the panel. There cannot be a more stark pattern for Batson purposes than
when the state attempts to remove all minorities from the jury. The state
offered two facially race-neutral explanations for striking Prospective Juror
2: her brother’s conviction for aggravated assault and the fact that “[s]he
did not seem to be very sure with her responses to the State whether how
[sic] that impacted her or not.” The transcript reveals, however, that
Prospective Juror 2 unambiguously stated that her brother’s conviction
would have no impact on her ability to serve as a juror. Accordingly, the
uncertainty the prosecutor asserted was present in the juror’s responses
either must have been manifested in her demeanor or the assertion was
pretextual. The trial court, however, made no finding concerning the juror’s

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STATE v. PORTER
Opinion of the Court

demeanor. Without such a finding, the court’s conclusory statement that
there was no purposeful discrimination was not sufficient. We cannot
presume that the court found that the state’s pattern of strikes and
attempted strikes against minority panelists was merely a race-neutral
coincidence, and we see nothing in the record to suggest that it proceeded
past step two of the Batson analysis. The dissent emphasizes that in
“exceptional circumstances,” including “where the court abandons its
responsibilities under Batson, this court must not hesitate to act.” See infra
¶ 31. On this point, we agree with the dissent. If the pattern in this case
does not raise concern, then Batson is a dead letter.3

¶22 Were we to defer to “implicit” findings that uphold a pattern
of challenges to every minority juror, we would tacitly contribute to the
perception that Batson is merely aspirational and can easily be sidestepped.
We refuse to do so. In Batson, the United States Supreme Court set out to
eliminate racial discrimination by the government, and it has unwaveringly
confirmed its seriousness about that aim ever since. We agree with the
dissent that our state supreme court could (and should) improve the Batson
framework to promote the Supreme Court’s purpose. But we hold in this
case that existing Supreme Court precedent entitles Porter to a remand so
that the trial court may apply Batson in the rigorous, unflinching manner
that its authors intended. If the passage of time has made it impossible for
the trial court to make reliable, fully informed findings under the Batson
framework, the court must vacate Porter’s conviction and hold a new trial.

II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
INSTRUCTING THE JURY ON RESISTING ARREST UNDER A.R.S.
§ 13-2508(A)(1).

¶23 In the interest of judicial efficiency in the event of a retrial on
the merits, we address Porter’s second argument on appeal.

3 The dissent finds the record in this case “troubling” and shares our
“misgivings” about the lack of support in the transcript for the prosecutor’s
explanation of the strike of Juror 2. See infra ¶ 29. The panel is therefore
united in the view that this case presents the specter of racial
discrimination. To a citizen who has been deprived of liberty based on a
trial before a jury that may have been infused with racial discrimination,
this is more than an academic concern that can wait for the next case. And
we owe the public a duty to ensure that the courts will lead by example in
purging discrimination from the justice system. We therefore do not
hesitate to act.

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STATE v. PORTER
Opinion of the Court

¶24 Porter was charged with resisting arrest. Under A.R.S. § 13-
2508,

A. A person commits resisting arrest by intentionally
preventing or attempting to prevent a person reasonably
known to him to be a peace officer, acting under color of such
peace officer’s official authority, from effecting an arrest by:

1. Using or threatening to use physical force against the
peace officer or another.

2. Using any other means creating a substantial risk of
causing physical injury to the peace officer or another.

The direct complaint and information referenced only § 13-2508(A)(2).
Before trial, however, the state requested a preliminary jury instruction that
defined resisting arrest under both § 13–2508(A)(1) and (2). Over Porter’s
objection, the superior court granted the state’s request and instructed the
jury accordingly.

¶25 Porter contends that the jury instruction effectively altered
the elements of the resisting arrest charge, thereby impermissibly
constituting “a change in the nature of the offense” without notice. State v.
Freeney, 223 Ariz. 110, 113, ¶ 17 (2009). We review for abuse of discretion.
State v. Johnson, 198 Ariz. 245, 247, ¶ 4 (App. 2000).

¶26 To enable preparation of a defense, a defendant has a
constitutional right to notice of the nature of the charged offenses. State v.
Sanders, 205 Ariz. 208, 213, ¶ 16 (App. 2003), overruled on other ground by
Freeney, 223 Ariz. 114. Ariz. R. Crim. P. 13.1(a) therefore requires that a
charging document be “a plain, concise statement of the facts sufficiently
definite to inform the defendant of a charged offense.” Amending a charge
is constitutionally permitted without the defendant’s consent if it does not
change the nature of the offense or prejudice the defendant. Sanders, 205
Ariz. at 214, ¶ 19. “The charging document is deemed amended to conform
to the evidence admitted during any court proceeding.” Ariz. R. Crim. P.
13.5(b); see Freeney, 223 Ariz. at 114, ¶ 24 (“[C]ourts look beyond the
indictment to determine whether defendants received actual notice of
charges, and the notice requirement can be satisfied even when a charge
was not included in the indictment.”).

¶27 We hold that the trial court did not abuse its discretion
because the jury instruction did not change the nature of the offense. The
direct complaint and information alleged that Porter created a substantial

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STATE v. PORTER
Opinion of the Court

risk of causing physical injury to the police officer, an allegation that
encompassed Porter’s using, or threatening to use, physical force against
him. Further, Porter cannot show prejudice. At the preliminary hearing,
eyewitness testimony established that Porter swung at the officer, scuffled
with him, and tried to bite his arm. Porter, therefore, knew well before trial
that § 13-2508(A)(1) was a basis for the resisting arrest charge, and she had
a full and fair opportunity to prepare her defense. See State v. Barber, 133
Ariz. 572, 577 (App. 1982) (noting propriety of amendment to an indictment
hinges on whether the amendment violated the defendant’s right to “notice
of the charges against him with an ample opportunity to prepare to defend
against them”); see also Johnson, 198 Ariz. at 249, ¶ 13 (“To be meaningful,
an ‘ample opportunity to prepare to defend’ against amended charges
generally must occur before the state has rested its case.” (citation omitted)).

CONCLUSION

¶28 We remand for further proceedings regarding Porter’s Batson
challenge.

M c M U R D I E, Judge, dissenting:

¶29 Because I would affirm the superior court’s ruling on Porter’s
objection to the strikes of Prospective Jurors 2 and 20, disagree with the
majority’s interpretation of Snyder v. Louisiana, 552 U.S. 472 (2008), and find
that the majority’s holding elevates form over substance in a manner that
will do little to advance the purposes of Batson v. Kentucky, 476 U.S. 79
(1986), I dissent.

A. Under Arizona’s Current Batson Jurisprudence, the Superior
Court Did Not “Clearly Err” by Overruling Porter’s Objection to
the State’s Strikes.

¶30 I do not disagree with the majority that the circumstances
surrounding the strikes and the State’s explanation for striking Prospective
Juror 2 are troubling. The State’s alleged concerns about Prospective Juror
2’s ability to be impartial because of her brother’s conviction for aggravated
assault cannot be readily discerned from the transcript of the jury selection.
I also believe, in line with the majority, that we should not blind ourselves
to the result of the State’s strikes in this case, which was to ensure that the
jury seated to decide the criminal charges against Porter, an
African-American, did not contain a single African-American juror.

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STATE v. PORTER
McMurdie, J., dissenting

Consequently, I share the majority’s misgivings with the State’s explanation
for striking Prospective Juror 2.

¶31 However, the operative question before us in this case under
the traditional Batson analysis—which, as the majority acknowledges, supra
¶ 15, remains unaltered in Arizona—is whether the superior court clearly
erred by failing to find the striking party was “motivated in substantial part
by discriminatory intent.” Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019);
see also State v. Medina, 232 Ariz. 391, 404, ¶ 43 (2013). From the beginning,
the Batson court recognized the trial court’s unique role in deciding this
question and the deference that must be accorded to its findings as a result.
See Batson, 476 U.S. at 98, n.21 (“Since the trial judge’s findings in the context
under consideration here largely will turn on evaluation of credibility, a
reviewing court ordinarily should give those findings great deference.”). In
the years following Batson, both the United States Supreme Court and our
supreme court have continuously reaffirmed this principle. See, e.g., Flowers,
139 S. Ct. at 2244 (“The Court has described the appellate standard of
review of the trial court’s factual determinations in a Batson hearing as
‘highly deferential.’” (quoting Snyder, 552 U.S. at 479)); Hernandez v. New
York, 500 U.S. 352, 369 (1991) (“In Batson, we explained that the trial court’s
decision on the ultimate question of discriminatory intent represents a
finding of fact of the sort accorded great deference on appeal . . . .”); State v.
Escalante-Orozco, 241 Ariz. 254, 272, ¶ 36 (2017) (“[W]e defer to the trial
court’s assessment of the prosecutor’s credibility in explaining his strikes.”),
abrogated in part on other grounds by State v. Escalante, 245 Ariz. 135, 140,
¶¶ 15–16 (2018); State v. Newell, 212 Ariz. 389, 401, ¶ 54 (2006) (“[T]he trial
court’s finding at this step is due much deference.”).

¶32 Of course, the deferential standard of review we usually
apply to the superior court’s findings does not obviate its duty to
meaningfully evaluate the striking party’s proffered explanations for each
strike. Indeed, it makes that obligation more pressing. Flowers, 139 S. Ct. at
2243 (“In criminal trials, trial judges possess the primary responsibility to
enforce Batson and prevent racial discrimination from seeping into the jury
selection process.”). Thus, when the superior court’s findings are
unsupported by the record so that we are left with a “definite and firm
conviction that a mistake has been committed,” Hernandez, 500 U.S. at 370
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)), or where
the court abandons its responsibilities under Batson, this court must not
hesitate to act. Such situations present the types of “exceptional
circumstances” that override the deference we would generally afford a
superior court’s ruling. Snyder, 552 U.S. at 477 (quoting Hernandez, 500 U.S.
at 366).

13

STATE v. PORTER
McMurdie, J., dissenting

¶33 But no such exceptional circumstances exist in this case. In my
view, the superior court here did exactly as was required under Arizona’s
current Batson jurisprudence; it considered the State’s explanations and
Porter’s arguments, found one of the State’s proffered reasons for striking
Prospective Juror 2 credible—and, in fact, reasonable—and concluded
Porter had not met her burden of showing the State was motivated by
discriminatory intent. Striking jurors whose perspectives might be
influenced by the experiences of their family members has been recognized
as an accepted and permissible trial strategy. See, e.g., Medina, 232 Ariz. at
404–05, ¶¶ 47–50 (upholding strike in part based on the similarity between
mental-health conditions of juror’s husband and defendant); State v. Hardy, 230 Ariz. 281, 286, ¶¶ 13–15 (2012) (juror struck because brother’s drug
addiction might make her sympathetic to mitigating evidence of the
defendant’s familial drug abuse); State v. Reyes, 163 Ariz. 488, 491 (App.
1989) (struck because juror’s sister’s conviction for one of the same charges
raised against the defendant); see also Miller-El v. Cockrell, 537 U.S. 322, 339
(2003) (“Credibility can be measured by, among other factors . . . whether
the proffered rationale has some basis in accepted trial strategy.”).

¶34 The fact that the superior court did not expressly credit the
State’s second proffered reason for striking Prospective Juror 2 is of no
consequence. The superior court is “presumed to know the law and apply
it in making [its] decisions,” State v. Lee, 189 Ariz. 608, 616 (1997) (quoting
Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring
v. Arizona, 536 U.S. 584, 609 (2002)), including its obligation to consider “all
of the circumstances that bear upon the issue of racial animosity,” Foster v.
Chatman, 136 S. Ct. 1737, 1748 (2016) (quoting Snyder, 552 U.S. at 479). By
finding the State did not engage in purposeful discrimination by striking
Prospective Juror 2, the court necessarily accepted the State’s asserted
perception of Prospective Juror 2’s uncertainty about whether she would be
influenced by her brother’s conviction and found no other circumstance of
discriminatory intent. To upset the court’s conclusion based solely on our
interpretation of statements within a cold transcript would be an unjustified
invasion of the superior court’s “pivotal role” in evaluating Batson
challenges. State v. Urrea, 244 Ariz. 443, 447, ¶ 16 (2018) (quoting Snyder, 552
U.S. at 477); see also Hernandez, 500 U.S. at 365 (“As with the state of mind
of a juror, evaluation of the prosecutor’s state of mind based on demeanor
and credibility lies ‘peculiarly within a trial judge’s province.’” (quoting
Wainwright v. Witt, 469 U.S. 412, 428 (1985))).

¶35 Accordingly, under Arizona’s current Batson jurisprudence, I
do not believe we can say the superior court took an impermissible view of
the evidence in reaching its conclusion that the State did not engage in

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STATE v. PORTER
McMurdie, J., dissenting

purposeful racial discrimination by striking Prospective Juror 2. Hernandez,
500 U.S. at 369 (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” (quoting
Anderson v. Bessemer, 470 U.S. 564, 574 (1985))). I would, therefore, affirm
the judgment, including the superior court’s ruling on Porter’s Batson
challenges.4

B. Snyder v. Louisiana Does Not Require Trial Courts to Make
Express Findings Crediting Demeanor-Based Explanations While
Reviewing a Batson Challenge, and Arizona Courts Have Never
Interpreted It as Holding So.

¶36 The majority holds the United States Supreme Court’s
decision in Snyder requires us to remand the case to the superior court for
it to expressly find whether it believed the State’s demeanor-based
explanation for striking Prospective Juror 2—that she seemed uncertain
when she denied that her brother’s conviction would affect her as a juror.
As I noted above, I see little ambiguity in the superior court’s ruling. The
court explicitly stated that it found no purposeful discrimination as to the
State’s strike of Prospective Juror 2. Our different readings of the superior

4 Although not discussed by the majority, I briefly address Porter’s
arguments on appeal with respect to the State’s strikes of both Prospective
Jurors 2 and 20. Porter contends the depth of the prosecution’s questioning
regarding the prospective jurors’ prior jury service and comparisons
between the nonminority jurors similarly situated to Prospective Juror 2
reveals the State’s explanations for striking Prospective Jurors 2 and 20
were pretextual. See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (approving
comparative-juror and depth-of-questioning analysis). But it was
unnecessary for the State to follow up with any potential juror about prior
jury service because the standard jury-selection questions provided all the
information needed to form a legitimate basis to strike Prospective Juror
20—specifically, that she had served as a foreperson on a prior acquitting
jury. State v. Trostle, 191 Ariz. 4, 12 (1997) (“participation on a prior
acquitting jury” can be a valid, race-neutral reason for striking potential
juror). Porter also did not raise a comparative-juror analysis issue regarding
Prospective Juror 2 with the superior court, and our supreme court has
specifically warned appellate courts from engaging in “a retrospective
comparison of jurors based on a cold appellate record . . . when alleged
similarities were not raised at trial.” Medina, 232 Ariz. at 404-05, ¶ 48
(quoting Snyder, 552 U.S. at 483). Thus, these arguments do not alter my
conclusion.

15

STATE v. PORTER
McMurdie, J., dissenting

court’s ruling aside, the majority and I part ways on a more significant
ground here: its interpretation of Snyder.5

¶37 In Snyder, the Court found that it could not “presume that the
trial judge credited the prosecutor’s assertion” concerning a juror’s
nervousness because the trial court upheld the strikes without explanation
and that the prosecutor’s second proffered reason failed to survive scrutiny
“even under the high deferential standard of review that is applicable
here.” Snyder, 552 U.S. at 479. Because the prosecutor’s pretextual second
explanation gave rise to an inference of discriminatory intent, and because
there was nothing in the record “showing that the trial judge credited the
claim that [the juror] was nervous,” the Court concluded the prosecutor had
engaged in purposeful racial discrimination and reversed. Id. at 485–86.
Nothing in the Court’s decision purported to require a trial judge to make
express findings crediting demeanor-based explanations whenever they
are raised. The Court only held that it would not ignore a pretextual
explanation in favor of a demeanor-based explanation when the trial
judge’s ruling did not make it clear which explanation it found credible. See
id. One wonders why the Court would have engaged in an exhaustive
analysis of the second reason proffered by the prosecutor if the trial judge’s

5 It must be noted that before a court adopts such a sweeping new rule,
it would be better to do so in a case where the argument concerning it has
actually been raised at trial and on appeal. Porter did not request that the
superior court make specific findings regarding the demeanor-based
explanation offered by the State and made no argument in that court or this
court that the superior court erred by failing to do so. Absent fundamental
error, a party in a criminal matter waives any argument not raised below or
on appeal. See State v. Bible, 175 Ariz. 549, 572 (1993) (“Absent fundamental
error, a party usually cannot raise error on appeal unless a proper objection
was made at trial.”); State v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9 (2004)
(“Failure to argue a claim [on appeal] usually constitutes abandonment and
waiver of that claim.” (quoting State v. Carver, 160 Ariz. 167, 175 (1989)).
Waiver principles apply to our review of Batson challenges. See State v.
Garza, 215 Ariz. 56, 65, ¶ 31 (2007) (defendant waives Batson challenges by
failing to object at trial); Medina, 232 Ariz. at 404–05, ¶ 48 (defendant waives
a comparative-juror argument by not raising it at trial). It is troubling that
the majority sua sponte raises an issue and resolves it without any discussion
whether the error they have found is fundamental. State v. Escalante, 245
Ariz. at 142, ¶ 21.

16

STATE v. PORTER
McMurdie, J., dissenting

failure to credit the demeanor-based reason alone expressly was enough to
justify relief. See id. at 479–85.

¶38 The Supreme Court itself has since confirmed that it did not
intend Snyder to establish a definitive rule regarding the findings a trial
judge must make when reviewing a demeanor-based explanation. Thaler v.
Haynes, 559 U.S. 43, 47–49 (2010) (per curiam). In Haynes, the Court rejected
the argument that Snyder established such a rule, explaining that “in light
of the particular circumstances of the case, we held that the peremptory
challenge could not be sustained on the demeanor-based ground, which
might not have figured in the trial judge’s unexplained ruling.” Id. at 49
(citing Snyder, 552 U.S. at 479–86). The Court also noted that Snyder’s
discussion of the trial judge’s ruling in that case “[did] not suggest that, in
the absence of a personal recollection of the juror’s demeanor, the judge
could not have accepted the prosecutor’s explanation.” Id.

¶39 Most federal circuits to consider this issue in the wake of
Snyder and Haynes have held that Snyder did not establish a rule requiring
express findings concerning demeanor-based explanations. See, e.g.,
Sifuentes v. Brazelton, 825 F.3d 506, 530 (9th Cir. 2016) (citing Haynes and
finding no unreasonable determination of facts where trial court failed to
credit demeanor-based explanation); United States v. Thompson, 735 F.3d
291, 300–01 (5th Cir. 2013); United States v. Moore, 651 F.3d 30, 42 (D.C. Cir.
2011), aff’d in part on other grounds sub nom. Smith v. United States, 568 U.S.
106 (2013); Smulls v. Roper, 535 F.3d 853, 860–61 (8th Cir. 2008) (en banc). But
see United States v. Rutledge, 648 F.3d 555, 559–62 (7th Cir. 2011) (explaining
Seventh Circuit’s interpretation of Snyder and distinguishing Haynes on the
basis that it was “restricted by the standards of review appropriate in habeas
corpus proceedings”). Several states’ supreme courts have also found that
Snyder did not create such a rule. See, e.g., People v. Beauvais, 393 P.3d 509,
521 (Colo. 2017) (“We agree with the courts that confine Snyder to its facts.”);
State v. Jacobs, 32 So. 3d 227, 235 (La. 2010) (“Applying the rule of Thaler v.
Haynes to this case, the trial court’s failure to comment on the prosecutor’s
demeanor-based reason does not mean the peremptory challenge should
automatically be rejected.”); Davis v. State, 76 So. 3d 659, 663–64 (Miss. 2011)
(upholding strike when the only reason offered was demeanor-based even
without a specific finding of credibility because the court “must have
credited” it by denying the Batson challenge).

¶40 Likewise, no court in Arizona has held that Snyder mandates
express findings by the superior court, regardless of whether the proffered
explanation at issue is based on demeanor. A search for Arizona appellate
decisions referencing Snyder returns 37 results. Of these 37 cases, not one

17

STATE v. PORTER
McMurdie, J., dissenting

interprets Snyder as creating an express findings requirement. Indeed, some
explicitly reject that argument. See, e.g., State v. Ybarra, 2 CA-CR 2017-0286,
2019 WL 2233299, at *6, ¶ 25 (App. May 22, 2019) (mem. decision) (“Neither
[Foster v. Chatman nor Snyder] require[] a court to make explicit findings as
to intent, demeanor, or credibility in the third step.”); State v. Palafox, 2
CA-CR 2012-0101, 2013 WL 709624, at *4, ¶ 17 (App. Feb. 26, 2013) (mem.
decision) (citing Haynes, 559 U.S. at 47–48) (“And we can rely upon the
court’s independent evaluation of jurors’ demeanors when it assesses a
prosecutor’s stated justifications on such grounds, even absent specific
findings on the record.”).

¶41 Moreover, in a recent case, our supreme court found no clear
error in a superior court’s finding of no purposeful discrimination, even
though one of the State’s proffered explanations was demeanor-based and
the superior court specifically found it could not verify the juror’s alleged
demeanor. Escalante-Orozco, 241 Ariz. at 272, ¶¶ 36–37. And contrary to the
majority’s assertion, supra ¶¶ 19–20, our supreme court has also continued
to find no clear error in the superior court’s finding of no purposeful
discrimination at the third step of the Batson framework, even when that
finding is only implicit. See State v. Lynch, 238 Ariz. 84, 104, ¶ 70 (2015) (“The
trial court found that the State’s proffered reasons for the strikes were race
neutral, implicitly ruling that Lynch did not carry his burden of proving
purposeful racial discrimination.”), rev’d on other grounds, 136 S. Ct. 1818
(2016). In sum, the great weight of authority, both within Arizona and
outside of it, establishes that Snyder does not require the rule the majority
imposes here.

¶42 This is not to say that Arizona may not adopt a requirement
that the superior court must make an express finding regarding a
demeanor-based explanation when it is raised. Johnson v. California, 545 U.S.
162, 168 (2005) (States “have flexibility in formulating appropriate
procedures to comply with Batson”). But in my view, such a rule does little
to ensure that Batson is meaningfully enforced. The problems surrounding
Batson are not solved by heaping technical requirements upon the superior
court. That does little more than create a trap for superior court judges that,
once triggered, might require a remand even in situations where it is clear
from the record that no discrimination occurred. And in the face of clearly
established precedent declining to impose such a requirement on the
superior court, the decision to adopt such a rule must be left to our supreme
court. See State v. Smyers, 207 Ariz. 314, 318, ¶ 15, n.4 (2004) (“The courts of
this state are bound by the decisions of [the Arizona Supreme Court] and
do not have the authority to modify or disregard [its] rulings.”); State v.
Gentry, 247 Ariz. 381, 385, ¶ 13 (App. 2019) (request to adopt Washington’s

18

STATE v. PORTER
McMurdie, J., dissenting

Batson framework rejected in the face of “well-established Arizona legal
precedent”).

¶43 Accordingly, because the majority’s interpretation of Snyder
is incorrect, creates a rule that falls within the province of our supreme
court, and goes outside the scope of this appeal, its holding cannot stand.

C. Although the Superior Court’s Ruling Should Be Affirmed, Our
Supreme Court Should Consider Whether Arizona’s Batson
Framework Should be Altered to Increase Its Effectiveness.

¶44 At its core, I believe what the majority truly takes issue with
in this case is not the superior court’s findings, but Batson itself. I share their
frustration. From its inception, Batson’s framework has been criticized as a
well-intentioned but ultimately ineffective means of ending the
discriminatory use of peremptory strikes. See, e.g., Batson, 476 U.S. at 102–03
(Marshall, J., concurring) (“The decision today will not end the racial
discrimination that peremptories inject into the jury-selection process.”);
Miller-El v. Dretke, 545 U.S. 231, 270 (2005) (Breyer, J., concurring) (“[T]he
use of race- and gender-based stereotypes in the jury-selection process
seems better and more systematized than ever before.”); State v. Saintcalle,
309 P.3d 326, 334 (Wash. 2013) (“Twenty-six years later it is evident that
Batson . . . is failing us.”).6 Several states’ supreme courts have also recently
called for studies to examine the Batson framework’s ability to guard
against impermissible discrimination in jury selection. See State v. Holmes,
221 A.3d 407, 436–37 (Conn. 2019) (announcing the creation of a jury
selection task force to study and propose solutions to the jury selection
process in Connecticut); Supreme Court Announces Jury Selection Work Group,

6 The Batson framework has also been heavily criticized by legal
scholars. See, e.g., Jonathan Abel, Batson’s Appellate Appeal and Trial
Tribulations, 118 Colum. L. Rev. 713, 717–23 (2018) (collecting scholarly
critiques of Batson); Antony Page, Batson’s Blind-Spot: Unconscious
Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 156 (2005)
(asserting Batson’s framework is “woefully ill-suited to address the problem
of race and gender discrimination in jury selection” in part because of its
inability to address the impact of “unconscious bias on jury selection”);
Ronald F. Wright et al., The Jury Sunshine Project: Jury Selection Data as a
Political Issue, 2018 U. Ill. L. Rev. 1407, 1417–18, 1426–27 (2018) (describing
past jury-selection studies and, after an empirical study of jury selection in
1306 felony trials held in North Carolina in 2011, concluding race still plays
a significant role in the removal of jurors in that state).

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STATE v. PORTER
McMurdie, J., dissenting

California Courts Newsroom, https://newsroom.courts.ca.gov/news/
supreme-court-announces-jury-selection-work-group (last visited Mar. 25,
2020). Despite this persistent criticism and the widespread desire for more
effective measures, the traditional Batson framework remains the primary
tool by which state courts resolve challenges to allegedly discriminatory
peremptory strikes, including in Arizona. See, e.g., Escalante-Orozco, 241
Ariz. at 267, ¶¶ 13–14; Medina, 232 Ariz. at 404–05, ¶¶ 48–50.

¶45 Batson was not intended to preclude efforts by states to
provide more robust bulwarks against discrimination during the
jury-selection process. Johnson, 545 U.S. at 168. The Court has long said that
states have “wide discretion, subject to the minimum requirements of the
Fourteenth Amendment, to experiment with solutions to difficult problems
of policy.” Smith v. Robbins, 528 U.S. 259, 273 (2000). In line with this
principle, several state courts have attempted to correct the deficiencies of
Batson by modifying or outright eliminating components of the Batson
framework. See, e.g., People v. Gutierrez, 395 P.3d 186, 201–02 (Cal. 2017)
(reaffirming requirement that comparative-juror analysis be conducted,
where the record permits, even if raised for the first time on appeal); State
v. Edwards, 102 A.3d 52, 67, n.16 (Conn. 2014) (eliminating Batson’s prima
facie case of discrimination requirement); Truehill v. State, 211 So. 3d 930, 942
(Fla. 2017) (same); Conner v. State, 327 P.3d 503, 509 (Nev. 2014) (charging
trial courts with thoroughly reviewing Batson challenge and creating an
inclusive record). However, no state has engaged in more intense efforts to
reform and strengthen the Batson framework than Washington.

¶46 In 2013, the Washington Supreme Court held that the
continued impact of race in Washington’s jury-selection process required it
to strengthen Batson’s existing protections and “to begin the task of
formulating a new, functional method to prevent racial bias in jury
selection.” Saintcalle, 309 P.3d at 338–39. This call to action led the court to
adopt Washington General Rule 37 in April 2018, which aims to “eliminate
the unfair exclusion of potential jurors based on race or ethnicity.” Wash.
Gen. R. 37.7 Later that same year, in State v. Jefferson, 429 P.3d 467, 480

7 Rule 37 attempts to accomplish this goal in several ways. First, it
removes the requirement that the challenging party prove purposeful
discrimination. Instead, the court must determine only whether “an
objective observer could view race or ethnicity as [a] factor in the use of the
peremptory challenge.” Wash. Gen. R. 37(e). It also provides a list of
circumstances the court should consider when evaluating a strike under
this test. Wash. Gen. R. 37(g). Second, the rule lists several presumptively

20

STATE v. PORTER
McMurdie, J., dissenting

(Wash. 2018), the court took the extra step of declaring that the proper
question at the third step of Washington’s Batson framework “is not
whether the proponent of the peremptory is acting out of purposeful
discrimination,” but whether “an objective observer could view race and
ethnicity as a factor in the use of the peremptory challenge.” Unlike the
original third step of Batson, Washington’s “objective observer” standard
permits de novo review of the trial court’s findings and conclusions. Id.
These developments have already gained recognition, although not yet
adoption, in other states’ courts. See, e.g., People v. Bryant, 253 Cal. Rptr. 3d
289, 310 (Ct. App. 2019) (Humes, P.J., concurring) (citing the objective
observer test with approval in advocating for reform to California’s Batson
framework); State v. Veal, 930 N.W.2d 319, 361–62 (Iowa 2019) (Appel, J.,
concurring in part and dissenting in part) (advocating, in line with
Washington’s reforms, for “a revision of [Iowa’s] approach when the last
African-American is removed from the jury with a peremptory strike”);
Tennyson v. State, ___ S.W.3d ___, 2018 WL 6332331, at *6, n.6, *7 (Tex. Dec.
5, 2018) (Alcala, J., dissenting from refusal for discretionary review) (“[I]t is
time for courts to enact alternatives to the current Batson scheme to better
effectuate its underlying purpose.”).

¶47 Arizona has continued to apply the Batson framework with
little reevaluation or alteration. I believe the time has come for us to discuss
reformulating our structure to meaningfully further Batson’s purpose, but
such a review cannot be accomplished in an appeal. See Holmes, 221 A.3d at
407, 434 (finding it necessary to “uphold under existing law the trial court’s
finding that the prosecutor had not acted with purposeful discrimination in
exercising a peremptory challenge,” but also to take the opportunity to
convene a working group to “study the problem and resolve it via the
state’s rule-making process”). A rule change petition was recently
submitted advocating for our supreme court to adopt a new procedural rule
governing jury selection modeled after Washington General Rule 37.
Central Arizona National Lawyers Guild, R-20-009 Petition to Amend the
Rules of the Supreme Court by Adopting a New Rule: Rule 24 – Jury Selection,
https://www.azcourts.gov/Rules-Forum/aft/1081 (last visited Mar. 25,
2020). Indeed, the rule-making process may be the ideal forum to engage in
this much-needed discussion. See Holmes, 221 A.3d at 436–37, 437, n.25

invalid reasons for exercising a peremptory strike, such as “having prior
contact with law enforcement officers” or “living in a high-crime
neighborhood.” Wash. Gen. R. 37(h). Finally, it requires that any party
intending to strike a juror due to demeanor, attitude, or behavior must
“provide reasonable notice to the court and the other parties so the behavior
can be verified and addressed in a timely manner.” Wash. Gen. R. 37(i).

21

STATE v. PORTER
McMurdie, J., dissenting

(concerning Batson reform, a rule-making process is “better suited to
consider the array of relevant studies and data in this area, along with the
interests of the stakeholders”). But whatever path reform of the Batson
framework takes within Arizona, I find merit in the state of Washington’s
“objective observer” test.

¶48 Under Washington’s reformulation of Batson’s third stage, the
superior court could protect the integrity of the jury-selection process from
both purposeful and unconscious discrimination. In turn, appellate courts
would benefit from the ability to engage in meaningful review of the
superior court’s decision under a de novo standard of review. The lingering
menace of racial discrimination within our justice system requires nothing
less. And the need for such a test is particularly pressing where, as in this
case, the State strikes every potential juror of a criminal defendant’s racial
group and nearly removes every other minority juror. However, I do not
believe this court has the authority to announce such a radical change to
our state’s implementation of the Batson framework; that is a task left to our
supreme court. I respectfully implore the court to take up that task.

CONCLUSION

¶49 Until our supreme court changes our approach to Batson
issues, we must apply the law that exists—the majority did not do that in
this case. On this issue, I dissent.

AMY M. WOOD • Clerk of the Court
FILED: AA

22