The opinion
CORRIGAN, J., Concurring.
I concur in the affirmance of the judgment, but express caution regarding the jury selection discussion.
The majority assumes, without deciding, that Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ], compels a comparative analysis of the cold record on review of a Wheeler/Batson challenge. (Maj. opn., ante, at p. 312.) I agree that such an assumption is prudent here. I write separately to voice concern that a cold-record review is a particularly questionable method for achieving the important goal that jury selection be untainted by group bias.
There are a great many legitimate factors that an advocate may properly consider in the exercise of peremptory challenges. Many of these are subtle nuances, including attitude, tone of voice, facial expression, and the like. These nuances are seldom captured by the written record. Further, an advocate may be willing to accept a juror who shares some characteristics with an excused juror because of other life experiences or views that make the accepted juror less problematic from the advocate’s perspective.
*340 Jury selection is, and should be, a highly individualized process. Juror by juror consideration encourages just the opposite of group bias.
Baxter, J., and Chin, J., concurred.
Appellant’s petition for a rehearing was denied March 21, 2007.