F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D A R R Y L D A R M O N T S H I R

L E Y , Petitioner-Appellant

,

v.

J A M E S A. Y A T E S , W arden; A T T O R N E Y G E N E R A L O F T H E S T A T E
O F C A L I F O R

N I A , Respondents-Appellees

. No. 13-16273

D.C. No. 2:07-cv-01800- AK

AMENDED OPI NI O N

A ppeal from the United States District Court for the Eastern District of California Alex Koz inski, Circuit J udg e, Presiding

Arg ued and Submitted November 20, 2014—San F rancisco, California

F iled November 20, 2015 Amended March 21, 2016

B efore: Sidney

R. Thomas, Chief J udg e, and Stephen Reinhardt and Morg a

n Christen, Circuit J udg es.

Opinion by

J udg e ReinhardtS H I R L E Y V

. Y A T E S 2

SUMMARY *

Habeas Corpus

The panel reversed the district court’s denial of r elief on California state prisoner Darry l Shirley ’ s claim under Batson

v. Kentucky in his habeas corpus p e t i t ion challeng ing his conviction for first-degree burg lary of an unoccupied residence and second-degree robbery of a sandwich shop, a nd

r e m anded with instructions to g rant the writ unless the s t a t e elects to retry

Shirley within a reasonable amount of time.

The panel held t h a t because the California Court o f Appeal acted contrary to clearly e s t a b l i shed law when it based its B atson Step One p rima facie analy sis on a discredited standard, it was appropriate f o r the district court to determine de novo whether Shirley had raised an inference of racia l b ias. The panel ag reed with the district court that

c o n t r ary to the state c ourt’s c o nclusion, Shirley did raise a n inference o f discrimination sufficient to me e t h i s burden at Step One.

Addressing the narrow set of cases in w hich the prosecutor cannot r e member the reason why he struck veniremembers, the p anel held that if the prosecutor testifies both to his g eneral jury selection app r oach and that he is confident one of these race-neutral preferences was the actual

reason for the strike, this is sufficient circumstantial evidence
to satisfy the state’s burden of pr o d u c t ion at B atson Step Two. The panel held that this e vidence a lone w ill seldom be

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S H I R L E Y V

. Y A T E S 3

enoug h at Step Three to overcome a prima facie case o f racial discrimination unless the p rosecut o r has a r eg ular practice of striking veniremembers who possess an o bject i v e characteristic that may

be clearly

defined.

T he panel held that the district court incorrectly found
t h a t t h e prosecutor had not met the state’s b urden o f production at St e p T w o , but that the d istrict court clearly erred in d eny ing Shirley ’s c laim at Step Three on the basis o f

a juror comparison and its view that the r eason the p rosecutor proffered could have been a g ood reason for str i k i ng black venireperson R.O. The panel o bserved that the d istrict judg e did not determine whether the prosecutor had offe r ed

c i r cumstantial evidence sufficient to support the inferen c e that he actually struck R.O. for the reason proffered. The panel wrote that in a c ase in which the prosecutor d o e s n o t recall h i s a c tual reason for striking the jury in q uestion, a prosecutor’s stated vag ue approach to jury selection provides little or no probative support f or a conclusion at Ste p Three that h e struck her for the reason he p r o f f e r e d

. The panel
wrote that a comparative juror analy s i s d o es not support the state’s claims in this case. The panel therefore concluded that Shirley ’s evidence was sufficient to carry his burden o f showing by a preponderance of the evidence that the strike o f R.O. was motivated in substantial part by race.S H I R L E Y V

. Y A T E S 4

COUNSEL

J ennifer M. Sheetz (arg ued), Mill Valley

, California, for Petitioner-Appellant.

B arton B owers (arg

u e d ), Deputy A ttorney General; Kamala D. Harris, Attorney General of California; Dane R

. Gillette, Chief Assistant Attorney General; Michael P. F arrell, Senior Assistant Attorney General; Mi ch ael A. Canz oneri, S u p e r v i s i n g D e p u t y A t t o r n e y G e n e r a l

, S a c rame n t o , California, for Respondents-Appellees.

OP INION

REI NHARDT, Circuit J udg e:

I. Introduction

Darry l Shirley was convicted o f the first-deg ree burg lary of an u noccupied residence and the second-degree robbery o f

a s a ndwich shop ( he took $ 80 from the cash reg ister). I n neither instan c e w a s any one harmed, and no weapons were invol v e d in e ither offense. Shirley w as sentenced to two consecutive 25-y ear s-to-life terms in prison for the burg lary and robbery

, and also four consecutive five-y ear sen t e nce enhancements based on prior convictions.

On habeas, Shirl ey p r o perly raised a number of claims. B ecause we reverse the district court’s d enial of relief on his claim under Batson v. Kentucky

, 476 U.S. 79 (1986), we need not reach his other claims.S H I R L E Y V

. Y A T E S 5

II. The Batson F r am e work

Batson sets o ut a three-step burden-shiftin g framework for evaluati n g claims of discriminatory peremptory strikes. At Ste p O ne, the defendant bears the burden to “produc[ e]

e v i d e nce sufficient to permit the trial judg e to draw an inference that discrimination has occ u rred.” Johnson v

. California

, 545 U.S. 162, 1 7 0 ( 2005). Once the defendant makes out a p rima facie case, at Step Two “the burden shifts
to the State to ex plain a dequately the racial ex c l u s ion b y offering permis s i b le race-neutral justifications for the strikes.” Id. at 1 6 8 (internal quotation marks omitted). Fi nally

, at Step Three, “[ i] f a race-neutral ex planation is tendered, th e trial court must then decide

. . . whether the opponent of the strike h a s proved purposeful racial discrimination.” Id. (internal quotation marks omitted)

.

III. P rocedural History

1. State Trial Court

At Shirley ’s trial, a 60-person venire was empaneled a nd

sworn. Of that number, f ive veniremem b e r s w ere black. (Shirley

, too, is black.) Of those five, al l but o ne were removed f

rom the venire – the remaining one, w ho was among the twelve orig inally summoned to the box

, was seated on the jury

. F irst, J

. H. was dismissed by the court for

ca u se, due to illness. Nex t, L .L

. was peremptorily struck b y the state. Then, K.A. was dismissed for cause o n the parties’ joint motion, because she had a brother with a criminal record and sa i d that she would have trouble sitting in judg ment o f another person. F inally

, t h e state used another p e remptoryS H I R L E Y V

. Y A T E S 6

strike to dismiss R.O. 1 After this strike, Shirley made a Batson motion, claiming that the p e r e m p t ory strikes of L .L

. and R.O. w ere ra cially d iscriminatory

. The motion was denied, with the trial judg e stating that Shirley h ad f ailed to make out a prima facie case:

[ L .L .] had a misd emeanor conviction in her backg round, related to fraud, which may have reflected, and in fact, d id reflect on her moral turpitude.

[ R.O.] ostensibly appeared to be an acceptable juror. Sh e wa s y oung , althoug h she did

ex p ress an interest in being on the panel.

B u t e x cept f

o r [ R.O.] ’s possibl e improper

ex c usal, I don’t see any pattern o f ex ercise o f improper peremptory challeng es b y the People.

So I find there is n o p rima faci e ca s e o r demonstration of a

n improper ex e rcise o f

ex c usal of peremptory c halleng es ag ainst African Americans, e sp e c ially in lig ht of the fact that we have o ne orig inal juror, [ ]
, still on the jury

, or at least po t en t i a l jury

, who is o ne

1 T h e p ro s ecu to r w as af

f ord ed 2 0 p erem

p to ry strik es, o f

w h ich h e u s ed

o n ly 1 0

. B y th e tim e Sh irley m ad e h i s Ba tso n m otio n , th e p ro secu to r h ad

ex ercised n in e strik es , t o d i sm iss L .L
., R.O., an d sev en o th er

v en irem em

b ers (w h o se race is n o t ap p aren t f ro m th e reco rd

, bu t w h o se d ism issals w ere n o t ch allen g ed ). T h e p ro secu to r su b seq u en tly u sed on e ad d itio n al strik e.S H I R L E Y V

. Y A T E S 7

of the o rig inal 1 2 who w ere summoned in the jury box

, who is still present.

2. State Court of

Appeal

The California Court of A ppeal a ffirmed the trial court’s Batson ruling

, rely ing on People v. Box
, 23 Cal. 4t h 1 1 5 3
, 1188 ( 2000). S

ee People v. S

hirley

, 2007 W L 1302512 at *4 (Cal. Ct. A p p

. May 4, 2007). The Court of Appeal quoted Box stating t h a t “when the record ‘sug g ests g rounds upon which the prosecutor mig h t r easonably have c halleng ed the jurors in question, we affirm.’” I t conclu d e d that there were two race-neutral reasons for dismissing L .L .: the prior misdemeanor c o n viction f or fraud, and her possible familiarity w ith the defendant and one of his relatives. I t also concluded that R.O.’s “ag e and corr e s p o n d ing lack of life

ex p erience” was a leg itimate race-neutral reason f or striking her. The state court added that any inference of discrimination with respect to the strike of R.O. was u ndermined by the fact that three y oung white veniremembers who “demonstrated a lack of life ex perience” were also struc k

. “[ T] he record also sh o w s , ” the court noted, “that the individuals who were selected to sit o n the jury were r easonably intellig ent and h ad

a g ood d eal of work an d/or life ex perience.” The state court observed that while another veniremember – one who was seated, as J u ror Number 3 – “was a senior at ‘Sac State’ w ho lived with his parents, h e also worked as the manag e r of a g y m, a position t hat involves decision making .” F inally

, it speculated th at the prosecutor mig ht have been seeking a “strateg ically balanced” jury

, such that “one y oung j u ro r on the panel was sufficient.” The state court’s reasons were not based on any representations made by the prosecutor but were inferred by the court from its ex amination of the ju rors’ qualifications as contained in the record.S H I R L E Y V

. Y A T E S 8

3. District Court

Shirley filed a federal habeas petition. The district court

co n c l uded that the state court had acted contrary to clearly established Supreme Court precedent by finding

, on the basis of specula t ion about possible race-neutral reasons for

ex e r cising the ch a l l e n g ed strikes, that Shirley failed to raise

an inference of discrimination and thereby make o u t a prima face c ase. Shirley v. Y

ates , 2013 W L 394713 at *2 (E.D. Cal. J an. 30, 2013). O n de novo review, th e d i s t rict court

co n c l u d ed that Shirley had satisfied Batson Step One b y showing that two out of three elig ible black v e n i re members

were perempt o r ily struck and that the second, R.O., was similar to a white veniremember who was seated. B ecause the
state court “prematurely cut off the Batson inquiry at Step [ One] ,” the district c ourt conducted a hearing to take evidence
reg arding the prosecutor’s reasons f o r ex ercising the challeng ed strikes.

A. Evidentiary Hearing

At the evidentiary hearing

, the court heard testimony from the deputy district attorney who p r osecute d Shirley eig ht
y ears earlier, Alan V an Stralen. Van Stralen testified that he had a “g eneral approach t o jury selection,” which w as “well entrenched” prior to Shirley ’s trial, Van Stralen’s fifty -fourth. Van Stralen was asked to describe his “criteria f or identify ing desirable or undesirable jurors:”

Thing s that I wo u l d l i ke to see in a prospective juror would include intellig ence, I g uess, first of a ll. An d I w ould determine that throug h h o w the person presents themselves in court, the manner in which theyS H I R L E Y V

. Y A T E S 9

speak, the t y

p e of employ

ment they ’ve held. A colleg e education is definitely a plus as far as that g oes.

I like to see jurors w h o h ave life ex perience. That’s quite important t o me. And I
, in that
reg ard, would look at thing s such as – well, a
person basic ally w ho has been around, d o ne

some thing s, who’s been i n different situations, met different people.

I n that r eg ard I
, ag a in, w o u ld put some sig nificance on a colleg e education because that does g et a person out into the world a nd

new env i r onments and meeting new people

a n d e n c o u n t e r i n g n e w s i t u a t i o n s a n d introduces them to analy

tical thinking

.

I also woul d look to and place a lot o f

e mphasis on a person’s employ ment. I f a p e r s o n has employ

ment – first of all I like t o have people who a

r e employ ed and h a v e a g ood track record of employ men t

. B ut in particular what I like to see is p e o p l e who have jobs that would involve a sig n i f i cant

amoun t of responsibility or a sig nificant amount of decision-making

.

I also like jurors who, to the ex tent I can ascertain this, would appe ar to h a ve a personality that would mesh with other
p eople, somebody who would g et along wi t h other people since for a su c cessful prosecution I ’m looking for 12 people to be a ble to ag ree.S H I R L E Y V

. Y A T E S 10

So I l ike to g et people o n my jury who a re likely to be able to ge t a l o n g with others a nd do well in the deliberation process.

Actually

, I a l so look kind of overall [ –] has this person led a responsible life. A nd, y ou know, I mig ht, a g ain, look to the t y pe o f employ ment they ’ve had, wh a t their family history is, were they raised in a family

, do they have a n y run-ins themselves with the law. That would not be a favorable aspect a s far as I ’m concerned.

And o n a similar note, if somebody h a d a favorable – particularly favora ble attitude towards law enforcement, that would be a plus for me because a person lik e t hat, I believe, would trust the sy stem enough t h a t if the evidence was there to p rove g uilt, they would not hesitate to vote for g

uilt.

B e cause he listed primarily positive factors, Van Stralen

w a s asked to elaborate on the one “ potentially neg a t i v e ” f a c t or he had mentioned. He ex plained that he c onsider e d crimes committed “well i n t o s o m e b o d y ’ s adulthood,” or those involving “dishonesty ,” such as theft, perjury

, or fraud, to be “deal breaker[ s] .” Asked whether there were “other neg ative qualifications”; he said, “[ p ] robably just t h e o pposite o f the thing s that I just went throug h a s far as what I would look for in a juror.” 2

2 T h e f u ll q u estio n to Van Stralen w as: “ A n d b esid es th e crim i n al h isto ry

o f a p ro sp ectiv e j u r o r , are th ere o th er n eg ativ e q u alif icatio n s o r d eal b reak ers th at y o u m ig h t seek to av o id in a j u ro r? ” Van Stralen ’ s an sw er,S H I R L E Y V

. Y A T E S 11

Van Stralen went o n to ex plain that h e had “a practice o f making contemporaneous notes when se l e c ting a jury ” on “small y e l low Post-its.” He stated, however, that he “[ d id]
not retain those notes,” sug g e sting that “[ o] ther p eople mig ht be better at taking notes than I am,” and ex plaining that he did not “find

. . . a lot of time to write d own detailed notes during jury selection,” but rather “jot[ ted] do w n j u s t brief little co m m ents or words

. . . a shorthand.” “ I don’t believe those notes would b e useful to me y ears down the road,” Van Stralen testified. 3

A l thoug h Van Stralen did recall the facts of Shirley ’s
case, and did recall p icking a jury

, he did n o t r e ca ll the reasons he ex ercised his strikes. I n a ddition, he did not keep the notes he made d

u ring voir dire, and the prosecution’s case file “was no long er available”

– “[ i] t had possibly been destroy e d . . . after a period of time.”

h o w e v e r, ap p ears to describ e o n ly n eg ativ e q u alif icatio n s

 ̄ n o t d eal b reak ers. He d iscu ssed “ t h in g s I’ d lik e to av oid ,” n o tin g th ey w ere m o stly j u st th e ab sen ce o f th in g s h e w ou ld lo o k f o r in an id eal j u ro r, f

o r ex am p le,

“ s o m eb o d y [w

h o ] d id n ’ t a p p e a r t o b e p articu larly in tellig en t , [o r]

so m eb od y [w

h o ] d id n ’ t h av e a lo t o f lif e ex p erien ce.” By co n t

ra st, in
resp on s e to a q u estio n m o m e n ts later, h e t estif ied th at a v en irem em

ber h av in g co m

m itted a “ d ish o n esty ” crim e o r a cr i m e w ell in to ad u lth o o d

w as a “ d eal b rea k e r ” i n t ha t h e w o u ld n ot accep t th at p erso n o n th e j u ry

u n d er an y circu m stan ce.

3 He also stated th at h e d id n o t

– an d w as n o t allo w ed to

– retain j u ro r q u estio n n aires.S H I R L E Y V

. Y A T E S 12

B a sed o n h is review of the voir d ire transcript, 4 Van Stralen t e s t ified that he struck L .L

. for three reasons. F irst, because L .L

. stated that Shirley looked familiar to h er, it was possible that she “mig ht hav e a b i a s in favor of [ him] ,” o r “mig ht be a bit more reluctant than a person who didn’t know

or didn’t find the d efendant familiar to convict b ec a u s e she mig ht believe that she w ould see him around ag ain.” Second, L .L

. had recently met – a n d was considering conducting business with – a man who may h ave been related to Shirley

. Third, L .L

. had been convicted of a crime as an adult, which “would lead [Van Stralen] to b e lieve she hasn ’ t l e d a s resp o n sible a life as [ he] would hope f or [ h is] prospective jurors.” 5

4 On cro ss- ex am in atio n , Van Stralen rev ealed th at h e h ad also rev iew ed th e state co u rt d ecisio n an d t h e d istrict co u rt o rd er f

in d in g th e s tate co u rt’ s Step On e d eterm in atio n to b e u n reaso n ab l e an d o r d e rin g a Step T w o h earin g

. T h e d istrict c o u rt f o u n d h is t estim o n y at th at h earin g to b e

“ en tirely cred ib le

. . . v ery p ro f essio n al

. . . [an d ] v ery f

o rth rig h t ,” an d w e d ef er to t h at d eterm in atio n b ecau se it i s n o t clearly erro n eo u s. Fed

. R. Civ

. P

. 5 2 (a)(6 ). Ho w ev er, Van Stralen articu lated h is p u rp o rted reaso n s f or strik in g L .L

. an d R.O. in term s

– literally

– t h at are rem ark ab ly sim i l ar to th o se prev io u sly h y

p o th esized

, w ith o u t th e b en ef it o f h is testim o n y , b y th e state co u rt an d d i scu ssed in th e d istrict co u rt o rd er. Bo th th e state co u rt

an d Van Stralen said th at R.O. h ad to o little “ lif e ex p erien ce,” an d

em p h asized th at w

h i le h er j o b

– d ev elo pin g p h o to g rap h s at a d ru g sto re

– ap p aren t ly d id n o t in v o lv e “ d ecisio n m a k i n g ,” th e y ou n g w h i te

v en irem em

b er’ s j o b – m an ag in g a g y m – d id

.

5 Un til co u n sel f

o r th e s tate ref

resh ed h is reco llectio n in th e m id st o f h is testim o n y , Van Stralen co u l d n o t recall f o r su re w h eth er h e h ad q u estio n ed L .L

. ab o u t h er co n v ictio n

. He “ d id n ot see th at in [h is ] r e v i ew o f th e tran scrip t ” u n til h e w as d irected to th e relev an t pag es o f th e t ran scrip t: “ I d id q u estio n h er. A n d th at w as actu ally k i n d o f w h at I w as t

ry in g to relate

a m o m en t ag o

. I th in k I m ay h av e q u estio n ed h er, b u t I d o n ’ t k n o w th at I d id

. A n d t

h e tran scrip t d o esn ’t r e fl e ct th at I ask ed h er th e n atu re of th e

co n v ictio n .”S H I R L E Y V

. Y A T E S 13

As for R.O., Van Stralen indicated that he struck h er

“ simply because she lacked life ex perience”: she was “ ve r y y oung

. . . three y ears out of h ig h school,” and worked at a W a lg r eens pharmacy dev eloping photog raphs. “She h ad not g one o ff to colleg e. Appa rently she’s living and working in the same area she g rew up in.” Van Stralen ex plained that he “think[ s] people who lack that kind of life ex perience don’t make particularly g ood jurors. They d on’t have a perspective upon which to make sound decisions.”

W h en asked, for purposes of a comparative juror analy sis, about a white veni r e m e m ber of a p prox imately the same ag e he allowed to be s e a t e d

, Van Stralen told the court that the veniremember – J u r or Number 3 – was d esirable because he

was “g o ing to colleg e[ ,] [which] shows some initiative [ and]

a certain deg ree of intellig ence g enerally speaking. ” J uror Number 3 was also a manag e r at a g y mnastics facility

, which showed Van Stralen that he h ad “sig nificant responsi b i l i ties

. . . and w ould be involved in decision

- m aking .” “[ H] e h ad something g oing for him

. . . [ and] did ha v e l i f e e x perience

. . . [ and] a perspective that I think w o u ld be valuable as a juror.” Van Stralen also noted that h e “put some consideration

on the fact that” J uror Number 3 h ad a “favorable view of law enforcement,” reflected by the fact that he twice called the police to report vandalism or bur glaries at the elementary school across the street from h is house, and that his sister a nd brother-in-law were employ ed by police departments.

Van Stralen said that he had a “very
, very hig h deg ree o f confidence” that the reasons he g ave in his testimon y a t the hearing w ere his actual reasons for ex ercising t h e c ontested strikes at trial. Critic a l l y , however, he was asked on direct “whether the reasons y ou dismissed th e two jurors

. . . were based on a s p e c i f

ic memory y ou have or rather wereS H I R L E Y V

. Y A T E S 14

consistent with a standard practice y ou had in jury selection or something else? ” Van Stralen responded:

[ B ] est way I can answer is after reviewing the transcript, knowing how I a p p roach jury selection, knowing tha t I have done so in the

same fashion for many , many y ears, including during this period of time, I can s a y ag ain, without reservation

, that those were my

reasons because those are reasons that I would dismiss a juror in similar circumstances in any

case.

W h en he reiterated the same on cross, he was asked:

Q. B e cause that’s y our g eneral p ractice, y our g eneral approach?

A. Yes.

Q. And n ot because y o u remember [ R.O.] o r [ L .L .] ?

A. Correct. I

don’t remember . . . .

During a brief o r al arg ument followi n g Van Stralen’s testimony

, Shirley ’s counsel a rg ued that Van Stralen “may have had g ood reasons as he stated, but the real reasons are at the heart of this inquiry . And I don’t think we can find those because h e has n o recollection of the actual real reasons.” Counsel for the s tate disputed the leg a l – but not the f actual

– assertion, stating that “the evidence before this court is that keeping these two disputed jurors would have been inconsistent with the g uidelin e s that Mr. Van StralenS H I R L E Y V

. Y A T E S 15

described as c omprising his g e n e r al a p p r oach to selecting a juror. I t would have b een inconsistent, and that is evidence,

c i r c u m s t a n tial evidence, of nondiscriminatio n

. ” I n c o n d u c t i n g t his evidentiary hearing

, the district court satisfied i t s oblig ation under Step Two of B atson

.

B. Ruling

After the evidentiary hearing

, the district cou r t ruled orally

. F irst, the district c o u rt d etermined th a t the testimony offered by Van Stralen was not sufficient to satisfy the state’s burden of production a t Batson S t ep T wo. I n so doing

, the district court a

nswered a question left open i n P a u lino v

. Harrison (

Paulino II

), 542 F .3d 6 92, 701 n.10 (9th Cir. 2008), and at the center of this c a se: “whether a list o f standard considerations, abs e nt affirmative evidence that they

were used in the p articular case in quest i o n , is competent evidence of a prosecutor’s actual reasons for striking certain jurors.” The district c ourt concluded “that y ou h ave to have actual evidence of actual reasons,” and t h at a court cannot “infer it from practices and apply it to a particular case.”

Proceeding o n to B ats o n Step T hree, the district judg e observed:

[ R] eg ardless of that f

inding the court h as to g o

on and make a

n actual determination whether there was racism involved.

S o y ou’ve then g ot the p resumption that’s created by the prima facie case. You have

. . . no evidence one way or the o t her, as I consi d er i t to be evidence, on [ S] tep 2. AndS H I R L E Y V

. Y A T E S 16

the q

uestion i s , based o n that, can I infer discrimination.

[ I ] t is clear that the b urden stay s on the person . . . wishing to challeng e the strike . . . .

As to Shirley ’s prima facie case, the district court drew a distin c t i on between the number of minority veniremembers

s truck in Paulino II – there, five out of six str i k e s we r e challeng ed as discriminatory

– and the number at issue in Shirley ’s case (only two). The district judg e then w ent on to consider whether the reasons the prosecutor g ave for striking L .L

. “ma[ de] sense” to him. He c o n cluded that h er removal from the venire “just strikes me as e ntirely reasonable”; “even putting aside the misdemeanor conviction for what appears to be some sort of dishonesty -related offense,” he said, “I think

a prosecutor w ould b e very likely to s t r i k e somebody ” w ho mig ht have recog niz ed the defendant a nd mig ht be doing business with a relative of his. He con t i n u ed: “ And even without the witness’s ex planation, once I put it tog ether in my mind, it just seems plausible. A nd, y ou know, that’s w hat he said, and it makes sense.”

The strike of R.O. was, by contrast, “ very close.” 6 Rather than assessing whether Van Stralen’s stated reason held u p

– whether it w as the actual reason R.O. was struck – the district judg e compared her r e sponses to J uror Number 3 and drew a distinction between them:

6 T h e d istrict j u d g e called it “ v ery clo se” f ou r tim es in less th an o n e p ag e

o f h earin g tran sc rip t, an d n o ted th at “ th e Co u rt o f A p p eals m i g h t w ell d isag ree w ith

m e.”S H I R L E Y V

. Y A T E S 17

She did not, in fact, g o to c olleg e so that disting uishes her from the other juror who
was g o ing to Sacramento State. So they were about the same a ge, but she was obviously less educated. I can sort of see prosecut o rs wanting somebody who has g ot a n education.

On the basis of his conclusion that R.O.’s lack of hig her education could have been a g ood reason to strike h er , the district judg e denied relief.

IV. Analysis

1. Batson Step One

I n Johnson v. California , 545 U.S. 1 62, 166–67, 169–73 (2005), the Supreme Court held that the California Supreme Court had been wrong to require Batson claimants to show a “strong likelihood” of d iscrimination a t Step One; r ather, Johnson reiterated that a defendant mak es out a prima facie

case if h e produces evidence suff icient to support a “reasonable inference” of discrimination.

As the district court c o rrectly concluded, t h e California Court of Appeal acted contrary to clearly established law when it “based its prima f

a c ie analy sis o n the discredited, preJohnson

, standard articulat e d b y the California Supreme Court in People v

. Box

. . . .” The state court held that “when the ‘reco r d sug g ests g rounds upon w hich the p rosecutor mig ht reasonably have challeng ed the jurors in question, we affirm’” the tria l judg e ’s r u ling that the defendant failed to make out a prima facie case. B ased on just such speculation, it found that Shirley had not met his burden at Batson Step One.S H I R L E Y V

. Y A T E S 18

W e have made clear, however, that Box imposes too hig h

a burden, a

nd that state court decisions apply ing it do not warrant deference under AEDPA, because they are “ contrary to

. . . c learly established F e d eral law.” 28 U .S.C. § 2254(d)(1). S

ee Johnson v. Finn
, 665 F .3d 1063, 1 069 (9th Cir. 2011) (“[ T] he ex istence of ‘g rounds up on which a prosecutor could reasonably h ave premised a challeng e,’ does
not suffice to defeat an inference of racial bias at the first step of the Batson framework.”). Hence, it w as appropriate f or the district c ourt to determine de novo whether Shirley had raised an inference of racial bias. Id. at 1069–70.

W e likewise ag ree with the district court that, contrary to the state court’s c onclusion, Shirley did raise a n inference o f discrimination more than sufficien t t o meet his “minimal” burden at Batson Step One. I d

. a t 1071. The fact that a prosecutor peremptorily strikes all or most veniremembers o f the defendant’s race

– as was the case h e re – is often sufficient on its o wn to make a prima facie case at Step One. See Paulino v. Castro (

Paulino I ), 371 F .3d 1083, 1091 (9th Cir. 2004) (“[ A] defendant can make a p r i m a f a c ie showing based on statistical disparities alone.”). I n this c ase, twothirds o f the black veniremembers not removed for cause

were struck b y the prosecutor. W e have found an inference o f discriminati o n in cases where smaller percentag es of minority veniremembers were peremptorily struck. Fernandez v

. Roe
, 2 86 F .3d 1073, 1078 ( 9th Cir. 2002) (56%); Turn e r v. Marshall ( Turner I

), 63 F .3d 807, 812 (9th Cir. 1995) (56%), overruled on other g

rounds by Tolbert v. Page
, 182 F .3d 677,S H I R L E Y V

. Y A T E S 19

685 (9th Cir. 1999) (en banc) ; accord United States v

. Alvarado

, 923 F

. 2d 253, 255 (2d Cir. 1991) (57%). 7

That o ne black juror was ev e n t ually seated does weig h
ag ainst an inference of discrimination, but “only nominally ”

so. M ontiel v. City of L

. A

. , 2 F .3d 335, 340 (9th Cir. 1993). “I n deny ing a Ba t

son motion,

. . . a trial court may not rely solely on the fact that some African-Americans remain on the jury .” Turner I

, 63 F .3d a t 811–14 ( finding a p rima facie case

o f discrimination despite the presence of four black jur o r s ). I n Fernandez

, we observed that “the lone Hispanic juror’s
presence on the jury here is less helpful

. . . in lig ht of the trial judg e’s ex plicit warning to the prosecutor that any additional challeng es ag a inst H ispa n i c s would trig g er a prima facie finding of d iscrimination.” 286 F .3d at 1079. The same log ic applies to the case b efore us: the trial judg e denied Shirley ’s Batson motion, made after two of the thre e r e m a ining black veniremembers had been struck, “in lig ht of the fact that we have one orig inal [ black] juror, [ ]
, still on the jury

, or at least potential jury

. . . .” The trial judg e fo und n o prima facie showing “ at this time of a pattern ” 8 of discriminatory strikes.

7 T h e d en o m in ato rs in th es e cases

– th at i s, th e to t al n u m b ers of

m in o rities in th e v en ires

– w ere larg er th an th ree. W ad e v. Terh u n e , 2 0 2 F.3 d 11 9 0
, 1 1 9 8 (9 th C ir. 2 0 0 0 ), d o es su g g est, qu ite lo g ically

, t h at larg er d en o m in ato rs w ill lead to stro n g er in f eren c e s o f discrim in atio n , an d

cau tio n s t h at w h en a Ba tso n ch allen g e is m ad e af ter th e f i r s t m in o rity to b e called in to th e j u ry b ox i s p erem p to rily stru ck b u

t w e l l b ef

o re j u ry selectio n co n clu d es, it w ou ld b e erro n eo u s to f in d th at a p rima fa cie case h ad b een m ad e m erely b ecau se a t th e time o f th e ch a llen g e th e p ro secu to r h ad stru ck 1 0 0 % o f m i n o rity v en irem em bers. In co n trast to W

a d e , Sh irley h as ch a llen g ed b oth o f th e b lack v en irem em b ers Van Stralen stru ck

, n o t

o n ly o n e of th em

. A d d itio n ally

, in Sh irley ’ s case, p erem pto ry strik es w ere

u sed at a d isp ro p ortio n ate rate ag ain st b lack v en irem em

b ers.

8 Em ph asis ad d ed

.S H I R L E Y V

. Y A T E S 20

W h ile this oral ruling w as slig htly more s u b tle than the warning in Fernandez

, its obvious effect was to p ut Van Stralen on notice: i f he struck the remaining black veniremember, he w ould b e required to g ive reasons for a l l three strikes.

Add i t i o n ally

, Shirley ’s prima facie case is supported b y

a comparison 9 between one of the b lack veniremembers w ho

was struck, R.O., and a white v e n iremember who was seated, J uror Numb er 3. B oth were in their early twenties and lived
at home w ith their parents. Th e r e was no readily apparent

re a s o n t o strike R.O. – as the district court noted, she “said

s h e was eag er to be a juror and would f ollow the l a w faithfully [ and] also indicated that she had ex perience making ‘toug h calls.’” W hile J uror Number 3 had a ttended but h ad
not (y et) g raduated from colleg e, and h ad a job that may have involved somewhat more responsibility

, th e y were c ertainly similar enoug h – apart from race – to help su p p o r t an inference of discrimination at B a tson Step One. 1 0

9 B e c a u s e Ba tso n req u ires u s to co n sid er t h e relev an t circu m stan ces

su rro u n d in g a ch allen g e d p erem p to ry strik e, 4 7 6 U.S. at 9 6

– 9 7
, co m p a r a t i ve j u

ro r an aly s is is “ called f

o r o n ap p eal ev en w

h en th e t rial

co u rt ru led th at t

h e d ef en d an t f ailed t o m ak e a p rim a f

acie sh o w in g at th e f irst step o f th e Ba tso n an aly sis.” Bo yd v. Newla n d

, 4 6 7 F.3 d 1 1 3 9
, 1 1 4 9 (9 th Cir. 2 0 0 4 ); see a lso Critten d en v. Ayers (

Critten d en I)

, 6 2 4 F.3 d 9 4 3
, 9 5 6 (9 t h C i r

. 2 0 1 0 ) (co n clu d in g th at th e d ef en dan t m ad e a prima f

a cie sh o w in g at Ba tso n Step On e b as e d i n part o n a co m p arativ e j u ro r

an aly sis).

10 A lth o u g h V an Stralen ’ s asserted race- n eu tral reaso n s f o r strik in g R.O. (i.e., h is test im on y at Step T w o) w o u ld in f o rm a co m

p arativ e j u ro r

an aly sis at Step T h ree, b y sp ecif y in g th at h e co n sid ered relev an t p articu lar d istin ct i o n s b etw een R.O. an d J u ro r Nu m b er 3
, th e d istin ctio n s are irrelev an t at th e (p reced en t) Step O n e. S ee Fern a n d

ez , 2 8 6 F.3 d at 1 0 7 9 (“ [W ]e sh o u ld n o t ev en co n sid er th e pro secu to r’ s u n su b stan tiatedS H I R L E Y V

. Y A T E S 21

W e ag ree with the district court that Shi rley ’s Step One showing was “ sufficient to p ermit the trial judg e to draw an inference that discrimination

. . . occurred.” Johnson

, 545 U.S. at 170.

2. Batson Step Tw o

J ust a s i n P aulino I

I
, in Shirley ’s case the state court applied the w rong leg al framework and e rroneously ended its analy sis after Step One; it never r eached Steps Two a nd Three of Shirley ’s Batson c l a i m

. As a result, the p rosecutor

was not afforded the opportunity to p r ovide his actual reasons for striking the veniremembers in q u estion, and there c ould be

no reasoning or conclusion as to this critic al question to which we could defer under AEDPA. P a ulino II
, 543 F

. 3d at 698–99 n.5; see also Turner v. Marshall ( Turner II ), 121 F .3d 1248, 1254 n.2 ( 9th Cir. 1997) (same). He n c e, the decision we review here is that of the district c ourt, which conducted the inquiry

that must be held at Step Two of Batson

.

The district court properly o rdered an evidentiary h earing
to take testimony from Van Stral e n a s t o his reasons for the

ex p lan atio n s a t t h e stag e o f d eterm i n in g w h eth er a p rima fa cie case

ex ists.”).

Strik in g ly

, t

h e trial co u rt itself

ap pears to h av e reco g n ized as m u ch

, as it d escrib ed th e strik e o f R.O. as “ p o s sib l[y ] im p ro p er.” It f

ailed to f in d

a p rima f a cie case o f dis c r i m i n atio n , h o w ev er, b ecau se it erro n eo u sly b eliev ed th at Sh irley w as req u ired to sh o w a “ p at t e rn of ex ercise of im p ro p er p erem

p to ry ch allen g es

. . . .” Cf. Fern a n d ez , 28 6 F.3 d at 1 0 7 8 (“ A p attern of ex clu s io n ary strik es is n o t n ecessary f o r f in d in g an in f eren ce of discrim in atio n

. S ee U n ited S ta tes v. Va sq u ez-Lo p ez , 2 2 F.3 d 9 0 0
, 9 0 2 (9 th Cir. 1 9 9 4 ) (‘ [T ]h e Co n stitu tio n f o rb id s strik in g ev en a sin g le
p ro sp ectiv e j u ro r f

o r a d i scrim in ato ry

p u rp ose.’ )”).S H I R L E Y V

. Y A T E S 22

strikes of L

. L

. a

nd R.O. B ecause this e vidence – necessary to adjudicate Steps Two and Three of Shirley ’s Batson claim

–
was absent from the state court record d u e not to any lack o f dilig ence on Shirley ’s part b ut rather to the state court’s error, 28 U.S.C. § 2254(e)(2) did not bar an evidentiary hearing

. See W illiams v. Taylor

, 529 U.S. 420, 432 (2000). The bar to evidentiary hearing s e stablished by Cullen v. Pinholster

, 563 U.S. 1 7 0 (2011), was also inapplicable because the state court’s decision is not entitled to d eference under 28 U .S.C. § 2254(d)(1). F

inn , 665 F .3d at 1069 n.1.

“[ S] tep Two is a

n opportunity for the p rosecution to

ex p lain the real reason for [ its] actions.” Y ee v. Duncan
, 463 F .3d 893, 899 (9th Cir. 2006). As we e x plained in Crittenden

v. Ayers ( Crittenden I)

, 624 F .3d 943, 957–58 (9th Cir. 2 010):

I n the usual c ase, the Batson analy sis takes place during or shortly

after jury selection. I n t h o s e c a s e s , t h e p r o s e c u t o r o ff e r s a contemporaneous ex p lanation for the strike at step two. W here time has passed since the jury selection, the p r o secutor may offer an

ex p lanation based o n his p r esent recollection of his reasons for striking the juror. W here, a s here, time has passe d and the prosecutor no long er has a present recollection of his or her

reasons f o r striking the juror, the state may of f e r an ex planation based on circumstantial evidence.

W h at counts as competent circumstantial evidence of the prosecutor’s r easons for ex e rcising peremptory strikes is an open question: “Our circuit has n ot addressed whether a list of standard considerations, abse nt affirmative evidence thatS H I R L E Y V

. Y A T E S 23

they were used in the particular case in question, is competent evidence of a prosecutor’s actual reasons for striking certain j u r ors.” P aulino II

, 542 F .3d at 701–02 n.10. B ecause t h i s question straddles the f

a i r ly muddy line between Batson ’s Steps Two and T hree, we address it in two parts. F irs t , w e

c o n s i d er whether such evidence is sufficient to meet the state’s burden of production at Batson Step Two. 1 1 I n the nex t sectio n , we address a distinct question: how much w eig ht such evidence should be g iven i n a s sessing whether the defendant h as carried his burden of persuasion at Step T h ree.

At Step Two, the state must both (1) assert that specific,

r a c e-neutral reasons were the actual reasons for t h e challeng ed strikes, and (2) offer s o m e evidence which, if credible, would support the c onclu s ion that those reasons

were the actual reasons for the strikes. 1 2 I d. at 699 (“

Batson ’s step two requires evidence of the prosecutor’s actual reasons for ex ercising her peremptory challeng es.”).

This is a burden of production, not persuasion. I n P u rkett

v. E lem

, the Supreme Court made clear that the state’s raceneutral r eason need not be “ persuasive, or even plausible,” in

11 “ A t Ba tso n ’ s seco n d step , th e q u estio n w h eth er th e state h as o f

f ered

a race- n eu tral reaso n is a q u estio n o f l aw th at w e rev iew d e n o v o .” Pa u lin o II

, 5 43 F.3 d at 69 9 (citatio n an d in tern al q u o tatio n m ark s

o m itted ).

12 W h i le a b ald assertio n b y th e state i s i n a d e q u a t e , an assertio n by a p ro secu to r th at h e rememb e r s s trik in g a v en irem em

ber f or a p articu lar

reaso n is su f

f icien t to m eet th e b u rd en o f p ro d u ctio n at Step T w o , b ecau s e th e p ro s e c u t o r ’s m em o ry

- b ased testim o n y is d i rect ev id en ce w h ich

, if b eliev ed

, su

pp o rts a f in d in g th at h e actu ally ex ercised th e s t r i k e f or th e

reaso n articu lated

. W h at t h e state m u st in an y ev en t p ro d u ce at Step T w o is so m e ev id en ce reg ard in g th e actu al reaso n s f o r th e p ro secu to r’ s actio n d u rin g v o i r d ire, circu m stan tial o r o th erw ise.S H I R L E Y V

. Y A T E S 24

o r d e r to suffice at this stag e. 514 U.S. 765, 767 ( 1995) ( p e r curiam). Thus, whether the evidence in support of the reason is credible or even w hether it “makes sense” is to be determined at Step Three. Id. at 7 68–69; see also Crittenden I
, 624 F .3d at 958 (“[ R] eg ardl e ss of how the state offers its race-neutral justification, it is not the task of the district court at step two to assess the truth of the ex planation.”).

I n this respect, it is n ecessary to bear in mind that the state must offer s o m e evidence of “a r eason that does not deny equal protection.” Purkett

, 5 14 U.S. at 769. I n J ohnson

, the Supreme Court affirmed that for the purposes of Batson
, “[ i] t does not mat t e r t h a t the p rosecutor mig ht have had g ood

reasons

. . . ; what matters is the real reason [ the veniremembers] were st ri ck en.” 545 U.S. at 172 (quoting Pa u l i n o I
, 371 F .3d a t 1090 (alterations omitted)). An equal protection v iolation has occurred if a b lack veniremember

was a ctually struck for a r ace-related reason, even if he could have been struck for a race-neutral reason. Hen c e , t he state must offer e vidence at Step Two which i s probative of the actual reason that a prosecutor ex ercised the s t r ike at issue. Evidence that a good reason for a strike ex isted is insufficient in itself at Step Two.

Our cases r eflect that voir dire transcripts may be relevant
to the Step T wo inquiry in three d ifferent way s. 1 3 F irst, a voir dire transcript (l i k e contemporaneous notes) may b e used to refresh a prosecutor’s recollection; upon reviewing it, he may recall the actual reasons for his strikes. This sort of r efreshed

13 Of co u rse, ev en

in th e o rd in ary

case in w h ich a p ro secu to r g iv es h is

n o n

- d iscrim in ato ry reaso n s co n t em p o ran eo u sly , o r rem em

b ers th em at a later h earin g , th e tran scrip t f ro m v oir d ire is v i rtu ally alw ay s im p o rtan t to th e Step T h ree d eterm in atio n

.S H I R L E Y V

. Y A T E S 25

recollection is clearly sufficient f or the purposes of Step Two. See, e.g.
, Turner II

, 121 F .3d at 1251. Second, as in the case before us, a prosecutor may review a voir dire transcript a nd
st i l l remain unable to remember his reasons for striking the particular veniremembers at issue. He may then infer reasons from the transcript and assert them, b ut that a ssertion must be supported by circumstantial e vidence that tends to show that the asserted reasons were in fact the actu al reasons for the strikes. S u c h circumstantial evidence may consist of the prosecutor’s jury se l ec t i o n notes or, a s is the case here, his ty pical or usual practices or approach to jury se l e c t i o n. 1 4 Third, a s in Paulino II
, a prosecutor may o ffer “mere speculation drawn from her reading of the voir d i r e transcript.” 1 5 542 F

. 3d 696. Su c h reasons have not been “‘recon s tructed,’ as that term is used in Batson cases; they [ have been] c onstructed out of whole cloth

. . . [ and are]

n o t h ing more than g uess[ es]

. . . .” Id. at 700. As we he l d

,

“ [ n] o a uthority supports the State’s claim that pure speculation qualifies as circumstantial ev i d ence o f the prosecutor’s actual reasons, simply b ecause it was the prosecutor herself who offered the specu l a tion during the

course o f a

n evidentiary hearing

. ” I

d

. at 701. Althoug h the

14 It is also p ossib l e th at a tran scrip t itself co u ld co n tain circu m stan tial

ev id en ce of th e actu al rea s o n s fo r perem p to ry strik es. Fo r ex am

p le, a p r o s ecu t o r m i g h t h av e stated

, o n th e reco rd at t rial, a reaso n f

or strik i ng

a p articu lar v en irem em

b er, su ch as in th e co n tex t o f an u n su ccessf u l strik e f o r cau se. A s w e ack

n o w l ed g ed in Pa u lin o II

, 54 2 F.3 d a t 7 0 0 n .8
, it is also co n c e i v a b l e th at a p ro secu to r’ s q u estio n s at v o ir d ire m ig h t b e so sh arp ly f o cu sed o n a p articu lar issu e th at th e tran scrip t co u ld o f f er stro n g

su p p o rt f o r th e co n clu sio n th at t

h is w as th e actu al b asis f

o r a strik e. In th is case, h o w ev er, th e v o ir d ire tran scrip t is n o t so illu m in atin g

.

1 5 T h e p ro secu to r t estif

ied th at sh e w as “ o n th e sam e p ag e” as th e j u dg e

an d th e def

en se atto rn ey

– “ all each co u ld d o w as co m m en t o n th e tran scrip t .” 5 4 2 F.3 d at 6 9 6.S H I R L E Y V

. Y A T E S 26

sort o f speculation contained in the third categ ory is insufficient to meet the state’s burden of producti on at Step Two, the court mu s t i n a ny e v e n t proceed to Step T h ree, because the “failure to provide an ex planation for ex ercising

a strike does not relieve the trial court o f its r esponsibility [ at step three] to make the u l t i m a t e determination of whether there has been purposeful discrimination.” Paulino I I
, 542 F .3d at 702 (quoting Y

ee , 4 6 3 F .3d a t 901). However, when the state f

ails to meet its Step Two b urden of pr o d u c t i on, “there is no race-neutral evidence to weig h,” and the defendant will prevail at Step Three of his Batson challeng e in almost all such cases. Paulino II , 542 F .3d at 703.

W e hold t h a t in the case before us the circumstantial evidence falls in the second of the three categ ories d iscussed above, and tha t t h e s t ate has met its burden of production at Batson Step Two. W here the prosecutor who made the strike has no memory (refreshed or otherwise) of his reasons for doing so, but asserts on the basis of his re v i e w of the transcript that a race-neutral reason was in fact the reason for the strike, and then supports that assertion with his testimony that his g eneral jury selection approach would have motivated him to strike the veniremember for that r eason, such circumstantial evid e nce is sufficient for the limited purpose

o f S t e p T wo. Van Stralen’s testimony that h e employ ed a certain jury selection approach, and that employ ment of that approach would have motivated the strikes he e x e r c i s ed at Shirley ’s trial, is relevant (to whatever deg ree) to the question whether his asserted reasons for striking L .L . and R.O. were his actual reasons for doing s o

. 1 6 The inferential link

16 A n o t h er categ o ry o f circu m stan tial ev id en ce n o t av ailab le in th is case

– co n tem p o ran eo u s n otes

– m ay p ro v id e f ar stro n g er ev id en ce th at an asserted reaso n i n f

act m o tiv ated t

h e strik e o f a lo n g

- sin ce- f o rg o ttenS H I R L E Y V

. Y A T E S 27

resulting from ev i d e n c e of a particular practice or approach
may be fairly strong or vanishing ly weak; still, its streng th o r weakness is a question for Step Three, see Purkett

, 514 U.S.
at 7 67–69; Crittenden I

, 624 F .3d at 958, at which Step the
answer may prove dispositive of the ultimate inquiry

.

There a re some limits to this proposition, however. I n Paulino II – which falls in the third categ ory outlined above

– the state c laimed that the prosecutor had “testified a s to her ‘g eneral principles’ o f jury selection” 1 7 ; but, we concluded that because she admitted that s h e “ w as not sure which o f thos e general principles she considered in selecting the [ ] jury ,” her “statement that she g enerally soug ht fair jurors but did not really know what she considered in t his particular trial” a mounted to “ nothing more than a g eneral assertion that her actions were not racially motivated.” 1 8 Id. The p rosecutor

v en irem em

b er. No tes m ad e d u rin g j u ry selectio n ref lect t h e pro secu to r’ s

s t ate o f m i n d at th e tim e. A l th ou g h w e m ay rely o n h is later test i m o n y (in clu d in g an

y d iscu ssio n of h is g en eral j u r y s e l e ctio n ap p ro ach ) as an in terp reti v e a i d

, th e n o tes are l ik ely to rev eal actu al co n cern s th e p ro secu to r h ad at trial. P ro secu to rs w h o d o n o t retain n o tes f

ro m v o ir d ire

ru n th e risk t

h at, as h ere, th ey w ill n o t b e ab l e to p ro d u ce c i r c um s tan tial

ev id en ce o f

th eir actu al reaso n s f

o r ex ercisin g a strik e.

17 T h e pro secu t o r i n Pa u lin o II d i d testif y th at s h e “ g en erally

. . . lik e[d ] j u ro rs w h o h av e so m e g o o d lif

e ex p erien ce” as w ell as “ o ld er j u ro rs” an d

“ peo p le w

h o w ou ld b e, o f co u rse, f air to all s id es.” 5 4 2 F.3 d at 7 0 1

. Ho w ev er, sh e, u n lik e Van Stral e n , d id n o t assert a b elief t h at th ese

co n sid eratio n s m o tiv ated h er s trik es, bu t rath er “ o f f ered h y p o th etical racen eu tral reaso n s ” w it h o u t s tatin g th at h er j u ry selectio n ap p ro ach w as resp on s ib le f

o r h er d ecisio n t o ex ercise th e strik es o f s p ecif ic

v en irem em

b ers. Id

. at 6 9 6.

18 J u st as p ro t e s t a t i o n s o f co lo rb lin d n ess are n o t sp ecif ic en o u g h to b e cred ited as j u stif

icatio n f or p erem p to ry strik es, Ba tso n , 4 7 6 U.S. at 9 8 &

n .2 0
, testim o n

y as to a g en eral ap p ro ach o f selecti n g j u r o r s w ith o u tS H I R L E Y V

. Y A T E S 28

supported her g uesswork w ith inferences a ny one mig ht (or mig ht not) draw from the voir d ire transcript, but, in failing
t o relate her particular considerations to the strikes s h e

ex e r cised, offered no e viden ce – direct or circumstantial

– t hat would lend support to an inference that the speculat i v e reasons were her actual reasons. 1 9

Our holding is consistent with our analy sis in Crittenden I

. W e h eld there that the di s t r i c t court had not erred in accepting evidence of the prosecutor’s g eneral approach at Step Two. 624 F .3d at 952–53, 958. However, Crittenden I did not settle the question left open in Paulino II
, b e cause the prosecutor also offered contemporaneous notes that strong ly

s u p p o rted the contention that the asserted reasons were t h e actual reasons. Id.

atten tio n to race w o u ld certain ly b e i n ad eq u ate to m eet th e state’ s b u rd en at Step T w o

.

1 9 In Pa u lin o II

, w e cited w ith ap p ro v al th e Elev en t h Circu it’ s d ecisio n in Bu i v. Ha ley , 3 2 1 F.3 d 1 3 0 4 (1 1 t h Cir. 2 0 0 3 ). Pa ulin o II

, 5 4 2 F.3 d at 7 0 0

– 0 1

. Bu i i n

v o lv ed testim o n y f

ro m an assistan

t p r o s e c u to r w

h o h ad

o b s e rv ed j u ry selectio n at trial b u t h ad n o t co n f

erred

– eith er

co n tem p o ran eo u sly o r af

ter th e f act

– w i th th e lead p ro secu to r w h o

co n d u cted it ab o u t h is r e a s o ns f o r ex ercisin g th e strik es. 3 2 1 F.3 d at 1 3 1 0

– 1 1

. B ased o n h er rev iew o f th e v o i r d i re tran scrip t an d h er o w n

n o tes f ro m t r i a l

, th e assistan

t p ro secu to r of

f ered “ rep resen tatio n s an d
arg u m en t” as to th e reaso n s f o r all b u t o n e o f th e ch allen g ed strik es. Id

. at 1 3 1 5

. T h e co u rt h eld

, h o w ev er, th at alth o u g h th e assistan t p ro secu to r h ad asserted sp ecif

ic reaso n s, h er ev id en ce w as n o t p ro b ativ e o f “ t h e reaso n s [th e lead p ro secu to r] h ad in m in d w h en h e m a d e th e strik es.” Id

. B y

co n trast, Van Stralen ’ s testim o n y reg ard in g h i s g en eral ap p ro ach

, w h ich h e say s h e ap p l ied a t t r i a l, i s p ro b ativ e (h o w stro n g ly rem ain s to b e d eterm in ed ) o f

h is state o f

m in d at trial.S H I R L E Y V

. Y A T E S 29

I n sum, Van Stralen’s testimo n y was sufficient to meet the state’s burden of production at Step Two because he credibly testified to a jury selection approach – persuasive o r unpersuasive, reasonable or unreasonable, plausible o r implausible, see P urkett

, 514 U.S. at 767 – that supported his asserted r e asons for h is challeng ed strikes. Nothing more was required at this stag e of the proceeding

.

3. Batson Step Three

At Step Three, we hold that the district judg e clearly erred i n deny ing Shirley ’s Batson claim w ith respect to R. O

. larg e ly on the basis of a c omparative juror analy sis w ith a y oung white veniremember who was s eated. 2 0 The ultimate question in Batson c as e s is “whether the defendant has
proven purposeful discrimination[

, which] i s a q u estion o f fact th a t we review f

or clear error.” Paulino I I
, 542 F .3d at 699; see also Crittenden v. Chappell ( Crittenden II)

, – F. 3 d

–, 2015 W L 6445531, at * 5 ( 9 t h Cir. Oct. 26, 2015). Althoug h t h e d i s trict judg e had just decided that Van Stralen’s testimony was n ot probative o f the actual reason for his strikes, he then concluded that in lig ht of the comparison

a chall e n g e to R.O. could have been reasonable and that therefore no B atson violation had occurred, stating that he could “sort of see prosecutors wanting somebody who has g ot

an ed ucation.” The district judg e did not, however, find that

2 0 W e a ssu

m e f o r p u rp o ses o f t

h is op in i o n th at th e d istrict co u rt w a s

co rrect to co n clu d e th at Sh irley f ailed t o carry h i s b u rd en o f s h o w i n g th at Van Stralen ’ s strik e o f L .L

. w as d i scrim i n ato ry

. In lig h t o f o u r d ecisio n

w ith resp ect to R.O., th ere is n o n eed to d ecid e th at qu estio n

. A Ba t s o n

v io latio n w ith resp ect to o n e v e n i r e m em b er is su f

f i cien t to req u ire

rev ersal. S

ee Va sq u ez-Lo

p ez , 2 2 F.3 d at 9 0 2

.S H I R L E Y V

. Y A T E S 30

Van Stralen actually struck R.O. for that r eason. 2 1 Ag ain, “[ i] t does not mat t e r t h a t the p rosecutor mig ht have had g ood

reasons

. . . ; what matters is the real re a s o n [ t he veniremembers] were st r i c k e n.” J ohnson

, 545 U.S. at 172 ( q u o ting Paulino I

, 371 F .3d at 1090 (alterations omitted ) ). B ecause the district c o urt failed to assess whether the circumstantial evidence Van Stralen offered supported the conclusion that his asserted, race-neu t ral reason for striking R.O. was a ctually his reason f or doing so and because the
court failed to make a f

i n d i n g as to the actual reason for the challen ge , t h e district court committed clear error. W e n ow proceed to ex a mine the record to “determine whether the

a c t u al reason for the strike violated the defendant’s equal protection rig hts.” Y

ee , 463 F .3d at 899.

“[ A] defendant opposing a pere m p t o ry challeng e bears the ult imate burden of proving the challeng e was improper[ ,] ” id. at 895; he must carry this burden by a pr e p o n d erance o f the evidence, Paulino II

, 5 42 F .3d at 7 0 2

. Along w ith the statistical evidence showing that black veniremembers were disproportionately struck, we weig h the persuasiveness o f the

21 Had w e ag reed w ith th e d istrict co u rt’ s co n clu sio n reg a r d i n g th e q u estio n lef

t o p e n in Pa ulin o II an d its related ru lin g th at th e s tate h ad f ailed to m eet its b u rd en at Step T w o , w e w o u ld h av e h eld th at th e d istrict

co u rt erred w

h en it stated at S tep T h ree t h at th ere w as “ n o ev i den ce on e

w ay o r t h e o th er, as I co n sid er it to b e ev id en ce, o n step 2 .” T h is is an in co rrect statem en t o f

th e law – a f ailu re to p ro d u ce co m

p eten t ev id en ce

a t Step T w o , w

h eth er d u e to a f

ailu re of m em o ry o r o th erw ise, i s af f irm ativ e ev id en ce o f d iscrim i n atio n

. S ee Pa u lin o II

, 5 42 F .3 d at 7 0 3 (“ W h ere th e s tate f

ails to m eet its bu rd en o f p ro d u ctio n , t h e ev id en ce b ef o re th e d istrict co u rt at step th ree

– t h e p r i m a f acie sh o w in g p l u s th e

ev id en ce o f d iscrim in atio n d raw n f ro m th e state’ s f

ailu re to p ro du ce a

reaso n

– w ill estab lish p u rp o sef u l d iscrim in atio n b y a p rep o n d er a n c e of th e ev id en ce in m o st cases. In d eed

, in su ch cases, th ere is n o race- n eu t ral

ev id en ce to w eig h .”).S H I R L E Y V

. Y A T E S 31

state’s evidence as to the prosecutor’s proffered, race-neutral reasons, and any other relevant factors. 2 2

At Step Three, if a trial judg e determines t hat a prosecutor’s ex planation is credible, that may well be the e nd of the inquiry

, but onl y i f t h e prosecutor has asserted that specific race-ne u tral reasons were in fact his actual reasons for the strike. I n this case, when the d istrict court determined that Van Stralen was credible, all the c r edited testimony could establish wa s that the jury selection approach to which Van Stralen testifi ed was “in fact” his g eneral approach. I t remained to be determined how much sup p ort this circumstantial evidence actually provided for the conclusion that the race-neutral r easons he offered in fact motivated the particular strike.

At Step Three, we hold that the district court clearly erred in finding that Shirley had n ot met h is burden o f showing discrimination by a preponderance of the eviden ce with respect to the strike of R.O., a question t h e district judg e repeatedly said was “very close.” W e so hold not because we disbelieve the testimony o ffered by Van Stralen, but because, althoug h Van Stralen’s approach to jury selection falls within

a category of c ircumst a

n tial evidence sufficient to meet the burden o f production at Step Two, the particular showing the

s t a t e made here provides too little support for its contention that Van Stralen actually

struck R.O. for the reason posited.

22 T h e o n ly f

acto r th e state id en tif

i es n o t o th erw ise ad d ressed h ere i s th at Van Stralen ’ s q u estio n in g o f th e v en i rem em bers w h o se strik es are at issu e

w as n o t d esu lto ry

. T ru e

– b u t w h ile su c h q u estio n in g (o r d if f eren tial
q u estio n in g ) o f m in o rity v en irem em b ers w ou ld o f

f er sig n if ican t s u p p o rt f o r a f i n d in g o f d i s c rim in atio n , its ab sen ce – as in m o st Ba t s o n cases g ran tin g relief

– is n o t esp ecially

n o tew o rth y

.S H I R L E Y V

. Y A T E S 32

A.

Circumstantial evidence of a prosecutor’s ge n e ral jury selection approach is a dequa t e at Step Two, but it deserves little if any weig ht at S t e p T hree when it describes only a vag ue g eneral p reference as to the ty pe of j u r ors the prosecutor finds most desirable – e.g ., “thing s t h a t I would like to see in a prospective juror” – r a t h e r t h an the ty pes o f veniremembers the prosecutor customarily strikes. Nor does the fact t h a t t h e absence of such ideal qualifications is a neg ativ e f

a c t or tell us much about a prosecutor’s practices with respect to actually

making strikes.

Circumstantial evidence r eg arding a prosecutor’s approach to jury selection in c ases in which the prose c u tor does not recall the specific challeng e o r the reasons therefor suffers g enerally from several weaknesses. F irst, the evidence i s not c ontemporaneous

– i.e., g enerated during jury selection. 2 3 T he Supr e m e Court has emphasiz e d the importance of the contemporaneous airin g o f justifications, which helps to avoid the “risks of imprecision and distortion from the passag e of time.” Miller-El v. Cockrell ( Miller-El I

), 537 U.S. 322, 342–43 (2003). A p rosecutor asked to produce

reasons on the spot w i l l not have time to review a transcript
to select a reason that is supported by the record (and was

c o n s istently applied). Van Stralen testified about h is appro a c h eig ht y ears after the fact, and after reviewing the reasons the
state cour t h a d d ecided were warranted by the record a nd would have been g o od enoug h

. Second, p r osecutorial approach evidence is n ot specific to t he particular trial a nd

23 W e d o n o t co n sid er h ere th e w eig h t to b e acco rd ed to a p ro secu to r’ s j u ry selectio n n o tes, b u

t lim i t o u r an aly s is to cases in v o lv in g j u ry s electio n p ractices o r ap p ro ach es.S H I R L E Y V

. Y A T E S 33

particular strike at i s s ue. Batson itself makes clear that lest the promise of equal protection b e come a “vain and illusory

r equirement,” a prosecutor must o ffer not “g ene ra l

as s e r t i o ns” but rather a “neutral ex p lanation related to the particular case to be tried .” 476 U.S. at 98 (emphasis added). Van Stralen was able to tie his approach to Shirley ’ s trial only by stating that h e “approach[ e d] jury selection

. . . in the same fashion for many , many y ears, including during this period o f time.”

Third, even if the ci r c u mstantial evidence credibly demonst r a t e s that a g eneral jury selection approach was actually emplo y e d at a g iven trial, it is p ossible that another

ex traneous factor – race o r something else – motivated a particular strike, at least in substantial part. As we ex p lained in Crittenden I

, “the proper analy sis at Batson ’s step three is whether the p e remptory strike was ‘ motivated in s ubstantial part’ by race. I f it w as so motivated, the petition is to be
g ranted reg a

rdless of whether the strike would have issued if race had play e d no role.” 624 F .3d at 958–59 (quoting Cook

v. LaMarque
, 593 F .3d 810, 815 (9th Cir. 2010)). W h e n a prosecutor testifies that he r e calls striking a black veniremember because he prefers jurors who are olde r a nd this veniremember was y oung , he is implicitly attesting that he recalls striki n g t he veniremember for that reason and not for others such as race. B ut when the prosecu t o r does not remember the strike, evidence that he prefers older jurors tells

us only that this consideration may h ave play ed some r ole in his selection decision, and say s nex t to nothing about whether other, illicit, factors also motivated the strike.

As t h i s case illustrates, approaches to jury selection fall al o n g a spectrum: a t one end are practices of reg ularly striking veniremembers who h ave a certain ob jectively

-S H I R L E Y V

. Y A T E S 34

defined characteristic; at the o ther end are vag ue preferences for or ag ain st jurors with more or less of a particular subjective a ttribute. F or ex amp l e, a prosecutor may testify
t h a t if a veniremember has n ot g raduated from hig h sch o o l

, he will usually strike him o n that basis alone – a re gu l a r practice – or he may testify that h e likes jurors wh o “ got a g ood education” – a mere preference for an ex perien ce o n ly
vag uely defined. W eaker s t i l l is evidence of a g eneral
pr e f e rence for jurors with an u ndefined characteristic o r set of ex perie n c e s, such as that which the prosecutor described here – “life ex

perience.”

B e cause evidence of a prosecutor’s approach to jury selection log ically supports his asserted reason for a strike only to the ex tent w e c a n conclude that it motivated a particular strike, only a p rac t i c e of reg ularly striking veniremembers with specific traits, characteristics, or similar disqualify ing features or attributes, can ordinarily provide persuasive evidence that an asserted reason for a strike was t h e a c t ual reason for its ex ercise. 2 4 I f a prosecutor simply
say s that he g enerally p refers e ducated j urors or jurors with adequate job ex perience but does not remember th e strike itself, it w ill be impossible to ascertain

– as we must

– whether this preference play ed any r o le in the decision to strike a particular veniremember and, even if it play ed some role, whether it w as a determinative o n e. Nor can we determine with any deg ree of co nfidence whether the strike

wo u ld have b een ex ercised if the veniremember h ad been white instead o f black. I n short, a g eneral approach to wh at constitutes preferred jurors, standing alone, affords u s no way

24 Acco rd Po lk v. Dixie In s. Co

. , 9 7 2 F.2 d 8 3
, 8 4– 8 5 (5 th Cir. 1 9 9 2 ) (p er

cu riam ) (cred i tin g testim on y th at a p articu lar f acto r w as th e “ t

u rn in g f acto r in ev ery [j u ry selectio n ] d ecisio n

. . . in ev ery

case”).S H I R L E Y V

. Y A T E S 35

to determine with respect to a particular strike the importance

o f the fact that the veniremember h ad not attended colle ge and instead proceeded straig ht t o the business of earning a living

, or that he had worked for three y ears in a r e t ail store

as compared to five as an auto mechanic. I ndeed, a g e n e ra l preference cannot tell us in what circumstances a p rosecutor would strike a

veniremember for falling short of his ideal.

The value of the juror-preference ty pe of e vidence is a t its nadir when the prosecutor ex presses his preference in terms

as star t l i ng ly vag ue and subjective as Van Stralen’s stated desire for jurors “who ha[ ve] been around, done some thing s,

. . . been in d i ff

e r e n t situations, met different people.” Such

a preference tells u s only whether the juror m e ets all the prosecutor’s hig hest aspirations, n o t how to assess the value of the “thing s” a g iven venireperson has “ d one,” nor, most important, in what circumstances the a b sence of these “thing s” would cause the prosecutor to ex ercise a strike. Van Stralen’s testimony that he is certain

– t h oug h he cannot recall – that a particular veniremember lacked such “thing s,” and that he struck her

for that reason , constitutes a n inference he drew that amounts to little more than “rank speculation”

–
an inference that is not supported by probative evidence, circumstantial or otherwise. Paulino II , 542 F .3d at 699.

The sorts of characteristics likely to warrant a reg ular practice o f striking v eniremembers – and to serve a s persuasive circumstantial e vidence – are those least likely to be pretex tual; such practices will ordinarily b e c oncrete a nd motivated by a patently leg itimate purpose. Reg ular practices of striking v eniremembers a re likely to apply to clear-cutS H I R L E Y V

. Y A T E S 36

cases that p ose l i t t l e risk of p ost-hoc rationaliz ation. 2 5 Moreover, it is likely that it will be evident from a review o f the transcript whether such practices are consistently applied. B y contrast, it will o ften be impossible to tell whether and to what ex tent a g eneral preference motivated a p articular strike, especially a v ag u e preference, such a s one for jurors with “life ex p erience.” 2 6 This d ifficulty in telling what role, if any ,

25 In Green v. Tra vis
, th en

- J u d g e So to m ay o r co n sid ered a case in w h ich th e p ro secu to r “ h ad little to n o i n d ep en d en t reco llectio n o f th e ch aracteristics o r co m

m en ts o f an y o f th e v en irep erso n s” an d h ad n o n otes reg ard in g o n e o f

th e f iv e ch allen g ed strik es, b u t ex p lain ed th at sh e h ad a p ractice o f strik in g v en irem em b ers w h o d em o n strat e d t h a t th ey w ou ld h av e d if f i cu lty “ u n d erstan d [in g ] ev id en ce” an d

, in p articu lar, “a s sessin g

w itn ess cred ib i lity .” 4 1 4 F .3 d 2 88
, 2 9 3
, 3 0 0

– 0 1 (2 d C ir. 2 0 0 5 ). Sh e w as esp ecially co n cern ed ab o u t str i k i n g v en irem em b ers w h o m ig h t b e relu ctan t to rely o n o n e w itn ess’ testim o n y to co n v ict in d ru g cases (lik e Green ’ s), “ becau se d ru g p ro secu tio n s o ft e n dep en d o n th e testim o n y of

o n e w itn ess.” Id

. at 3 0 0

– 0 1

. T h e v o i r dire t ran s crip t ref

lected th at w

h en th e v en irem em

b er at issu e w as ask ed h o w sh e w o u ld j ud g e w itn ess cred ib ility

, sh e rep lied o n ly “ ev i d en ce”; f u rth erm o re, h er “ d escrip tio n of h o w sh e w en t ab o u t d eterm in in g w h eth er h er so n w as ly in g to h er” called in to serio u s q u estio n

h er ab ility

to serv e in h er ro le as a j u ro r. Id

. at 2 9 3

. T h e co u rt h eld t

h at th e d istrict co u rt h ad n ot erred in accep t in g th is reaso n at b o th Step s T w o an d T h ree. Id

. a t 3 0 1

. T h i s p ro s ecu to r h ad a reg u lar
p ractice

– sh e testif

i ed n o t th at sh e p ref

erred m o re th o u g h tf

u l j u ro rs, b u t th at sh e stru ck v en irem em bers w h o d em on strated t h a t th ey w o u l d h av e d if f icu lty assessin g w itn ess cred ib ility

. Fu rth erm o re, sh e l in k ed th is (p aten tly leg itim at e ) p r actice to p articu lar s tatem en ts th e v en irem em ber

m ad e d u rin g v o ir d i re.

26 Vag u e p ref

eren ces are p articu larly lik ely to co n ceal im p l icit b ias, as th e d istrict j u d g e

– to h is cred it

– reco g n i zed

. P ro secu to rs m ig h t w ell

co n ceiv e o f “ l if

e ex p erien ce” i n w ay s th at h av e a p ro f o un d l y d isp arate im p act o n m e m

b ers o f d i f

f eren t racial g ro u

p s. Yo u n g b lack p eo p l e m ay b e less lik ely to en ro ll in co lleg e t h an y o u n g w

h it e p e o p l e , b u t th i s can h ard ly b e tak en to sig n if

y th at th e av erag e y o u n g b lack p erso n h a s less

“ l if e ex p erien ce” th an t

h e av erag e y o u n g w

h ite p erso n

. Mo reo v er, a v ag u e p ref eren ce m ay b e m o re lik ely to p lay a p art in a p ro secu to r’ s d ecisio n toS H I R L E Y V

. Y A T E S 37

a g eneral preference play ed in the st r ike may frequently be resolved by

the prosecutor’s contemporaneous notes.

W ith the distinction in mind b etween a practice of striking veniremembers with particul ar specific attributes a nd a preference for jurors wi th g e neral ty pes of e x periences, we turn to evaluating the circumstantial evidence Van S t ralen offered in the district court.

B.

Van Stralen g ave two reasons for s t r i k ing L .L .: her criminal conviction a

nd her possible acquaint a nce w ith the defendant and a relative of his. He testified t h at in striking L .L
., he followed a reg ular practice because an adult criminal conviction was a “deal breaker.” The trans c r i p t shows that L .L

. was convicted o f a c rime as a n a d u l t – a clear a nd specific factor on the basis of which Van Stralen consistently

ex e r cised strikes. Hence, the c ircumstantial ev i d en c e of his
reg ular pr a c t ice provided sig nificant support for the

strik e a v en irem em

b er w h o is b lack th an it w o u ld if th at j u ro r w ere w h ite, if th e p ro secu to r is m o tiv ated to a su b stan tial d eg ree b y

racial b ias.

It is tru e (an d m o st u n f

o rtu n ate) t

h at Ba tso n is n o t d esig n ed to ro o t o u t im p licit b i as, as J u stices B rey er an d Marsh all, alo n g w it h o n e o f ou r

co lleag u es in th e No rth ern District o f Io w a, h av e d iscu ssed in so m e d ep th

. S ee Miller-El v. Dretke (

M iller

- El II ), 5 4 5 U.S. 2 3 1
, 2 6 7

– 6 8 (2 0 0 5) (B rey er, J
., c o ncu rrin g ) (citin g Ba tso n , 4 7 6 U.S. at 10 6 (Marh sall, J
., co n cu rrin g )); Mark W

. Ben n ett, “ Un rav elin g th e Go rd ian Kn o t of Im p licit B ias in J u ry Selectio n : T h e P ro blem s o f J u d g e- D o m in ated Vo i r Dire, th e Failed P r o m i s e o f Ba tso n , an d P ro p osed So lu tio n s,” 4 Ha rv. L. & Po l’y Rev. 1 49 (2 0 1 0). Ho w ev er, th e risk o f i m p l i c it b ias is acu tely relev an t

w h en co n sid erin g circu m stan tial ev id en ce o f th e s o rt at issu e h ere, b ecau s e

a p ro secu to r’ s j u r y s e l e c t io n ap p ro ach o f f ers n o su p p o rt at all f

o r th e state’ s case if

it is n o t co n sisten tly

em plo y ed in a ra ce-n eu tra l fa sh io n

.S H I R L E Y V

. Y A T E S 38

conclusion that Van Stralen s t r u c k L .L

. because of her conviction. Althoug h we need not decide here the validity o f L .L .’s strike, it provides a clear contrast to the strike of R.O.

The p reference Van Stralen ex press e d

, for “jurors w ho have life ex p erience

. . . well, a person basically who has been around, done some thing s, w ho’s been in different situations,
met different people,” is far f rom describ i n g a reg ular practice w i th reg ard to strikes and is, to the contrary , ex tremely vag ue. That V an Stralen “like[ s] to see jurors w ho have life e x perience” cannot in itself support the conclusion that he struck R.O. for that reason. I t is far from evident from the transcript that R.O. had so littl e l i fe ex perience that this preference w as a sig n ificant, much less d eterminative, factor in V a n Stralen’s d e c ision to strike her 2 7 and he did not testify

2 7 In t h e co u rse o f th i s d iscu s sio n , Van Stralen m en tio n ed

, am o n g o th er th in g s, th at R.O. “ h ad n o t g o n e of f to co lleg e.” If Van Stralen h ad in stead testif ied th at h e em

p lo y ed a categ o rical p ractice o f strik in g v en irem em b ers

w h o h ad n o t atten d ed co lleg e, t h is w o u ld h av e b ee n s u s p e ct. In Hern a n d ez , th e Su p rem e Co u rt h eld :

“ [A ]n in v id io u s d i scrim i n ato ry p u rp o se m ay o f ten b e in f erred f ro m t h e to tality o f t

h e relev an t f

acts, in clu d in g th e f act, if i t is tru e, th at th e [classif icatio n ] b ears m ore h eav ily o n o n e race t

h an an o t h er

. ” If a p ro secu to r articu l ates a b asis f

o r a p erem

p to ry ch all e n g e th at

resu lts in th e d isp ro p o rtio n ate ex clu sio n o f m em b ers of

a certain race, th e trial j u dg e m ay co n sid er th at f

act as

ev id en ce th at th e p ro secu to r’ s stated reaso n co n stitu tes a p retex t f

o r racial d i scrim i n atio n

.

5 0 0 U .S. at 3 6 3 (q u o tin g W ash in g to n v. Da vis
, 42 6 US. 2 2 9
, 2 42 (1 9 7 6 )). If an in f eren ce o f d iscrim i n atio n can b e d raw n w h en a p ro secu to r t estif

ies th at h e stru ck a p articu lar v en i rem em b er o n a b asis w

h ich

, if ap p lied

u n iv ersally

, w o u ld resu lt in d isp ro p ortio n ate s t r ik es o f m i n o rity

v en irem em

b ers, th at sam e in f

eren ce i s i n escap ab le w

h en a p r o s ecu to rS H I R L E Y V

. Y A T E S 39

that h e had a

ny such practice. I nstead, Van Stralen sug g ested that a lack of life ex perience was a neg ative factor in his overall r eview of jur o r s ’ q ualifications. This contrasts with hi s ty pical practice of striking jurors w hose a dult criminal convictions h e c onsidered deal breakers. B ecause Van S t r a l e n’s testimony established at best that he may have considered life ex perience in deciding whether to strike R.O., and not that h e actually based h is decision to strike her on that
g round, his testimony provides little support for his assertion (which was b ased only on an inference) that this w as his actual reason for striking

R.O.

C.

The c omparative juror a n a l y s is does not aid the state’s
case; actually

, the compari s o n b etween R.O. a nd J uror Number 3, o n which the district court so heavily relied, cuts in Shirley ’s favor. The purpose of comparative juror analy sis is larg ely to test for consistency

. I f a prosecutor states that his

reason for striking a veniremember was tha t s h e had been convicted of a crime, and that he has a practice of striking all veniremembers with criminal convictions, it is easy to determine whether any of the j u r o r s p ermitted to serve also had criminal records. W h en, however, the prosecutor merely
states that he believes h e s t r uck a veniremember because he has a prefer e n c e f

o r jurors with “life ex perience,” and that upon his review of the transcript it looks to him like she had less of it t h an another juror h e permitted to serve, the comparison is less probative.

in f o rm s th e co u

rt th at h e in f

act d o es h av e a co n sisten t p ractice o f strik in g

v en irem em

b ers o n th at b asis.S H I R L E Y V

. Y A T E S 40

The comparative juror analy si s h e re shows that a white juror with a very similar level o f “life ex perience” was seated. Van Stralen ex pl a i n e d his reason for striking R.O. b y identify ing i n d i c ations in the transcript of her limited “life

ex p erience,” focusing larg ely on her y outh an d also emphasiz ing that she had not left home. J uror Number 3 was approx imately the same ag e and likewise had not left h ome. Althoug h Van Stralen stated that J u r o r N umber 3 was enrolled in colleg e at “Sac State” and worked as a g y m manag er w hile R. O

. h ad n ot taken c olleg e c ourses a nd

wo r k e d as a photog raphy technician at a pharmacy

, these differences were, for purposes of B atson , minor. 2 8 Moreover, R.O. ex plained that she was enthusiastic abou t s e rving a nd would readily follow the evidence, while J uror Number 3 said that he p referred not to serve and di d n o t h a v e the ability to follow the trial with his fu l l a t t e n t ion. As in Miller-El II
, there w ere “strong similarities as well as some differences.” There will of course a lway s be at le a s t s ome differences because even very similar “potential jurors are not products of a set of cookie cutters.” 545 U.S. at 247 & n.6. Here, the differences were slig ht and actually favored R.O. They do not support the state’s claims.

V. Conclusion

Our opinion a d d r esses a narrow set of Batson cases in which t h e prosecutor cannot a c tually remember the reason

28 Van Stralen d escrib ed J u ro r Nu m ber 3 ’ s ed u catio n an d j o b ex p erien ce

as “ p o sitiv e” b ecau se th ey s h ow ed “ in itiativ e,” “ in tellig en ce,” “ d ecisio n

m ak in g ,” an d th at h e “ h ad so m eth in g g o in g f o r h i m .” B u t h e d id n o t assert th at R.O. lack ed t

h ose q u alities. Sim ilarly

, w h ile Van Stralen su g g e s ted J u ro r Nu m b er 3 m ig h t h av e a f

av o rab le v iew

o f law en f o rcem en t , h e d id

n o t co n ten d th at R.O. d id n ot also h av e a p ositiv e v iew

.S H I R L E Y V

. Y A T E S 41

why he struck the veniremembers. I n such c a s e s , we hold that if a prosecutor testifies both to his g eneral jury selection approach and that he is confide n t o n e of these race-neutral preferences was the act u al reason for the strike, this is suf f icient circumstantial e v idence to satisfy Batson Step Two. Nevertheless, we also hold that this e vidence a lone will sel d o m be enoug h at Step Three to overcome a prima facie

case unle s s the prosecutor has a regular practice of striking veniremembers who possess an objective characteri s t i c that
may be clear l y defined. That a veniremember (alleg edly ) lacks a cer t a in je ne sais quoi that the prosecutor prefers is simply n ot e noug h. Here, the d istrict c ourt incorrectly f ound that Van Stralen had not met the state’s burden of production
at Step Two. M o r e sig n ificantly

, the district court clearly erred in deny ing Shirley ’s claim at Step Three on the basis o f

a juror comparison and its view that the reason Van Stralen proffered could have been a g ood r ea s o n for striking R.O. The district judg e did not determine w hether Van Stralen h ad offered c ircumstantial e vidence suffic i e n t to support the inference t h at he actually struck R.O. for the reason proffered.

Shirley ’s prima facie evidence of d iscrimination was met with only a leng thy st a t e m e nt that Van Stralen “liked to see jurors who have life ex pe r i e nce.” H is vag ue, g eneral preference – as opposed to a reg ular practice o f striking veniremembers for a specific reason – constituted a t most an inclination towards jurors w ith hig hly indefinite attributes o r q u alities. A vag ue a

pproach to jury selection may constit u t e sufficient c ircumstantial e v idence for purposes of Step Two, but, in a c ase in which the prosecutor does not recall his actual reason for striki n g t h e juror in question, it provides little or no prob ative support for a conclusion at Step Three that he struck her for t h e r e a s o n he proffered. Nor does aS H I R L E Y V

. Y A T E S 42

comparative juror analy sis h e lp the state’s case here. Th us, Shirley ’s evidence was sufficient to carry his burden o f showing that the strike of R.O w a s m o t ivated in substantial part by race.

W e therefore reverse the decision of the district c ourt a nd remand with instruc t i o ns to g rant the writ unless the state elects to retry

Shirley within a reasonable amount of time.

REVERSED and REMANDED.