Darryl Shirley v. James Yates

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARRYL DARMONT SHIRLEY, No. 13-16273

Petitioner-Appellant,

D.C. No.

v. 2:07-cv-01800-

AK

JAMES A. YATES, Warden;

ATTORNEY GENERAL OF THE STATE

OF CALIFORNIA, AMENDED

Respondents-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of California

Alex Kozinski, Circuit Judge, Presiding

Argued and Submitted

November 20, 2014—San Francisco, California

Filed November 20, 2015

Amended March 21, 2016

Before: Sidney R. Thomas, Chief Judge, and Stephen

Reinhardt and Morgan Christen, Circuit Judges.

Opinion by Judge Reinhardt

2 SHIRLEY V. YATES

SUMMARY*

Habeas Corpus

The panel reversed the district court’s denial of relief on

California state prisoner Darryl Shirley’s claim under Batson

v. Kentucky in his habeas corpus petition challenging his

conviction for first-degree burglary of an unoccupied

residence and second-degree robbery of a sandwich shop, and

remanded with instructions to grant the writ unless the state

elects to retry Shirley within a reasonable amount of time.

The panel held that because the California Court of

Appeal acted contrary to clearly established law when it

based its Batson Step One prima facie analysis on a

discredited standard, it was appropriate for the district court

to determine de novo whether Shirley had raised an inference

of racial bias. The panel agreed with the district court that

contrary to the state court’s conclusion, Shirley did raise an

inference of discrimination sufficient to meet his burden at

Step One.

Addressing the narrow set of cases in which the

prosecutor cannot remember the reason why he struck

veniremembers, the panel held that if the prosecutor testifies

both to his general jury selection approach 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 production at Batson Step

Two. The panel held that this evidence alone will seldom be

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SHIRLEY V. YATES 3

enough at Step Three to overcome a prima facie case of racial

discrimination unless the prosecutor has a regular practice

of striking veniremembers who possess an objective

characteristic that may be clearly defined.

The panel held that the district court incorrectly found

that the prosecutor had not met the state’s burden of

production at Step Two, but that the district court clearly

erred in denying Shirley’s claim at Step Three on the basis of

a juror comparison and its view that the reason the prosecutor

proffered could have been a good reason for striking black

venireperson R.O. The panel observed that the district judge

did not determine whether the prosecutor had offered

circumstantial evidence sufficient to support the inference

that he actually struck R.O. for the reason proffered. The

panel wrote that in a case in which the prosecutor does not

recall his actual reason for striking the jury in question, a

prosecutor’s stated vague approach to jury selection provides

little or no probative support for a conclusion at Step Three

that he struck her for the reason he proffered. The panel

wrote that a comparative juror analysis does not support the

state’s claims in this case. The panel therefore concluded that

Shirley’s evidence was sufficient to carry his burden of

showing by a preponderance of the evidence that the strike of

R.O. was motivated in substantial part by race.

4 SHIRLEY V. YATES

COUNSEL

Jennifer M. Sheetz (argued), Mill Valley, California, for

Petitioner-Appellant.

Barton Bowers (argued), Deputy Attorney General; Kamala

D. Harris, Attorney General of California; Dane R. Gillette,

Chief Assistant Attorney General; Michael P. Farrell, Senior

Assistant Attorney General; Michael A. Canzoneri,

Supervising Deputy Attorney General, Sacramento,

California, for Respondents-Appellees.

OPINION

REINHARDT, Circuit Judge:

I. Introduction

Darryl Shirley was convicted of the first-degree burglary

of an unoccupied residence and the second-degree robbery of

a sandwich shop (he took $80 from the cash register). In

neither instance was anyone harmed, and no weapons were

involved in either offense. Shirley was sentenced to two

consecutive 25-years-to-life terms in prison for the burglary

and robbery, and also four consecutive five-year sentence

enhancements based on prior convictions.

On habeas, Shirley properly raised a number of claims.

Because we reverse the district court’s denial of relief on his

claim under Batson v. Kentucky, 476 U.S. 79 (1986), we need

not reach his other claims.

SHIRLEY V. YATES 5

II. The Batson Framework

Batson sets out a three-step burden-shifting framework

for evaluating claims of discriminatory peremptory strikes. At

Step One, the defendant bears the burden to “produc[e]

evidence sufficient to permit the trial judge to draw an

inference that discrimination has occurred.” Johnson v.

California, 545 U.S. 162, 170 (2005). Once the defendant

makes out a prima facie case, at Step Two “the burden shifts

to the State to explain adequately the racial exclusion by

offering permissible race-neutral justifications for the

strikes.” Id. at 168 (internal quotation marks omitted).

Finally, at Step Three, “[i]f a race-neutral explanation is

tendered, the trial court must then decide . . . whether the

opponent of the strike has proved purposeful racial

discrimination.” Id. (internal quotation marks omitted).

III. Procedural History

1. State Trial Court

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

sworn. Of that number, five veniremembers were black.

(Shirley, too, is black.) Of those five, all but one were

removed from the venire – the remaining one, who was

among the twelve originally summoned to the box, was

seated on the jury. First, J.H. was dismissed by the court for

cause, due to illness. Next, L.L. was peremptorily struck by

the state. Then, K.A. was dismissed for cause on the parties’

joint motion, because she had a brother with a criminal record

and said that she would have trouble sitting in judgment of

another person. Finally, the state used another peremptory

6 SHIRLEY V. YATES

strike to dismiss R.O.1 After this strike, Shirley made a

Batson motion, claiming that the peremptory strikes of L.L.

and R.O. were racially discriminatory. The motion was

denied, with the trial judge stating that Shirley had failed to

make out a prima facie case:

[L.L.] had a misdemeanor conviction in her

background, related to fraud, which may have

reflected, and in fact, did reflect on her moral

turpitude.

[R.O.] ostensibly appeared to be an acceptable

juror. She was young, although she did

express an interest in being on the panel.

But except for [R.O.]’s possible improper

excusal, I don’t see any pattern of exercise of

improper peremptory challenges by the

People.

So I find there is no prima facie case or

demonstration of an improper exercise of

excusal of peremptory challenges against

African Americans, especially in light of the

fact that we have one original juror, [], still on

the jury, or at least potential jury, who is one

1

The prosecutor was afforded 20 peremptory strikes, of which he used

only 10. By the time Shirley made his Batson motion, the prosecutor had

exercised nine strikes, to dismiss L.L., R.O., and seven other

veniremembers (whose race is not apparent from the record, but whose

dismissals were not challenged). The prosecutor subsequently used one

additional strike.

SHIRLEY V. YATES 7

of the original 12 who were summoned in the

jury box, who is still present.

2. State Court of Appeal

The California Court of Appeal affirmed the trial court’s

Batson ruling, relying on People v. Box, 23 Cal. 4th 1153,

1188 (2000). See People v. Shirley, 2007 WL 1302512 at *4

(Cal. Ct. App. May 4, 2007). The Court of Appeal quoted

Box stating that “when the record ‘suggests grounds upon

which the prosecutor might reasonably have challenged the

jurors in question, we affirm.’” It concluded that there were

two race-neutral reasons for dismissing L.L.: the prior

misdemeanor conviction for fraud, and her possible

familiarity with the defendant and one of his relatives. It also

concluded that R.O.’s “age and corresponding lack of life

experience” was a legitimate race-neutral reason for striking

her. The state court added that any inference of discrimination

with respect to the strike of R.O. was undermined by the fact

that three young white veniremembers who “demonstrated a

lack of life experience” were also struck. “[T]he record also

shows,” the court noted, “that the individuals who were

selected to sit on the jury were reasonably intelligent and had

a good deal of work and/or life experience.” The state court

observed that while another veniremember – one who was

seated, as Juror Number 3 – “was a senior at ‘Sac State’ who

lived with his parents, he also worked as the manager of a

gym, a position that involves decision making.” Finally, it

speculated that the prosecutor might have been seeking a

“strategically balanced” jury, such that “one young juror 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 examination of the jurors’

qualifications as contained in the record.

8 SHIRLEY V. YATES

3. District Court

Shirley filed a federal habeas petition. The district court

concluded that the state court had acted contrary to clearly

established Supreme Court precedent by finding, on the basis

of speculation about possible race-neutral reasons for

exercising the challenged strikes, that Shirley failed to raise

an inference of discrimination and thereby make out a prima

face case. Shirley v. Yates, 2013 WL 394713 at *2 (E.D. Cal.

Jan. 30, 2013). On de novo review, the district court

concluded that Shirley had satisfied Batson Step One by

showing that two out of three eligible black veniremembers

were peremptorily struck and that the second, R.O., was

similar to a white veniremember who was seated. Because the

state court “prematurely cut off the Batson inquiry at Step

[One],” the district court conducted a hearing to take evidence

regarding the prosecutor’s reasons for exercising the

challenged strikes.

A. Evidentiary Hearing

At the evidentiary hearing, the court heard testimony from

the deputy district attorney who prosecuted Shirley eight

years earlier, Alan Van Stralen. Van Stralen testified that he

had a “general approach to jury selection,” which was “well

entrenched” prior to Shirley’s trial, Van Stralen’s fifty-fourth.

Van Stralen was asked to describe his “criteria for identifying

desirable or undesirable jurors:”

Things that I would like to see in a

prospective juror would include intelligence,

I guess, first of all. And I would determine

that through how the person presents

themselves in court, the manner in which they

SHIRLEY V. YATES 9

speak, the type of employment they’ve held.

A college education is definitely a plus as far

as that goes.

I like to see jurors who have life experience.

That’s quite important to me. And I, in that

regard, would look at things such as – well, a

person basically who has been around, done

some things, who’s been in different

situations, met different people.

In that regard I, again, would put some

significance on a college education because

that does get a person out into the world and

new environments and meeting new people

and encountering new situations and

introduces them to analytical thinking.

I also would look to and place a lot of

emphasis on a person’s employment. If a

person has employment – first of all I like to

have people who are employed and have a

good track record of employment. But in

particular what I like to see is people who

have jobs that would involve a significant

amount of responsibility or a significant

amount of decision-making.

I also like jurors who, to the extent I can

ascertain this, would appear to have a

personality that would mesh with other

people, somebody who would get along with

other people since for a successful prosecution

I’m looking for 12 people to be able to agree.

10 SHIRLEY V. YATES

So I like to get people on my jury who are

likely to be able to get along with others and

do well in the deliberation process.

Actually, I also look kind of overall [–] has

this person led a responsible life. And, you

know, I might, again, look to the type of

employment they’ve had, what their family

history is, were they raised in a family, do

they have any run-ins themselves with the

law. That would not be a favorable aspect as

far as I’m concerned.

And on a similar note, if somebody had a

favorable – particularly favorable attitude

towards law enforcement, that would be a plus

for me because a person like that, I believe,

would trust the system enough that if the

evidence was there to prove guilt, they would

not hesitate to vote for guilt.

Because he listed primarily positive factors, Van Stralen

was asked to elaborate on the one “potentially negative”

factor he had mentioned. He explained that he considered

crimes committed “well into somebody’s adulthood,” or those

involving “dishonesty,” such as theft, perjury, or fraud, to be

“deal breaker[s].” Asked whether there were “other negative

qualifications”; he said, “[p]robably just the opposite of the

things that I just went through as far as what I would look for

in a juror.”2

2

The full question to Van Stralen was: “And besides the criminal history

of a prospective juror, are there other negative qualifications or deal

breakers that you might seek to avoid in a juror?” Van Stralen’s answer,

SHIRLEY V. YATES 11

Van Stralen went on to explain that he had “a practice of

making contemporaneous notes when selecting a jury” on

“small yellow Post-its.” He stated, however, that he “[did]

not retain those notes,” suggesting that “[o]ther people might

be better at taking notes than I am,” and explaining that he

did not “find . . . a lot of time to write down detailed notes

during jury selection,” but rather “jot[ted] down just brief

little comments or words . . . a shorthand.” “I don’t believe

those notes would be useful to me years down the road,” Van

Stralen testified.3

Although Van Stralen did recall the facts of Shirley’s

case, and did recall picking a jury, he did not recall the

reasons he exercised his strikes. In addition, he did not keep

the notes he made during voir dire, and the prosecution’s case

file “was no longer available” – “[i]t had possibly been

destroyed . . . after a period of time.”

however, appears to describe only negative qualifications¯not deal

breakers. He discussed “things I’d like to avoid,” noting they were mostly

just the absence of things he would look for in an ideal juror, for example,

“somebody [who] didn’t appear to be particularly intelligent, [or]

somebody [who] didn’t have a lot of life experience.” By contrast, in

response to a question moments later, he testified that a veniremember

having committed a “dishonesty” crime or a crime well into adulthood

was a “deal breaker” in that he would not accept that person on the jury

under any circumstance.

3

He also stated that he did not – and was not allowed to – retain juror

questionnaires.

12 SHIRLEY V. YATES

Based on his review of the voir dire transcript,4 Van

Stralen testified that he struck L.L. for three reasons. First,

because L.L. stated that Shirley looked familiar to her, it was

possible that she “might have a bias in favor of [him],” or

“might be a bit more reluctant than a person who didn’t know

or didn’t find the defendant familiar to convict because she

might believe that she would see him around again.” Second,

L.L. had recently met – and was considering conducting

business with – a man who may have been related to Shirley.

Third, L.L. had been convicted of a crime as an adult, which

“would lead [Van Stralen] to believe she hasn’t led as

responsible a life as [he] would hope for [his] prospective

jurors.”5

4

On cross-examination, Van Stralen revealed that he had also reviewed

the state court decision and the district court order finding the state court’s

Step One determination to be unreasonable and ordering a Step Two

hearing. The district court found his testimony at that hearing to be

“entirely credible . . . very professional . . . [and] very forthright,” and we

defer to that determination because it is not clearly erroneous. Fed. R. Civ.

P. 52(a)(6). However, Van Stralen articulated his purported reasons for

striking L.L. and R.O. in terms – literally – that are remarkably similar to

those previously hypothesized, without the benefit of his testimony, by the

state court and discussed in the district court order. Both the state court

and Van Stralen said that R.O. had too little “life experience,” and

emphasized that while her job – developing photographs at a drugstore –

apparently did not involve “decision making,” the young white

veniremember’s job – managing a gym – did.

5

Until counsel for the state refreshed his recollection in the midst of his

testimony, Van Stralen could not recall for sure whether he had questioned

L.L. about her conviction. He “did not see that in [his] review of the

transcript” until he was directed to the relevant pages of the transcript: “I

did question her. And that was actually kind of what I was trying to relate

a moment ago. I think I may have questioned her, but I don’t know that I

did. And the transcript doesn’t reflect that I asked her the nature of the

conviction.”

SHIRLEY V. YATES 13

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

“simply because she lacked life experience”: she was “very

young . . . three years out of high school,” and worked at a

Walgreens pharmacy developing photographs. “She had not

gone off to college. Apparently she’s living and working in

the same area she grew up in.” Van Stralen explained that he

“think[s] people who lack that kind of life experience don’t

make particularly good jurors. They don’t have a perspective

upon which to make sound decisions.”

When asked, for purposes of a comparative juror analysis,

about a white veniremember of approximately the same age

he allowed to be seated, Van Stralen told the court that the

veniremember – Juror Number 3 – was desirable because he

was “going to college[,] [which] shows some initiative [and]

a certain degree of intelligence generally speaking.” Juror

Number 3 was also a manager at a gymnastics facility, which

showed Van Stralen that he had “significant responsibilities

. . . and would be involved in decision-making.” “[H]e had

something going for him . . . [and] did have life experience

. . . [and] a perspective that I think would be valuable as a

juror.” Van Stralen also noted that he “put some consideration

on the fact that” Juror Number 3 had a “favorable view of law

enforcement,” reflected by the fact that he twice called the

police to report vandalism or burglaries at the elementary

school across the street from his house, and that his sister and

brother-in-law were employed by police departments.

Van Stralen said that he had a “very, very high degree of

confidence” that the reasons he gave in his testimony at the

hearing were his actual reasons for exercising the contested

strikes at trial. Critically, however, he was asked on direct

“whether the reasons you dismissed the two jurors . . . were

based on a specific memory you have or rather were

14 SHIRLEY V. YATES

consistent with a standard practice you had in jury selection

or something else?” Van Stralen responded:

[B]est way I can answer is after reviewing the

transcript, knowing how I approach jury

selection, knowing that I have done so in the

same fashion for many, many years, including

during this period of time, I can say again,

without reservation, that those were my

reasons because those are reasons that I would

dismiss a juror in similar circumstances in any

case.

When he reiterated the same on cross, he was asked:

Q. Because that’s your general practice, your

general approach?

A. Yes.

Q. And not because you remember [R.O.] or

[L.L.]?

A. Correct. I don’t remember . . . .

During a brief oral argument following Van Stralen’s

testimony, Shirley’s counsel argued that Van Stralen “may

have had good 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 he has no recollection of the actual real reasons.”

Counsel for the state disputed the legal – but not the factual

– assertion, stating that “the evidence before this court is that

keeping these two disputed jurors would have been

inconsistent with the guidelines that Mr. Van Stralen

SHIRLEY V. YATES 15

described as comprising his general approach to selecting a

juror. It would have been inconsistent, and that is evidence,

circumstantial evidence, of nondiscrimination.” In conducting

this evidentiary hearing, the district court satisfied its

obligation under Step Two of Batson.

B. Ruling

After the evidentiary hearing, the district court ruled

orally. First, the district court determined that the testimony

offered by Van Stralen was not sufficient to satisfy the state’s

burden of production at Batson Step Two. In so doing, the

district court answered a question left open in Paulino v.

Harrison (Paulino II), 542 F.3d 692, 701 n.10 (9th Cir.

2008), and at the center of this case: “whether a list of

standard considerations, absent affirmative evidence that they

were used in the particular case in question, is competent

evidence of a prosecutor’s actual reasons for striking certain

jurors.” The district court concluded “that you have to have

actual evidence of actual reasons,” and that a court cannot

“infer it from practices and apply it to a particular case.”

Proceeding on to Batson Step Three, the district judge

observed:

[R]egardless of that finding the court has to go

on and make an actual determination whether

there was racism involved.

So you’ve then got the presumption that’s

created by the prima facie case. You have . . .

no evidence one way or the other, as I

consider it to be evidence, on [S]tep 2. And

16 SHIRLEY V. YATES

the question is, based on that, can I infer

discrimination.

[I]t is clear that the burden stays on the person

. . . wishing to challenge the strike . . . .

As to Shirley’s prima facie case, the district court drew a

distinction between the number of minority veniremembers

struck in Paulino II – there, five out of six strikes were

challenged as discriminatory – and the number at issue in

Shirley’s case (only two). The district judge then went on to

consider whether the reasons the prosecutor gave for striking

L.L. “ma[de] sense” to him. He concluded that her removal

from the venire “just strikes me as entirely reasonable”; “even

putting aside the misdemeanor conviction for what appears to

be some sort of dishonesty-related offense,” he said, “I think

a prosecutor would be very likely to strike somebody” who

might have recognized the defendant and might be doing

business with a relative of his. He continued: “And even

without the witness’s explanation, once I put it together in my

mind, it just seems plausible. And, you know, that’s what 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 up –

whether it was the actual reason R.O. was struck – the district

judge compared her responses to Juror Number 3 and drew a

distinction between them:

6

The district judge called it “very close” four times in less than one page

of hearing transcript, and noted that “the Court of Appeals might well

disagree with me.”

SHIRLEY V. YATES 17

She did not, in fact, go to college so that

distinguishes her from the other juror who

was going to Sacramento State. So they were

about the same age, but she was obviously

less educated. I can sort of see prosecutors

wanting somebody who has got an education.

On the basis of his conclusion that R.O.’s lack of higher

education could have been a good reason to strike her, the

district judge denied relief.

IV. Analysis

1. Batson Step One

In Johnson v. California, 545 U.S. 162, 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 discrimination at Step One; rather,

Johnson reiterated that a defendant makes out a prima facie

case if he produces evidence sufficient to support a

“reasonable inference” of discrimination.

As the district court correctly concluded, the California

Court of Appeal acted contrary to clearly established law

when it “based its prima facie analysis on the discredited, pre-

Johnson, standard articulated by the California Supreme

Court in People v. Box . . . .” The state court held that “when

the ‘record suggests grounds upon which the prosecutor

might reasonably have challenged the jurors in question, we

affirm’” the trial judge’s ruling that the defendant failed to

make out a prima facie case. Based on just such speculation,

it found that Shirley had not met his burden at Batson Step

One.

18 SHIRLEY V. YATES

We have made clear, however, that Box imposes too high

a burden, and that state court decisions applying it do not

warrant deference under AEDPA, because they are “contrary

to . . . clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). See Johnson v. Finn, 665 F.3d 1063, 1069 (9th

Cir. 2011) (“[T]he existence of ‘grounds upon which a

prosecutor could reasonably have premised a challenge,’ does

not suffice to defeat an inference of racial bias at the first step

of the Batson framework.”). Hence, it was appropriate for the

district court to determine de novo whether Shirley had raised

an inference of racial bias. Id. at 1069–70.

We likewise agree with the district court that, contrary to

the state court’s conclusion, Shirley did raise an inference of

discrimination more than sufficient to meet his “minimal”

burden at Batson Step One. Id. at 1071. The fact that a

prosecutor peremptorily strikes all or most veniremembers of

the defendant’s race – as was the case here – is often

sufficient on its own 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 prima facie showing

based on statistical disparities alone.”). In this case, two-

thirds of the black veniremembers not removed for cause

were struck by the prosecutor. We have found an inference of

discrimination in cases where smaller percentages of minority

veniremembers were peremptorily struck. Fernandez v. Roe,

286 F.3d 1073, 1078 (9th Cir. 2002) (56%); Turner v.

Marshall (Turner I), 63 F.3d 807, 812 (9th Cir. 1995) (56%),

overruled on other grounds by Tolbert v. Page, 182 F.3d 677,

SHIRLEY V. YATES 19

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

Alvarado, 923 F.2d 253, 255 (2d Cir. 1991) (57%).7

That one black juror was eventually seated does weigh

against an inference of discrimination, but “only nominally”

so. Montiel v. City of L.A., 2 F.3d 335, 340 (9th Cir. 1993).

“In denying a Batson motion, . . . a trial court may not rely

solely on the fact that some African-Americans remain on the

jury.” Turner I, 63 F.3d at 811–14 (finding a prima facie case

of discrimination despite the presence of four black jurors).

In Fernandez, we observed that “the lone Hispanic juror’s

presence on the jury here is less helpful . . . in light of the trial

judge’s explicit warning to the prosecutor that any additional

challenges against Hispanics would trigger a prima facie

finding of discrimination.” 286 F.3d at 1079. The same logic

applies to the case before us: the trial judge denied Shirley’s

Batson motion, made after two of the three remaining black

veniremembers had been struck, “in light of the fact that we

have one original [black] juror, [], still on the jury, or at least

potential jury . . . .” The trial judge found no prima facie

showing “at this time of a pattern”8 of discriminatory strikes.

7

The denominators in these cases – that is, the total numbers of

minorities in the venires – were larger than three. Wade v. Terhune, 202

F.3d 1190, 1198 (9th Cir. 2000), does suggest, quite logically, that larger

denominators will lead to stronger inferences of discrimination, and

cautions that when a Batson challenge is made after the first minority to

be called into the jury box is peremptorily struck but well before jury

selection concludes, it would be erroneous to find that a prima facie case

had been made merely because at the time of the challenge the prosecutor

had struck 100% of minority veniremembers. In contrast to Wade, Shirley

has challenged both of the black veniremembers Van Stralen struck, not

only one of them. Additionally, in Shirley’s case, peremptory strikes were

used at a disproportionate rate against black veniremembers.

8

Emphasis added.

20 SHIRLEY V. YATES

While this oral ruling was slightly more subtle than the

warning in Fernandez, its obvious effect was to put Van

Stralen on notice: if he struck the remaining black

veniremember, he would be required to give reasons for all

three strikes.

Additionally, Shirley’s prima facie case is supported by

a comparison9 between one of the black veniremembers who

was struck, R.O., and a white veniremember who was seated,

Juror Number 3. Both were in their early twenties and lived

at home with their parents. There was no readily apparent

reason to strike R.O. – as the district court noted, she “said

she was eager to be a juror and would follow the law

faithfully [and] also indicated that she had experience making

‘tough calls.’” While Juror Number 3 had attended but had

not (yet) graduated from college, and had a job that may have

involved somewhat more responsibility, they were certainly

similar enough – apart from race – to help support an

inference of discrimination at Batson Step One.10

9

Because Batson requires us to consider the relevant circumstances

surrounding a challenged peremptory strike, 476 U.S. at 96–97,

comparative juror analysis is “called for on appeal even when the trial

court ruled that the defendant failed to make a prima facie showing at the

first step of the Batson analysis.” Boyd v. Newland, 467 F.3d 1139, 1149

(9th Cir. 2004); see also Crittenden v. Ayers (Crittenden I), 624 F.3d 943,

956 (9th Cir. 2010) (concluding that the defendant made a prima facie

showing at Batson Step One based in part on a comparative juror

analysis).

10

Although Van Stralen’s asserted race-neutral reasons for striking R.O.

(i.e., his testimony at Step Two) would inform a comparative juror

analysis at Step Three, by specifying that he considered relevant particular

distinctions between R.O. and Juror Number 3, the distinctions are

irrelevant at the (precedent) Step One. See Fernandez, 286 F.3d at 1079

(“[W]e should not even consider the prosecutor’s unsubstantiated

SHIRLEY V. YATES 21

We agree with the district court that Shirley’s Step One

showing was “sufficient to permit the trial judge to draw an

inference that discrimination . . . occurred.” Johnson, 545

U.S. at 170.

2. Batson Step Two

Just as in Paulino II, in Shirley’s case the state court

applied the wrong legal framework and erroneously ended its

analysis after Step One; it never reached Steps Two and

Three of Shirley’s Batson claim. As a result, the prosecutor

was not afforded the opportunity to provide his actual reasons

for striking the veniremembers in question, and there could be

no reasoning or conclusion as to this critical question to

which we could defer under AEDPA. Paulino 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). Hence, the decision

we review here is that of the district court, which conducted

the inquiry that must be held at Step Two of Batson.

The district court properly ordered an evidentiary hearing

to take testimony from Van Stralen as to his reasons for the

explanations at the stage of determining whether a prima facie case

exists.”).

Strikingly, the trial court itself appears to have recognized as much,

as it described the strike of R.O. as “possibl[y] improper.” It failed to find

a prima facie case of discrimination, however, because it erroneously

believed that Shirley was required to show a “pattern of exercise of

improper peremptory challenges . . . .” Cf. Fernandez, 286 F.3d at 1078

(“A pattern of exclusionary strikes is not necessary for finding an

inference of discrimination. See United States v. Vasquez-Lopez, 22 F.3d

900, 902 (9th Cir. 1994) (‘[T]he Constitution forbids striking even a single

prospective juror for a discriminatory purpose.’)”).

22 SHIRLEY V. YATES

strikes of L.L. and R.O. Because this evidence – necessary to

adjudicate Steps Two and Three of Shirley’s Batson claim –

was absent from the state court record due not to any lack of

diligence on Shirley’s part but rather to the state court’s error,

28 U.S.C. § 2254(e)(2) did not bar an evidentiary hearing. See

Williams v. Taylor, 529 U.S. 420, 432 (2000). The bar to

evidentiary hearings established by Cullen v. Pinholster, 563

U.S. 170 (2011), was also inapplicable because the state

court’s decision is not entitled to deference under 28 U.S.C.

§ 2254(d)(1). Finn, 665 F.3d at 1069 n.1.

“[S]tep Two is an opportunity for the prosecution to

explain the real reason for [its] actions.” Yee v. Duncan, 463

F.3d 893, 899 (9th Cir. 2006). As we explained in Crittenden

v. Ayers (Crittenden I), 624 F.3d 943, 957–58 (9th Cir. 2010):

In the usual case, the Batson analysis takes

place during or shortly after jury selection. In

those cases, the prosecutor offers a

contemporaneous explanation for the strike at

step two. Where time has passed since the

jury selection, the prosecutor may offer an

explanation based on his present recollection

of his reasons for striking the juror. Where, as

here, time has passed and the prosecutor no

longer has a present recollection of his or her

reasons for striking the juror, the state may

offer an explanation based on circumstantial

evidence.

What counts as competent circumstantial evidence of the

prosecutor’s reasons for exercising peremptory strikes is an

open question: “Our circuit has not addressed whether a list

of standard considerations, absent affirmative evidence that

SHIRLEY V. YATES 23

they were used in the particular case in question, is competent

evidence of a prosecutor’s actual reasons for striking certain

jurors.” Paulino II, 542 F.3d at 701–02 n.10. Because this

question straddles the fairly muddy line between Batson’s

Steps Two and Three, we address it in two parts. First, we

consider whether such evidence is sufficient to meet the

state’s burden of production at Batson Step Two.11 In the next

section, we address a distinct question: how much weight

such evidence should be given in assessing whether the

defendant has carried his burden of persuasion at Step Three.

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

race-neutral reasons were the actual reasons for the

challenged strikes, and (2) offer some evidence which, if

credible, would support the conclusion that those reasons

were the actual reasons for the strikes.12 Id. at 699 (“Batson’s

step two requires evidence of the prosecutor’s actual reasons

for exercising her peremptory challenges.”).

This is a burden of production, not persuasion. In Purkett

v. Elem, the Supreme Court made clear that the state’s race-

neutral reason need not be “persuasive, or even plausible,” in

11

“At Batson’s second step, the question whether the state has offered

a race-neutral reason is a question of law that we review de novo.”

Paulino II, 543 F.3d at 699 (citation and internal quotation marks

omitted).

12

While a bald assertion by the state is inadequate, an assertion by a

prosecutor that he remembers striking a veniremember for a particular

reason is sufficient to meet the burden of production at Step Two, because

the prosecutor’s memory-based testimony is direct evidence which, if

believed, supports a finding that he actually exercised the strike for the

reason articulated. What the state must in any event produce at Step Two

is some evidence regarding the actual reasons for the prosecutor’s action

during voir dire, circumstantial or otherwise.

24 SHIRLEY V. YATES

order to suffice at this stage. 514 U.S. 765, 767 (1995) (per

curiam). Thus, whether the evidence in support of the reason

is credible or even whether it “makes sense” is to be

determined at Step Three. Id. at 768–69; see also Crittenden

I, 624 F.3d at 958 (“[R]egardless 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 explanation.”).

In this respect, it is necessary to bear in mind that the state

must offer some evidence of “a reason that does not deny

equal protection.” Purkett, 514 U.S. at 769. In Johnson, the

Supreme Court affirmed that for the purposes of Batson, “[i]t

does not matter that the prosecutor might have had good

reasons . . . ; what matters is the real reason [the

veniremembers] were stricken.” 545 U.S. at 172 (quoting

Paulino I, 371 F.3d at 1090 (alterations omitted)). An equal

protection violation has occurred if a black veniremember

was actually struck for a race-related reason, even if he could

have been struck for a race-neutral reason. Hence, the state

must offer evidence at Step Two which is probative of the

actual reason that a prosecutor exercised the strike at issue.

Evidence that a good reason for a strike existed is insufficient

in itself at Step Two.

Our cases reflect that voir dire transcripts may be relevant

to the Step Two inquiry in three different ways.13 First, a voir

dire transcript (like contemporaneous notes) may be used to

refresh a prosecutor’s recollection; upon reviewing it, he may

recall the actual reasons for his strikes. This sort of refreshed

13

Of course, even in the ordinary case in which a prosecutor gives his

non-discriminatory reasons contemporaneously, or remembers them at a

later hearing, the transcript from voir dire is virtually always important to

the Step Three determination.

SHIRLEY V. YATES 25

recollection is clearly sufficient for 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 and

still remain unable to remember his reasons for striking the

particular veniremembers at issue. He may then infer reasons

from the transcript and assert them, but that assertion must be

supported by circumstantial evidence that tends to show that

the asserted reasons were in fact the actual reasons for the

strikes. Such circumstantial evidence may consist of the

prosecutor’s jury selection notes or, as is the case here, his

typical or usual practices or approach to jury selection.14

Third, as in Paulino II, a prosecutor may offer “mere

speculation drawn from her reading of the voir dire

transcript.”15 542 F.3d 696. Such reasons have not been

“‘reconstructed,’ as that term is used in Batson cases; they

[have been] constructed out of whole cloth . . . [and are]

nothing more than guess[es] . . . .” Id. at 700. As we held,

“[n]o authority supports the State’s claim that pure

speculation qualifies as circumstantial evidence of the

prosecutor’s actual reasons, simply because it was the

prosecutor herself who offered the speculation during the

course of an evidentiary hearing.” Id. at 701. Although the

14

It is also possible that a transcript itself could contain circumstantial

evidence of the actual reasons for peremptory strikes. For example, a

prosecutor might have stated, on the record at trial, a reason for striking

a particular veniremember, such as in the context of an unsuccessful strike

for cause. As we acknowledged in Paulino II, 542 F.3d at 700 n.8, it is

also conceivable that a prosecutor’s questions at voir dire might be so

sharply focused on a particular issue that the transcript could offer strong

support for the conclusion that this was the actual basis for a strike. In this

case, however, the voir dire transcript is not so illuminating.

15

The prosecutor testified that she was “on the same page” as the judge

and the defense attorney – “all each could do was comment on the

transcript.” 542 F.3d at 696.

26 SHIRLEY V. YATES

sort of speculation contained in the third category is

insufficient to meet the state’s burden of production at Step

Two, the court must in any event proceed to Step Three,

because the “failure to provide an explanation for exercising

a strike does not relieve the trial court of its responsibility [at

step three] to make the ultimate determination of whether

there has been purposeful discrimination.” Paulino II, 542

F.3d at 702 (quoting Yee, 463 F.3d at 901). However, when

the state fails to meet its Step Two burden of production,

“there is no race-neutral evidence to weigh,” and the

defendant will prevail at Step Three of his Batson challenge

in almost all such cases. Paulino II, 542 F.3d at 703.

We hold that in the case before us the circumstantial

evidence falls in the second of the three categories discussed

above, and that the state has met its burden of production at

Batson Step Two. Where 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 review 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 general jury selection approach would have motivated

him to strike the veniremember for that reason, such

circumstantial evidence is sufficient for the limited purpose

of Step Two. Van Stralen’s testimony that he employed a

certain jury selection approach, and that employment of that

approach would have motivated the strikes he exercised at

Shirley’s trial, is relevant (to whatever degree) to the question

whether his asserted reasons for striking L.L. and R.O. were

his actual reasons for doing so.16 The inferential link

16

Another category of circumstantial evidence not available in this case

– contemporaneous notes – may provide far stronger evidence that an

asserted reason in fact motivated the strike of a long-since-forgotten

SHIRLEY V. YATES 27

resulting from evidence of a particular practice or approach

may be fairly strong or vanishingly weak; still, its strength or

weakness is a question for Step Three, see Purkett, 514 U.S.

at 767–69; Crittenden I, 624 F.3d at 958, at which Step the

answer may prove dispositive of the ultimate inquiry.

There are some limits to this proposition, however. In

Paulino II – which falls in the third category outlined above

– the state claimed that the prosecutor had “testified as to her

‘general principles’ of jury selection”17; but, we concluded

that because she admitted that she “was not sure which of

those general principles she considered in selecting the []

jury,” her “statement that she generally sought fair jurors but

did not really know what she considered in this particular

trial” amounted to “nothing more than a general assertion that

her actions were not racially motivated.”18 Id. The prosecutor

veniremember. Notes made during jury selection reflect the prosecutor’s

state of mind at the time. Although we may rely on his later testimony

(including any discussion of his general jury selection approach) as an

interpretive aid, the notes are likely to reveal actual concerns the

prosecutor had at trial. Prosecutors who do not retain notes from voir dire

run the risk that, as here, they will not be able to produce circumstantial

evidence of their actual reasons for exercising a strike.

17

The prosecutor in Paulino II did testify that she “generally . . . like[d]

jurors who have some good life experience” as well as “older jurors” and

“people who would be, of course, fair to all sides.” 542 F.3d at 701.

However, she, unlike Van Stralen, did not assert a belief that these

considerations motivated her strikes, but rather “offered hypothetical race-

neutral reasons” without stating that her jury selection approach was

responsible for her decision to exercise the strikes of specific

veniremembers. Id. at 696.

18

Just as protestations of colorblindness are not specific enough to be

credited as justification for peremptory strikes, Batson, 476 U.S. at 98 &

n.20, testimony as to a general approach of selecting jurors without

28 SHIRLEY V. YATES

supported her guesswork with inferences anyone might (or

might not) draw from the voir dire transcript, but, in failing

to relate her particular considerations to the strikes she

exercised, offered no evidence – direct or circumstantial –

that would lend support to an inference that the speculative

reasons were her actual reasons.19

Our holding is consistent with our analysis in Crittenden

I. We held there that the district court had not erred in

accepting evidence of the prosecutor’s general approach at

Step Two. 624 F.3d at 952–53, 958. However, Crittenden I

did not settle the question left open in Paulino II, because the

prosecutor also offered contemporaneous notes that strongly

supported the contention that the asserted reasons were the

actual reasons. Id.

attention to race would certainly be inadequate to meet the state’s burden

at Step Two.

19

In Paulino II, we cited with approval the Eleventh Circuit’s decision

in Bui v. Haley, 321 F.3d 1304 (11th Cir. 2003). Paulino II, 542 F.3d at

700–01. Bui involved testimony from an assistant prosecutor who had

observed jury selection at trial but had not conferred – either

contemporaneously or after the fact – with the lead prosecutor who

conducted it about his reasons for exercising the strikes. 321 F.3d at

1310–11. Based on her review of the voir dire transcript and her own

notes from trial, the assistant prosecutor offered “representations and

argument” as to the reasons for all but one of the challenged strikes. Id. at

1315. The court held, however, that although the assistant prosecutor had

asserted specific reasons, her evidence was not probative of “the reasons

[the lead prosecutor] had in mind when he made the strikes.” Id. By

contrast, Van Stralen’s testimony regarding his general approach, which

he says he applied at trial, is probative (how strongly remains to be

determined) of his state of mind at trial.

SHIRLEY V. YATES 29

In sum, Van Stralen’s testimony was sufficient to meet

the state’s burden of production at Step Two because he

credibly testified to a jury selection approach – persuasive or

unpersuasive, reasonable or unreasonable, plausible or

implausible, see Purkett, 514 U.S. at 767 – that supported his

asserted reasons for his challenged strikes. Nothing more was

required at this stage of the proceeding.

3. Batson Step Three

At Step Three, we hold that the district judge clearly erred

in denying Shirley’s Batson claim with respect to R.O.

largely on the basis of a comparative juror analysis with a

young white veniremember who was seated.20 The ultimate

question in Batson cases is “whether the defendant has

proven purposeful discrimination[, which] is a question of

fact that we review for clear error.” Paulino II, 542 F.3d at

699; see also Crittenden v. Chappell (Crittenden II), – F.3d

–, 2015 WL 6445531, at *5 (9th Cir. Oct. 26, 2015).

Although the district judge had just decided that Van

Stralen’s testimony was not probative of the actual reason for

his strikes, he then concluded that in light of the comparison

a challenge to R.O. could have been reasonable and that

therefore no Batson violation had occurred, stating that he

could “sort of see prosecutors wanting somebody who has got

an education.” The district judge did not, however, find that

20

We assume for purposes of this opinion that the district court was

correct to conclude that Shirley failed to carry his burden of showing that

Van Stralen’s strike of L.L. was discriminatory. In light of our decision

with respect to R.O., there is no need to decide that question. A Batson

violation with respect to one veniremember is sufficient to require

reversal. See Vasquez-Lopez, 22 F.3d at 902.

30 SHIRLEY V. YATES

Van Stralen actually struck R.O. for that reason.21 Again, “[i]t

does not matter that the prosecutor might have had good

reasons . . . ; what matters is the real reason [the

veniremembers] were stricken.” Johnson, 545 U.S. at 172

(quoting Paulino I, 371 F.3d at 1090 (alterations omitted)).

Because the district court failed to assess whether the

circumstantial evidence Van Stralen offered supported the

conclusion that his asserted, race-neutral reason for striking

R.O. was actually his reason for doing so and because the

court failed to make a finding as to the actual reason for the

challenge, the district court committed clear error. We now

proceed to examine the record to “determine whether the

actual reason for the strike violated the defendant’s equal

protection rights.” Yee, 463 F.3d at 899.

“[A] defendant opposing a peremptory challenge bears

the ultimate burden of proving the challenge was improper[,]”

id. at 895; he must carry this burden by a preponderance of

the evidence, Paulino II, 542 F.3d at 702. Along with the

statistical evidence showing that black veniremembers were

disproportionately struck, we weigh the persuasiveness of the

21

Had we agreed with the district court’s conclusion regarding the

question left open in Paulino II and its related ruling that the state had

failed to meet its burden at Step Two, we would have held that the district

court erred when it stated at Step Three that there was “no evidence one

way or the other, as I consider it to be evidence, on step 2.” This is an

incorrect statement of the law – a failure to produce competent evidence

at Step Two, whether due to a failure of memory or otherwise, is

affirmative evidence of discrimination. See Paulino II, 542 F.3d at 703

(“Where the state fails to meet its burden of production, the evidence

before the district court at step three – the prima facie showing plus the

evidence of discrimination drawn from the state’s failure to produce a

reason – will establish purposeful discrimination by a preponderance of

the evidence in most cases. Indeed, in such cases, there is no race-neutral

evidence to weigh.”).

SHIRLEY V. YATES 31

state’s evidence as to the prosecutor’s proffered, race-neutral

reasons, and any other relevant factors.22

At Step Three, if a trial judge determines that a

prosecutor’s explanation is credible, that may well be the end

of the inquiry, but only if the prosecutor has asserted that

specific race-neutral reasons were in fact his actual reasons

for the strike. In this case, when the district court determined

that Van Stralen was credible, all the credited testimony could

establish was that the jury selection approach to which Van

Stralen testified was “in fact” his general approach. It

remained to be determined how much support this

circumstantial evidence actually provided for the conclusion

that the race-neutral reasons he offered in fact motivated the

particular strike.

At Step Three, we hold that the district court clearly erred

in finding that Shirley had not met his burden of showing

discrimination by a preponderance of the evidence with

respect to the strike of R.O., a question the district judge

repeatedly said was “very close.” We so hold not because we

disbelieve the testimony offered by Van Stralen, but because,

although Van Stralen’s approach to jury selection falls within

a category of circumstantial evidence sufficient to meet the

burden of production at Step Two, the particular showing the

state made here provides too little support for its contention

that Van Stralen actually struck R.O. for the reason posited.

22

The only factor the state identifies not otherwise addressed here is that

Van Stralen’s questioning of the veniremembers whose strikes are at issue

was not desultory. True – but while such questioning (or differential

questioning) of minority veniremembers would offer significant support

for a finding of discrimination, its absence – as in most Batson cases

granting relief – is not especially noteworthy.

32 SHIRLEY V. YATES

A.

Circumstantial evidence of a prosecutor’s general jury

selection approach is adequate at Step Two, but it deserves

little if any weight at Step Three when it describes only a

vague general preference as to the type of jurors the

prosecutor finds most desirable – e.g., “things that I would

like to see in a prospective juror” – rather than the types of

veniremembers the prosecutor customarily strikes. Nor does

the fact that the absence of such ideal qualifications is a

negative factor tell us much about a prosecutor’s practices

with respect to actually making strikes.

Circumstantial evidence regarding a prosecutor’s

approach to jury selection in cases in which the prosecutor

does not recall the specific challenge or the reasons therefor

suffers generally from several weaknesses. First, the evidence

is not contemporaneous – i.e., generated during jury

selection.23 The Supreme Court has emphasized the

importance of the contemporaneous airing of justifications,

which helps to avoid the “risks of imprecision and distortion

from the passage of time.” Miller-El v. Cockrell (Miller-El I),

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

reasons on the spot will not have time to review a transcript

to select a reason that is supported by the record (and was

consistently applied). Van Stralen testified about his approach

eight years after the fact, and after reviewing the reasons the

state court had decided were warranted by the record and

would have been good enough. Second, prosecutorial

approach evidence is not specific to the particular trial and

23

We do not consider here the weight to be accorded to a prosecutor’s

jury selection notes, but limit our analysis to cases involving jury selection

practices or approaches.

SHIRLEY V. YATES 33

particular strike at issue. Batson itself makes clear that lest

the promise of equal protection become a “vain and illusory

requirement,” a prosecutor must offer not “general

assertions” but rather a “neutral explanation 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 he “approach[ed] jury selection . . . in the same

fashion for many, many years, including during this period of

time.”

Third, even if the circumstantial evidence credibly

demonstrates that a general jury selection approach was

actually employed at a given trial, it is possible that another

extraneous factor – race or something else – motivated a

particular strike, at least in substantial part. As we explained

in Crittenden I, “the proper analysis at Batson’s step three is

whether the peremptory strike was ‘motivated in substantial

part’ by race. If it was so motivated, the petition is to be

granted regardless of whether the strike would have issued if

race had played no role.” 624 F.3d at 958–59 (quoting Cook

v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010)). When a

prosecutor testifies that he recalls striking a black

veniremember because he prefers jurors who are older and

this veniremember was young, he is implicitly attesting that

he recalls striking the veniremember for that reason and not

for others such as race. But when the prosecutor does not

remember the strike, evidence that he prefers older jurors tells

us only that this consideration may have played some role in

his selection decision, and says next to nothing about whether

other, illicit, factors also motivated the strike.

As this case illustrates, approaches to jury selection fall

along a spectrum: at one end are practices of regularly

striking veniremembers who have a certain objectively-

34 SHIRLEY V. YATES

defined characteristic; at the other end are vague preferences

for or against jurors with more or less of a particular

subjective attribute. For example, a prosecutor may testify

that if a veniremember has not graduated from high school,

he will usually strike him on that basis alone – a regular

practice – or he may testify that he likes jurors who “got a

good education” – a mere preference for an experience only

vaguely defined. Weaker still is evidence of a general

preference for jurors with an undefined characteristic or set

of experiences, such as that which the prosecutor described

here – “life experience.”

Because evidence of a prosecutor’s approach to jury

selection logically supports his asserted reason for a strike

only to the extent we can conclude that it motivated a

particular strike, only a practice of regularly striking

veniremembers with specific traits, characteristics, or similar

disqualifying features or attributes, can ordinarily provide

persuasive evidence that an asserted reason for a strike was

the actual reason for its exercise.24 If a prosecutor simply

says that he generally prefers educated jurors or jurors with

adequate job experience but does not remember the strike

itself, it will be impossible to ascertain – as we must –

whether this preference played any role in the decision to

strike a particular veniremember and, even if it played some

role, whether it was a determinative one. Nor can we

determine with any degree of confidence whether the strike

would have been exercised if the veniremember had been

white instead of black. In short, a general approach to what

constitutes preferred jurors, standing alone, affords us no way

24

Accord Polk v. Dixie Ins. Co., 972 F.2d 83, 84–85 (5th Cir. 1992) (per

curiam) (crediting testimony that a particular factor was the “turning factor

in every [jury selection] decision . . . in every case”).

SHIRLEY V. YATES 35

to determine with respect to a particular strike the importance

of the fact that the veniremember had not attended college

and instead proceeded straight to the business of earning a

living, or that he had worked for three years in a retail store

as compared to five as an auto mechanic. Indeed, a general

preference cannot tell us in what circumstances a prosecutor

would strike a veniremember for falling short of his ideal.

The value of the juror-preference type of evidence is at its

nadir when the prosecutor expresses his preference in terms

as startlingly vague and subjective as Van Stralen’s stated

desire for jurors “who ha[ve] been around, done some things,

. . . been in different situations, met different people.” Such

a preference tells us only whether the juror meets all the

prosecutor’s highest aspirations, not how to assess the value

of the “things” a given venireperson has “done,” nor, most

important, in what circumstances the absence of these

“things” would cause the prosecutor to exercise a strike. Van

Stralen’s testimony that he is certain – though he cannot

recall – that a particular veniremember lacked such “things,”

and that he struck her for that reason, constitutes an 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 regular

practice of striking veniremembers – and to serve as

persuasive circumstantial evidence – are those least likely to

be pretextual; such practices will ordinarily be concrete and

motivated by a patently legitimate purpose. Regular practices

of striking veniremembers are likely to apply to clear-cut

36 SHIRLEY V. YATES

cases that pose little risk of post-hoc rationalization.25

Moreover, it is likely that it will be evident from a review of

the transcript whether such practices are consistently applied.

By contrast, it will often be impossible to tell whether and to

what extent a general preference motivated a particular strike,

especially a vague preference, such as one for jurors with

“life experience.”26 This difficulty in telling what role, if any,

25

In Green v. Travis, then-Judge Sotomayor considered a case in which

the prosecutor “had little to no independent recollection of the

characteristics or comments of any of the venirepersons” and had no notes

regarding one of the five challenged strikes, but explained that she had a

practice of striking veniremembers who demonstrated that they would

have difficulty “understand[ing] evidence” and, in particular, “assessing

witness credibility.” 414 F.3d 288, 293, 300–01 (2d Cir. 2005). She was

especially concerned about striking veniremembers who might be

reluctant to rely on one witness’ testimony to convict in drug cases (like

Green’s), “because drug prosecutions often depend on the testimony of

one witness.” Id. at 300–01. The voir dire transcript reflected that when

the veniremember at issue was asked how she would judge witness

credibility, she replied only “evidence”; furthermore, her “description of

how she went about determining whether her son was lying to her” called

into serious question her ability to serve in her role as a juror. Id. at 293.

The court held that the district court had not erred in accepting this reason

at both Steps Two and Three. Id. at 301. This prosecutor had a regular

practice – she testified not that she preferred more thoughtful jurors, but

that she struck veniremembers who demonstrated that they would have

difficulty assessing witness credibility. Furthermore, she linked this

(patently legitimate) practice to particular statements the veniremember

made during voir dire.

26

Vague preferences are particularly likely to conceal implicit bias, as

the district judge – to his credit – recognized. Prosecutors might well

conceive of “life experience” in ways that have a profoundly disparate

impact on members of different racial groups. Young black people may

be less likely to enroll in college than young white people, but this can

hardly be taken to signify that the average young black person has less

“life experience” than the average young white person. Moreover, a vague

preference may be more likely to play a part in a prosecutor’s decision to

SHIRLEY V. YATES 37

a general preference played in the strike may frequently be

resolved by the prosecutor’s contemporaneous notes.

With the distinction in mind between a practice of striking

veniremembers with particular specific attributes and a

preference for jurors with general types of experiences, we

turn to evaluating the circumstantial evidence Van Stralen

offered in the district court.

B.

Van Stralen gave two reasons for striking L.L.: her

criminal conviction and her possible acquaintance with the

defendant and a relative of his. He testified that in striking

L.L., he followed a regular practice because an adult criminal

conviction was a “deal breaker.” The transcript shows that

L.L. was convicted of a crime as an adult – a clear and

specific factor on the basis of which Van Stralen consistently

exercised strikes. Hence, the circumstantial evidence of his

regular practice provided significant support for the

strike a veniremember who is black than it would if that juror were white,

if the prosecutor is motivated to a substantial degree by racial bias.

It is true (and most unfortunate) that Batson is not designed to root out

implicit bias, as Justices Breyer and Marshall, along with one of our

colleagues in the Northern District of Iowa, have discussed in some depth.

See Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 267–68 (2005)

(Breyer, J., concurring) (citing Batson, 476 U.S. at 106 (Marhsall, J.,

concurring)); Mark W. Bennett, “Unraveling the Gordian Knot of Implicit

Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the

Failed Promise of Batson, and Proposed Solutions,” 4 Harv. L. & Pol’y

Rev. 149 (2010). However, the risk of implicit bias is acutely relevant

when considering circumstantial evidence of the sort at issue here, because

a prosecutor’s jury selection approach offers no support at all for the

state’s case if it is not consistently employed in a race-neutral fashion.

38 SHIRLEY V. YATES

conclusion that Van Stralen struck L.L. because of her

conviction. Although we need not decide here the validity of

L.L.’s strike, it provides a clear contrast to the strike of R.O.

The preference Van Stralen expressed, for “jurors who

have life experience . . . well, a person basically who has been

around, done some things, who’s been in different situations,

met different people,” is far from describing a regular

practice with regard to strikes and is, to the contrary,

extremely vague. That Van Stralen “like[s] to see jurors who

have life experience” cannot in itself support the conclusion

that he struck R.O. for that reason. It is far from evident from

the transcript that R.O. had so little life experience that this

preference was a significant, much less determinative, factor

in Van Stralen’s decision to strike her27 and he did not testify

27

In the course of this discussion, Van Stralen mentioned, among other

things, that R.O. “had not gone off to college.” If Van Stralen had instead

testified that he employed a categorical practice of striking veniremembers

who had not attended college, this would have been suspect. In

Hernandez, the Supreme Court held:

“[A]n invidious discriminatory purpose may often be

inferred from the totality of the relevant facts, including

the fact, if it is true, that the [classification] bears more

heavily on one race than another.” If a prosecutor

articulates a basis for a peremptory challenge that

results in the disproportionate exclusion of members of

a certain race, the trial judge may consider that fact as

evidence that the prosecutor’s stated reason constitutes

a pretext for racial discrimination.

500 U.S. at 363 (quoting Washington v. Davis, 426 US. 229, 242 (1976)).

If an inference of discrimination can be drawn when a prosecutor testifies

that he struck a particular veniremember on a basis which, if applied

universally, would result in disproportionate strikes of minority

veniremembers, that same inference is inescapable when a prosecutor

SHIRLEY V. YATES 39

that he had any such practice. Instead, Van Stralen suggested

that a lack of life experience was a negative factor in his

overall review of jurors’ qualifications. This contrasts with

his typical practice of striking jurors whose adult criminal

convictions he considered deal breakers. Because Van

Stralen’s testimony established at best that he may have

considered life experience in deciding whether to strike R.O.,

and not that he actually based his decision to strike her on that

ground, his testimony provides little support for his assertion

(which was based only on an inference) that this was his

actual reason for striking R.O.

C.

The comparative juror analysis does not aid the state’s

case; actually, the comparison between R.O. and Juror

Number 3, on which the district court so heavily relied, cuts

in Shirley’s favor. The purpose of comparative juror analysis

is largely to test for consistency. If a prosecutor states that his

reason for striking a veniremember was that she 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 jurors permitted to serve also

had criminal records. When, however, the prosecutor merely

states that he believes he struck a veniremember because he

has a preference for jurors with “life experience,” and that

upon his review of the transcript it looks to him like she had

less of it than another juror he permitted to serve, the

comparison is less probative.

informs the court that he in fact does have a consistent practice of striking

veniremembers on that basis.

40 SHIRLEY V. YATES

The comparative juror analysis here shows that a white

juror with a very similar level of “life experience” was seated.

Van Stralen explained his reason for striking R.O. by

identifying indications in the transcript of her limited “life

experience,” focusing largely on her youth and also

emphasizing that she had not left home. Juror Number 3 was

approximately the same age and likewise had not left home.

Although Van Stralen stated that Juror Number 3 was

enrolled in college at “Sac State” and worked as a gym

manager while R.O. had not taken college courses and

worked as a photography technician at a pharmacy, these

differences were, for purposes of Batson, minor.28 Moreover,

R.O. explained that she was enthusiastic about serving and

would readily follow the evidence, while Juror Number 3 said

that he preferred not to serve and did not have the ability to

follow the trial with his full attention. As in Miller-El II,

there were “strong similarities as well as some differences.”

There will of course always be at least some 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 slight and actually favored R.O. They do not

support the state’s claims.

V. Conclusion

Our opinion addresses a narrow set of Batson cases in

which the prosecutor cannot actually remember the reason

28

Van Stralen described Juror Number 3’s education and job experience

as “positive” because they showed “initiative,” “intelligence,” “decision-

making,” and that he “had something going for him.” But he did not assert

that R.O. lacked those qualities. Similarly, while Van Stralen suggested

Juror Number 3 might have a favorable view of law enforcement, he did

not contend that R.O. did not also have a positive view.

SHIRLEY V. YATES 41

why he struck the veniremembers. In such cases, we hold

that if a prosecutor testifies both to his general jury selection

approach 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 Batson Step Two.

Nevertheless, we also hold that this evidence alone will

seldom be enough at Step Three to overcome a prima facie

case unless the prosecutor has a regular practice of striking

veniremembers who possess an objective characteristic that

may be clearly defined. That a veniremember (allegedly)

lacks a certain je ne sais quoi that the prosecutor prefers is

simply not enough. Here, the district court incorrectly found

that Van Stralen had not met the state’s burden of production

at Step Two. More significantly, the district court clearly

erred in denying Shirley’s claim at Step Three on the basis of

a juror comparison and its view that the reason Van Stralen

proffered could have been a good reason for striking R.O.

The district judge did not determine whether Van Stralen had

offered circumstantial evidence sufficient to support the

inference that he actually struck R.O. for the reason

proffered.

Shirley’s prima facie evidence of discrimination was met

with only a lengthy statement that Van Stralen “liked to see

jurors who have life experience.” His vague, general

preference – as opposed to a regular practice of striking

veniremembers for a specific reason – constituted at most an

inclination towards jurors with highly indefinite attributes or

qualities. A vague approach to jury selection may constitute

sufficient circumstantial evidence for purposes of Step Two,

but, in a case in which the prosecutor does not recall his

actual reason for striking the juror in question, it provides

little or no probative support for a conclusion at Step Three

that he struck her for the reason he proffered. Nor does a

42 SHIRLEY V. YATES

comparative juror analysis help the state’s case here. Thus,

Shirley’s evidence was sufficient to carry his burden of

showing that the strike of R.O was motivated in substantial

part by race.

We therefore reverse the decision of the district court and

remand with instructions to grant the writ unless the state

elects to retry Shirley within a reasonable amount of time.

REVERSED and REMANDED.