# Miller-El v. Dretke > Supreme Court of the United States · June 13, 2005 · 545 U.S. 231 URL: https://www.frixlaw.com/law-library/cases/799976 ## Case - **Full name:** Miller-El v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division - **Court:** Supreme Court of the United States - **Decided:** June 13, 2005 - **Citations:** 545 U.S. 231; 18 Fla. L. Weekly Fed. S 376; 73 U.S.L.W. 4479; 125 S. Ct. 2317; 162 L. Ed. 2d 196; 2005 U.S. LEXIS 4658 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Souter, Breyer, Thomas, Scalia - **Cited by:** 1,689 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/799976 ## How later opinions describe it (automated extraction) - holding that the prosecutor's race neutral reasons for exercising peremptory strikes were pretextual where the prosecutors not only marked jurors' races on juror cards, but also struck ten black jurors, at least two of whom were struck for illegitimate reasons; shuffled the ju… - holding that the state court’s acceptance of the prosecutor’s explanation for striking ten of the eleven qualified black venire persons was shown to be erroneous by clear and convincing evidence, including the prosecution’s use of the “jury shuffle,” disparate venire questions… - finding that although the State provided a racially neutral reason for peremptorily striking black jurors, the State=s decision to: (1) strike 91% of the eligible black veniremembers; (2) seek a jury shuffle when a predominant number of blacks were seated in the front of the p… - holding that the striking of black jurors was pretextual and Miller-El was entitled to prevail on his Batson claim based on evidence of discrimination which was initially presented at a Swain hearing, ie., a pretrial hearing to determine whether there was evidence indicating a… - stating that while the “Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection violates the Equal Protection Clause,” “[t]he rub has been the practical difficulty of ferreting out discrimination in selections discretionary by… ## Opinion text (Slip Opinion) OCTOBER TERM, 2004 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MILLER-EL v. DRETKE, DIRECTOR, TEXAS DEPART- MENT OF CRIMINAL JUSTICE, CORRECTIONAL IN- STITUTIONS DIVISION CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 03–9659. Argued December 6, 2004—Decided June 13, 2005 When Dallas County prosecutors used peremptory strikes against 10 of the 11 qualified black venire members during jury selection for peti- tioner Miller-El’s capital murder trial, he objected, claiming that the strikes were based on race and could not be presumed legitimate since the District Attorney’s Office had a history of excluding blacks from criminal juries. The trial court denied his request for a new jury, and his trial ended with a death sentence. While his appeal was pending, this Court decided, in Batson v. Kentucky, 476 U. S. 79, that discrimination by a prosecutor in selecting a defendant’s jury violated the Fourteenth Amendment. On remand, the trial court reviewed the voir dire record, heard prosecutor Macaluso’s justifications for the strikes that were not explained during voir dire, and found no show- ing that prospective black jurors were struck because of their race. The State Court of Criminal Appeals affirmed. Subsequently, the Federal District Court denied Miller-El federal habeas relief, and the Fifth Circuit denied a certificate of appealability. This Court re- versed, finding that the merits of Miller-El’s Batson claim were, at least, debatable by jurists of reason. Miller-El v. Cockrell, 537 U. S. 322. The Fifth Circuit granted a certificate of appealability but re- jected Miller-El’s Batson claim on the merits. Held: Miller-El is entitled to prevail on his Batson claim and, thus, en- titled to habeas relief. Pp. 3–33. (a) “[T]his Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause.” Georgia v. McCollum, 505 U. S. 42, 44. The rub 2 MILLER-EL v. DRETKE Syllabus has been the practical difficulty of ferreting out discrimination in se- lections discretionary by nature and subject to a myriad of legitimate influences. The Batson Court held that a defendant can make out a prima facie case of discriminatory jury selection by “the totality of the relevant facts” about a prosecutor’s conduct during the defendant’s own trial. 476 U. S., at 94. Once that showing is made, the burden shifts to the State to come forward with a neutral explanation, id., at 97, and the trial court must determine if the defendant has shown “purposeful discrimination,” id., at 98, in light of “all relevant cir- cumstances,” id., at 96–97. Since this case is on review of a denial of habeas relief under 28 U. S. C. §2254, and since the Texas trial court’s prior determination that the State’s race-neutral explanations were true is a factual determination, Miller-El may obtain relief only by showing the trial court’s conclusion to be “an unreasonable deter- mination of the facts in light of the evidence presented in the State court proceeding,” §2254(e)(1). Pp. 3–6. (b) The prosecutors used peremptory strikes to exclude 91% of the eligible black venire panelists, a disparity unlikely to have been pro- duced by happenstance. Miller-El v. Cockrell, 537 U. S, at 342. More powerful than the bare statistics are side-by-side comparisons of some black venire panelists who were struck and white ones who were not. If a prosecutor’s proffered reason for striking a black pan- elist applies just as well to a white panelist allowed to serve, that is evidence tending to prove purposeful discrimination. The details of two panel member comparisons bear out this Court’s observation, id., at 343, that the prosecution’s reason for exercising peremptory strikes against some black panel members appeared to apply equally to some white jurors. There are strong similarities and some differ- ences between Billy Jean Fields, a black venireman who expressed unwavering support for the death penalty but was struck, and simi- larly situated nonblack jurors; but the differences seem far from sig- nificant, particularly when reading Fields’s voir dire testimony in its entirety. Upon that reading, Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecu- tors’ explanations for the strike, that Fields would not vote for death if rehabilitation were possible, a mischaracterization of his testi- mony, cannot reasonably be accepted when there were nonblack veni- remen expressing comparable views on rehabilitation who were not struck. The prosecution’s reason that Fields’s brother had prior con- victions is not creditable in light of its failure to enquire about the matter. The prosecution’s proffered reasons for striking Joe Warren, another black venireman, are comparably unlikely. The fact that the reason for striking him, that he thought death was an easy way out and defendants should be made to suffer more, also applied to non- Cite as: 545 U. S. ____ (2005) 3 Syllabus black panel members who were selected is evidence of pretext. The suggestion of pretext is not, moreover, mitigated by Macaluso’s ex- planation that Warren was struck when the State could afford to be liberal in using its 10 remaining peremptory challenges. Were that the explanation for striking Warren and later accepting similar panel members, prosecutors would have struck white panel member Jen- kins, who was examined and accepted before Warren despite her similar views. Macaluso’s explanation also weakens any suggestion that the State’s acceptance of Woods, the one black juror, shows that race was not in play. When he was selected as the eighth juror, the State had used 11 of its 15 peremptory challenges, 7 on black panel members; and the record shows that at least 3 of the remaining ve- nire panel opposed capital punishment. Because the prosecutors had to exercise prudent restraint, the late-stage decision to accept a black panel member willing to impose the death penalty does not neutral- ize the early-stage decision to challenge a comparable venireman, Warren. The Fifth Circuit’s substituted reason for the elimination, Warren’s general ambivalence about the penalty, was erroneous as a matter of fact and law. As to fact, Macaluso said nothing about gen- eral ambivalence, and Warren’s answer to several questions was that he could impose the death penalty. As for law, the Batson rule pro- vides the prosecutor an opportunity to give the reason for striking a juror and requires the judge to assess the reason’s plausibility in light of all of the evidence, but it does not does not call for a mere ex- ercise in thinking up any rational basis. Because a prosecutor is re- sponsible for the reason he gave, the Fifth Circuit’s substitution of a reason for excluding Warren does nothing to satisfy the prosecutors’ burden of stating a racially neutral explanation for their own actions. Comparing Warren’s strike with the treatment of panel members with similar views supports a conclusion that race was significant in determining who was challenged and who was not. Pp. 6–19. (c) The prosecution’s broader patterns of practice during jury selec- tion also support the case for discrimination. Texas law permits ei- ther side to shuffle the cards bearing panel member names to rear- range the order in which they are questioned. Members seated in the back may escape voir dire, for those not questioned by the end of each week are dismissed. Here, the prosecution shuffled the cards when a number of black members were seated at the front of the panel at the beginning of the second week. The third week, they shuffled when the first four members were black, placing them in the back. After the defense reshuffled the cards, and the black members reappeared in the front, the court denied the prosecution’s request for another shuffle. No racially neutral reason for the shuffling has ever been of- fered, and nothing stops the suspicion of discriminatory intent from 4 MILLER-EL v. DRETKE Syllabus rising to an inference. The contrasting voir dire questions posed re- spectively to black and nonblack panel members also indicate that the State was trying to avoid black jurors. Prosecutors gave a bland description of the death penalty to 94% of white venire panel mem- bers before asking about the individual’s feelings on the subject, but used a script describing imposition of the death penalty in graphic terms for 53% of the black venire members. The argument that prosecutors used the graphic script to weed out ambivalent panel members simply does not fit the facts. Black venire members were more likely to receive that script regardless of their expressions of certainty or ambivalence about the death penalty, and the State’s chosen explanation failed for four out of the eight black panel mem- bers who received it: two received it after clearly stating their opposi- tion to the death penalty and two received it even though they unam- biguously favored that penalty. The State’s explanation misses the mark four out of five times with regard to the nonblacks who received the graphic description. Ambivalent black panel members were also more likely to receive the graphic script than nonblack ambivalent ones. The State’s attempt at a race-neutral rationalization fails to explain what the prosecutors did. The explanation that the prosecu- tors’ first object was to use the graphic script to make a case for ex- cluding black panel members opposed to, or ambivalent about, the death penalty is more persuasive than the State’s explanation, and the reasonable inference is that race was the major consideration when the prosecution chose to follow the graphic script. The same is true for another kind of disparate questioning. The prosecutors asked all black panel members opposed to, or ambivalent about, the death penalty how low a sentence they would consider imposing for murder without telling them that the State requires a 5-year mini- mum, but prosecutors did not put that question to most white panel members who had expressed similar views. The final body of evidence confirming the conclusion here is that the Dallas County District At- torney’s Office had, for decades, followed a specific policy of system- atically excluding blacks from juries. The Miller-El prosecutors’ notes of the race of each panel member show that they took direction from a jury selection manual that included racial stereotypes. Pp. 19–31. (d) The Fifth Circuit’s conclusion that Miller-El failed to show by clear and convincing evidence that the state court’s no-discrimination finding was wrong is as unsupportable as the “dismissive and strained interpretation” of his evidence that this Court disapproved when deciding that he was entitled to a certificate of appealability, Miller-El, supra, at 344. Ten of the eleven black venire members were peremptorily struck. At least two of them were ostensibly ac- Cite as: 545 U. S. ____ (2005) 5 Syllabus ceptable to prosecutors seeking the death penalty. The prosecutors’ chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion. The selection process was replete with evidence that prosecutors were se- lecting and rejecting potential jurors because of race. And the prose- cutors took their cues from a manual on jury selection with an em- phasis on race. It blinks reality to deny that the State struck Fields and Warren because they were black. The facts correlate to nothing as well as to race. The state court’s contrary conclusion was unrea- sonable as well as erroneous. Pp. 32–33. 361 F. 3d 849, reversed and remanded. SOUTER, J., delivered the opinion of the Court, in which STEVENS, O’CONNOR, KENNEDY, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined. Cite as: 545 U. S. ____ (2005) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 03–9659 _________________ THOMAS JOE MILLER-EL, PETITIONER v. DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 13, 2005] JUSTICE SOUTER delivered the opinion of the Court. Two years ago, we ordered that a certificate of appeal- ability, under 28 U. S. C. §2253(c), be issued to habeas petitioner Miller-El, affording review of the District Court’s rejection of the claim that prosecutors in his capi- tal murder trial made peremptory strikes of potential jurors based on race. Today we find Miller-El entitled to prevail on that claim and order relief under §2254. I In the course of robbing a Holiday Inn in Dallas, Texas in late 1985, Miller-El and his accomplices bound and gagged two hotel employees, whom Miller-El then shot, killing one and severely injuring the other. During jury selection in Miller-El’s trial for capital murder, prosecu- tors used peremptory strikes against 10 qualified black venire members. Miller-El objected that the strikes were based on race and could not be presumed legitimate, given a history of excluding black members from criminal juries by the Dallas County District Attorney’s Office. The trial 2 MILLER-EL v. DRETKE Opinion of the Court court received evidence of the practice alleged but found no “systematic exclusion of blacks as a matter of policy” by that office, App. 882–883, and therefore no entitlement to relief under Swain v. Alabama, 380 U. S. 202 (1965), the case then defining and marking the limits of relief from racially biased jury selection. The court denied Miller-El’s request to pick a new jury, and the trial ended with his death sentence for capital murder. While an appeal was pending, this Court decided Batson v. Kentucky, 476 U. S. 79 (1986), which replaced Swain’s threshold requirement to prove systemic discrimination under a Fourteenth Amendment jury claim, with the rule that discrimination by the prosecutor in selecting the defendant’s jury sufficed to establish the constitutional violation. The Texas Court of Criminal Appeals then remanded the matter to the trial court to determine whether Miller-El could show that prosecutors in his case peremptorily struck prospective black jurors because of race. Miller-El v. State, 748 S. W. 2d 459 (1988). The trial court found no such demonstration. After reviewing the voir dire record of the explanations given for some of the challenged strikes, and after hearing one of the prosecutors, Paul Macaluso, give his justification for those previously unexplained, the trial court accepted the stated race-neutral reasons for the strikes, which the judge called “completely credible [and] sufficient” as the grounds for a finding of “no purposeful discrimination.” Findings of Fact and Conclusions of Law Upon Remand from the Court of Criminal Appeals in State v. Miller-El, No. 8668–NL (5th Crim. Dist. Ct., Dallas County, Tex., Jan. 13, 1989), pp. 5–6, App. 928–929. The Court of Criminal Appeals affirmed, stating it found “ample sup- port” in the voir dire record for the race-neutral explana- tions offered by prosecutors for the peremptory strikes. Miller-El v. State, No. 69,677 (Sept. 16, 1992) (per curiam), p. 2, App. 931. Cite as: 545 U. S. ____ (2005) 3 Opinion of the Court Miller-El then sought habeas relief under 28 U. S. C. §2254, again pressing his Batson claim, among others not now before us. The District Court denied relief, Miller-El v. Johnson, Civil No. 3:96–CV–1992–H (ND Tex., June 5, 2000), App. 987, and the Court of Appeals for the Fifth Circuit precluded appeal by denying a certificate of ap- pealability, Miller-El v. Johnson, 261 F. 3d 445 (2001). We granted certiorari to consider whether Miller-El was entitled to review on the Batson claim, Miller-El v. Cockrell, 534 U. S. 1122 (2002), and reversed the Court of Appeals. After examining the record of Miller-El’s exten- sive evidence of purposeful discrimination by the Dallas County District Attorney’s Office before and during his trial, we found an appeal was in order, since the merits of the Batson claim were, at the least, debatable by jurists of reason. Miller-El v. Cockrell, 537 U. S. 322 (2003). After granting a certificate of appealability, the Fifth Circuit rejected Miller-El’s Batson claim on the merits. 361 F. 3d 849 (2004). We again granted certiorari, 542 U. S. 936 (2004), and again we reverse. II A “It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.” Strauder v. West Virginia, 100 U. S. 303, 309 (1880); see also Batson v. Kentucky, supra, at 86. Defendants are harmed, of course, when racial discrimination in jury selection compromises the right of trial by impartial jury, Strauder v. West Vir- ginia, supra, at 308, but racial minorities are harmed more generally, for prosecutors drawing racial lines in picking juries establish “state-sponsored group stereotypes rooted in, and reflective of, historical prejudice,” J. E. B. v. 4 MILLER-EL v. DRETKE Opinion of the Court Alabama ex rel. T. B., 511 U. S. 127, 128 (1994). Nor is the harm confined to minorities. When the gov- ernment’s choice of jurors is tainted with racial bias, that “overt wrong . . . casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial . . . .” Powers v. Ohio, 499 U. S. 400, 412 (1991). That is, the very integrity of the courts is jeopardized when a prosecutor’s discrimination “invites cynicism respecting the jury’s neutrality,” id., at 412, and undermines public confidence in adjudication, Georgia v. McCollum, 505 U. S. 42, 49 (1992); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 628 (1991); Batson v. Ken- tucky, supra, at 87. So, “[f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause.” Georgia v. McCollum, supra, at 44; see Strauder v. West Virginia, supra, at 308, 310; Norris v. Alabama, 294 U. S. 587, 596 (1935); Swain v. Alabama, supra, at 223–224; Batson v. Kentucky, supra, at 84; Powers v. Ohio, supra, at 404. The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected. In Swain v. Alabama, we tackled the prob- lem of “the quantum of proof necessary” to show purpose- ful discrimination, 380 U. S., at 205, with an eye to pre- serving each side’s historical prerogative to make a peremptory strike or challenge, the very nature of which is traditionally “without a reason stated,” id., at 220. The Swain Court tried to relate peremptory challenge to equal protection by presuming the legitimacy of prosecutors’ strikes except in the face of a longstanding pattern of discrimination: when “in case after case, whatever the circumstances,” no blacks served on juries, then “giving even the widest leeway to the operation of irrational but Cite as: 545 U. S. ____ (2005) 5 Opinion of the Court trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge [were] being perverted.” Id., at 223–224. Swain’s demand to make out a continuity of discrimina- tion over time, however, turned out to be difficult to the point of unworkable, and in Batson v. Kentucky, we recog- nized that this requirement to show an extended pattern imposed a “crippling burden of proof” that left prosecutors’ use of peremptories “largely immune from constitutional scrutiny.” 476 U. S., at 92–93. By Batson’s day, the law implementing equal protection elsewhere had evolved into less discouraging standards for assessing a claim of pur- poseful discrimination, id., at 93–95 (citing, e.g., Washing- ton v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977)), and we accordingly held that a defendant could make out a prima facie case of discriminatory jury selec- tion by “the totality of the relevant facts” about a prosecu- tor’s conduct during the defendant’s own trial. Batson v. Kentucky, 476 U. S., at 94, 96. “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging . . . jurors” within an arguably targeted class. Id., at 97. Although there may be “any number of bases on which a prosecutor reasonably [might] believe that it is desirable to strike a juror who is not excusable for cause . . . , the prosecutor must give a clear and reasonably specific ex- planation of his legitimate reasons for exercising the challeng[e].” Id., at 98, n. 20 (internal quotation marks omitted). “The trial court then will have the duty to de- termine if the defendant has established purposeful dis- crimination.” Id., at 98. Although the move from Swain to Batson left a defen- dant free to challenge the prosecution without having to cast Swain’s wide net, the net was not entirely consigned to history, for Batson’s individualized focus came with a 6 MILLER-EL v. DRETKE Opinion of the Court weakness of its own owing to its very emphasis on the particular reasons a prosecutor might give. If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain. Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson’s explanation that a defendant may rely on “all relevant circumstances” to raise an inference of purposeful discrimination. 476 U. S., at 96–97. B This case comes to us on review of a denial of habeas relief sought under 28 U. S. C. §2254, following the Texas trial court’s prior determination of fact that the State’s race-neutral explanations were true, see Purkett v. Elem, 514 U. S. 765, 769 (1995) (per curiam); Batson v. Kentucky, supra, at 98, n. 21. Under the Antiterrorism and Effective Death Penalty Act of 1996, Miller-El may obtain relief only by showing the Texas conclusion to be “an unreasonable determina- tion of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d)(2). Thus we presume the Texas court’s factual findings to be sound unless Miller-El rebuts the “presumption of correctness by clear and convincing evidence.” §2254(e)(1). The standard is demanding but not insatiable; as we said the last time this case was here, “[d]eference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U. S., at 340. III A The numbers describing the prosecution’s use of per- emptories are remarkable. Out of 20 black members of the 108-person venire panel for Miller-El’s trial, only 1 Cite as: 545 U. S. ____ (2005) 7 Opinion of the Court served. Although 9 were excused for cause or by agree- ment, 10 were peremptorily struck by the prosecution. Id., at 331. “The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire mem- bers . . . . Happenstance is unlikely to produce this dispar- ity.” Id., at 342. More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve. If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 147 (2000) (in employment discrimina- tion cases, “[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive”). While we did not de- velop a comparative juror analysis last time, we did note that the prosecution’s reasons for exercising peremptory strikes against some black panel members appeared equally on point as to some white jurors who served. Miller-El v. Cockrell, supra, at 343.1 The details of two panel member comparisons bear this out.2 —————— 1 While many of these explanations were offered contemporaneously, “the state trial court had no occasion to judge the credibility of these explanations at that time because our equal protection jurisprudence then, dictated by Swain, did not require it.” Miller-El v. Cockrell, 537 U. S., at 343. Other evidence was presented in the Batson v. Kentucky, 476 U. S. 79 (1986), hearing, but this was offered two years after trial and “was subject to the usual risks of imprecision and distortion from the passage of time.” 537 U. S., at 343. 2 The dissent contends that comparisons of black and nonblack venire panelists, along with Miller-El’s arguments about the prosecution’s disparate questioning of black and nonblack panelists and its use of jury shuffles, are not properly before this Court, not having been “put 8 MILLER-EL v. DRETKE Opinion of the Court The prosecution used its second peremptory strike to exclude Billy Jean Fields, a black man who expressed unwavering support for the death penalty. On the ques- tionnaire filled out by all panel members before individual examination on the stand, Fields said that he believed in capital punishment, Joint Lodging 14, and during ques- tioning he disclosed his belief that the State acts on God’s behalf when it imposes the death penalty. “Therefore, if the State exacts death, then that’s what it should be.” App. 174. He testified that he had no religious or philoso- phical reservations about the death penalty and that the death penalty deterred crime. Id., at 174–175. He twice averred, without apparent hesitation, that he could sit on Miller-El’s jury and make a decision to impose this pen- alty. Id., at 176–177. Although at one point in the questioning, Fields indi- cated that the possibility of rehabilitation might be rele- vant to the likelihood that a defendant would commit future acts of violence, id., at 183, he responded to ensuing questions by saying that although he believed anyone could be rehabilitated, this belief would not stand in the —————— before the Texas courts.” Post, at 7 (opinion of THOMAS, J.). But the dissent conflates the difference between evidence that must be pre- sented to the state courts to be considered by federal courts in habeas proceedings and theories about that evidence. See 28 U. S. C. §2254(d)(2) (state court factfinding must be assessed “in light of the evidence presented in the State court proceeding”); Miller-El v. Cockrell, 537 U. S. 322, 348 (2003) (habeas petitioner must show unreasonability “in light of the record before the [state] court”). There can be no question that the transcript of voir dire, recording the evi- dence on which Miller-El bases his arguments and on which we base our result, was before the state courts, nor does the dissent contend that Miller-El did not “fairly presen[t]” his Batson claim to the state courts. Picard v. Connor, 404 U. S. 270, 275 (1971). Only as to the juror questionnaires and information cards is there question about what was before the state courts. Unlike the dissent, see post, at 9–10, we reach no decision about whether the limitation on evidence in §2254(d)(2) is waiveable. See infra, at 23–24, n. 15. Cite as: 545 U. S. ____ (2005) 9 Opinion of the Court way of a decision to impose the death penalty: “[B]ased on what you [the prosecutor] said as far as the crime goes, there are only two things that could be rendered, death or life in prison. If for some reason the testimony didn’t warrant death, then life impris- onment would give an individual an opportunity to rehabilitate. But, you know, you said that the jurors didn’t have the opportunity to make a personal deci- sion in the matter with reference to what I thought or felt, but it was just based on the questions according to the way the law has been handed down.” Id., at 185 (alteration omitted). Fields also noted on his questionnaire that his brother had a criminal history. Joint Lodging 13. During ques- tioning, the prosecution went into this, too: “Q Could you tell me a little bit about that? “A He was arrested and convicted on [a] number of occasions for possession of a controlled substance. “Q Was that here in Dallas? “A Yes. “Q Was he involved in any trials or anything like that? “A I suppose of sorts. I don’t really know too much about it. “Q Was he ever convicted? “A Yeah, he served time. “Q Do you feel that that would in any way interfere with your service on this jury at all? “A No.” App. 190. Fields was struck peremptorily by the prosecution, with prosecutor James Nelson offering a race-neutral reason: “[W]e . . . have concern with reference to some of his statements as to the death penalty in that he said that he could only give death if he thought a person 10 MILLER-EL v. DRETKE Opinion of the Court could not be rehabilitated and he later made the comment that any person could be rehabilitated if they find God or are introduced to God and the fact that we have a concern that his religious feelings may affect his jury service in this case.” Id., at 197 (altera- tion omitted). Thus, Nelson simply mischaracterized Fields’s testi- mony. He represented that Fields said he would not vote for death if rehabilitation was possible, whereas Fields unequivocally stated that he could impose the death pen- alty regardless of the possibility of rehabilitation. Perhaps Nelson misunderstood, but unless he had an ulterior reason for keeping Fields off the jury we think he would have proceeded differently. In light of Fields’s outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike. If, indeed, Fields’s thoughts on rehabilitation did make the prosecutor uneasy, he should have worried about a number of white panel members he accepted with no evident reservations. Sandra Hearn said that she believed in the death penalty “if a criminal cannot be rehabilitated and continues to commit the same type of crime.” Id., at 429.3 Hearn went so far as to express doubt that at the penalty phase of a capital case she could conclude that a convicted murderer “would probably commit some crimi- nal acts of violence in the future.” Id., at 440. “People change,” she said, making it hard to assess the risk of someone’s future dangerousness. “[T]he evidence would —————— 3 Hearn could give the death penalty for murder if the defendant had committed a prior offense of robbery, in which case she would judge “according to the situation,” App. 430, and she thought the death penalty might be appropriate for offenses like “[e]xtreme child abuse,” ibid. Cite as: 545 U. S. ____ (2005) 11 Opinion of the Court have to be awful strong.” Ibid. But the prosecution did not respond to Hearn the way it did to Fields, and without delving into her views about rehabilitation with any fur- ther question, it raised no objection to her serving on the jury. White panelist Mary Witt said she would take the possibility of rehabilitation into account in deciding at the penalty phase of the trial about a defendant’s probability of future dangerousness, 6 Record of Voir Dire 2433 (here- inafter Record), but the prosecutors asked her no further question about her views on reformation, and they ac- cepted her as a juror. Id., at 2464–2465.4 Latino venire- man Fernando Gutierrez, who served on the jury, said that he would consider the death penalty for someone who could not be rehabilitated, App. 777, but the prosecutors did not question him further about this view. In sum, nonblack jurors whose remarks on rehabilitation could well have signaled a limit on their willingness to impose a death sentence were not questioned further and drew no objection, but the prosecution expressed apprehension about a black juror’s belief in the possibility of reformation even though he repeatedly stated his approval of the death penalty and testified that he could impose it according to —————— 4 Witt ultimately did not serve because she was peremptorily struck by the defense. 6 Record 2465. The fact that Witt and other venire members discussed here were peremptorily struck by the defense is not relevant to our point. For each of them, the defense did not make a decision to exercise a peremptory until after the prosecution decided whether to accept or reject, so each was accepted by the prosecution before being ultimately struck by the defense. And the underlying question is not what the defense thought about these jurors but whether the State was concerned about views on rehabilitation when the venireperson was not black. The dissent offers other reasons why these nonblack panel members who expressed views on rehabilitation similar to Fields’s were other- wise more acceptable to the prosecution than he was. See post, at 21– 24. In doing so, the dissent focuses on reasons the prosecution itself did not offer. See infra, at 19. 12 MILLER-EL v. DRETKE Opinion of the Court state legal standards even when the alternative sentence of life imprisonment would give a defendant (like everyone else in the world) the opportunity to reform.5 The unlikelihood that his position on rehabilitation had anything to do with the peremptory strike of Fields is underscored by the prosecution’s response after Miller-El’s lawyer pointed out that the prosecutor had misrepre- sented Fields’s responses on the subject. A moment ear- lier the prosecutor had finished his misdescription of Fields’s views on potential rehabilitation with the words, “Those are our reasons for exercising our . . . strike at this time.” Id., at 197. When defense counsel called him on his misstatement, he neither defended what he said nor with- drew the strike. Id., at 198. Instead, he suddenly came up with Fields’s brother’s prior conviction as another reason for the strike. Id., at 199. It would be difficult to credit the State’s new explana- tion, which reeks of afterthought. While the Court of Appeals tried to bolster it with the observation that no seated juror was in Fields’s position with respect to his brother, 361 F. 3d, at 859–860, the court’s readiness to accept the State’s substitute reason ignores not only its pretextual timing but the other reasons rendering it im- plausible. Fields’s testimony indicated he was not close to his brother, App. 190 (“I don’t really know too much about it”), and the prosecution asked nothing further about the influence his brother’s history might have had on Fields, as it probably would have done if the family history had actually mattered. See, e.g., Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000) (“[T]he State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting —————— 5 Prosecutors did exercise peremptory strikes on Penny Crowson and Charlotte Whaley, who expressed views about rehabilitation similar to those of Witt and Gutierrez. App. 554, 715. Cite as: 545 U. S. ____ (2005) 13 Opinion of the Court that the explanation is a sham and a pretext for discrimi- nation”). There is no good reason to doubt that the State’s afterthought about Fields’s brother was anything but makeweight. The Court of Appeals’s judgment on the Fields strike is unsupportable for the same reason the State’s first expla- nation is itself unsupportable. The Appeals Court’s de- scription of Fields’s voir dire testimony mentioned only his statements that everyone could be rehabilitated, failing to note that Fields affirmed that he could give the death penalty if the law and evidence called for it, regardless of the possibility of divine grace. The Court of Appeals made no mention of the fact that the prosecution mischaracter- ized Fields as saying he could not give death if rehabilita- tion were possible. 361 F. 3d, at 856. In sum, when we look for nonblack jurors similarly situated to Fields, we find strong similarities as well as some differences.6 But the differences seem far from significant, particularly when we read Fields’s voir dire testimony in its entirety. Upon that reading, Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecutors’ explana- tions for the strike cannot reasonably be accepted. See —————— 6 The dissent contends that there are no white panelists similarly situated to Fields and to panel member Joe Warren because “ ‘ “[s]imilarly situated” does not mean matching any one of several reasons the prosecution gave for striking a potential juror—it means matching all of them.’ ” Post, at 19 (quoting Miller-El v. Cockrell, 537 U. S., at 362–363 (THOMAS, J., dissenting)). None of our cases an- nounces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one. Nothing in the combination of Fields’s statements about rehabilitation and his brother’s history discredits our grounds for inferring that these purported reasons were pretextual. A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters. 14 MILLER-EL v. DRETKE Opinion of the Court Miller-El v. Cockrell, 537 U. S., at 339 (the credibility of reasons given can be measured by “how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy”). The prosecution’s proffered reasons for striking Joe Warren, another black venireman, are comparably unlikely. Warren gave this answer when he was asked what the death penalty accomplished: “I don’t know. It’s really hard to say because I know sometimes you feel that it might help to deter crime and then you feel that the person is not really suffer- ing. You’re taking the suffering away from him. So it’s like I said, sometimes you have mixed feelings about whether or not this is punishment or, you know, you’re relieving personal punishment.” App. 205; 3 Record 1532. The prosecution said nothing about these remarks when it struck Warren from the panel, but prosecutor Paul Macaluso referred to this answer as the first of his reasons when he testified at the later Batson hearing: “I thought [Warren’s statements on voir dire] were in- consistent responses. At one point he says, you know, on a case-by-case basis and at another point he said, well, I think—I got the impression, at least, that he suggested that the death penalty was an easy way out, that they should be made to suffer more.” App. 909. On the face of it, the explanation is reasonable from the State’s point of view, but its plausibility is severely under- cut by the prosecution’s failure to object to other panel members who expressed views much like Warren’s. Kevin Duke, who served on the jury, said, “sometimes death would be better to me than—being in prison would be like Cite as: 545 U. S. ____ (2005) 15 Opinion of the Court dying every day and, if you were in prison for life with no hope of parole, I[’d] just as soon have it over with than be in prison for the rest of your life.” Id., at 372. Troy Woods, the one black panelist to serve as juror, said that capital punishment “is too easy. I think that’s a quick relief. . . . I feel like [hard labor is] more of a punishment than putting them to sleep.” Id., at 408. Sandra Jenkins, whom the State accepted (but who was then struck by the defense) testified that she thought “a harsher treatment is life imprisonment with no parole.” Id., at 542. Leta Gi- rard, accepted by the State (but also struck by the defense) gave her opinion that “living sometimes is a worse—is worse to me than dying would be.” Id., at 624. The fact that Macaluso’s reason also applied to these other panel members, most of them white, none of them struck, is evidence of pretext. The suggestion of pretext is not, moreover, mitigated much by Macaluso’s explanation that Warren was struck when the State had 10 peremptory challenges left and could afford to be liberal in using them. Id., at 908. If that were the explanation for striking Warren and later accepting panel members who thought death would be too easy, the prosecutors should have struck Sandra Jenkins, whom they examined and accepted before Warren. In- deed, the disparate treatment is the more remarkable for the fact that the prosecutors repeatedly questioned War- ren on his capacity and willingness to impose a sentence of death and elicited statements of his ability to do so if the evidence supported that result and the answer to each special question was yes, id., at 202.2, 202.3, 205, 207, whereas the record before us discloses no attempt to de- termine whether Jenkins would be able to vote for death in spite of her view that it was easy on the convict, id., at 541–546. Yet the prosecutors accepted the white panel member Jenkins and struck the black venireman Warren. Macaluso’s explanation that the prosecutors grew more 16 MILLER-EL v. DRETKE Opinion of the Court sparing with peremptory challenges as the jury selection wore on does, however, weaken any suggestion that the State’s acceptance of Woods, the one black juror, shows that race was not in play. Woods was the eighth juror, qualified in the fifth week of jury selection. Joint Lodging 125. When the State accepted him, 11 of its 15 peremp- tory strikes were gone, 7 of them used to strike black panel members. Id., at 137. The juror questionnaires show that at least three members of the venire panel yet to be questioned on the stand were opposed to capital punishment, Janice Mackey, id., at 79; Paul Bailey, id., at 63; and Anna Keaton, id., at 55.7 With at least three remaining panel members highly undesirable to the State, the prosecutors had to exercise prudent restraint in using strikes. This late-stage decision to accept a black panel member willing to impose a death sentence does not, therefore, neutralize the early-stage decision to challenge a comparable venireman, Warren. In fact, if the prosecu- tors were going to accept any black juror to obscure the otherwise consistent pattern of opposition to seating one, the time to do so was getting late.8 —————— 7 Each of them was black and each was peremptorily struck by the State after Woods’s acceptance. It is unclear whether the prosecutors knew they were black prior to the voir dire questioning on the stand, though there is some indication that they did: prosecutors noted the race of each panelist on all of the juror cards, Miller-El v. Cockrell, 537 U. S., at 347, even for those panelists who were never questioned individually because the week ended before it was their turn. 8 Nor is pretextual indication mitigated by Macaluso’s further reason that Warren had a brother-in-law convicted of a crime having to do with food stamps for which he had to make restitution. App. 910. Macaluso never questioned Warren about his errant relative at all; as with Fields’s brother, the failure to ask undermines the persuasiveness of the claimed concern. And Warren’s brother’s criminal history was comparable to those of relatives of other panel members not struck by prosecutors. Cheryl Davis’s husband had been convicted of theft and received seven years’ probation. Id., at 695–696. Chatta Nix’s brother was involved in white-collar fraud. Id., at 613–614. Noad Vickery’s Cite as: 545 U. S. ____ (2005) 17 Opinion of the Court The Court of Appeals pretermitted these difficulties by stating that the prosecution’s reason for striking Warren was a more general ambivalence about the penalty and his ability to impose it, 361 F. 3d, at 856–857 (and the dissent presses that explanation here, post, at 14–17). But this rationalization was erroneous as a matter of fact and as a matter of law. As to fact, Macaluso said nothing about any general ambivalence. He simply alluded to the possibility that Warren might think the death penalty too easy on some defendants, saying nothing about Warren’s ability to impose the penalty when it appeared to be warranted.9 On the contrary, though Warren had indeed questioned the extent to which the death penalty served a purpose in society, App. 205, he explained his position in response to the very next question: it was not any qualm about impos- ing what society generally deems its harshest punishment, but his concern that the death penalty might not be severe enough, ibid. When Warren was asked whether he could impose the death penalty he said he thought he could; when told that answering yes to the special issue ques- tions would be tantamount to voting for death he said he could give yes answers if the evidence supported them. —————— sister served time in a penitentiary several decades ago. Id., at 240– 241. 9 But even if Macaluso actually had explained that he exercised the strike because Warren was diffident about imposing death, it would have been hard to square that explanation with the prosecution’s tolerance for a number of ambivalent white panel members. Juror Marie Mazza, for example, admitted some concern about what her associates might think of her if she sat on a jury that called for the death penalty. Id., at 354–355. Ronald Salsini, accepted by the prose- cution but then struck by the defense, worried that if he gave the death penalty he might have a “problem” in the future with having done so. Id., at 593. Witt, another panel member accepted by the State but struck by the defense, said she did not know if she could give that sentence. 6 Record 2423. 18 MILLER-EL v. DRETKE Opinion of the Court Id., at 207.10 As for law, the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. 476 U. S., at 96–97; Miller-El v. Cockrell, 537 U. S., at 339. It is true that peremptories are often the subjects of instinct, Batson v. Kentucky, 476 U. S., at 106 (Marshall, J., con- curring), and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals’s and the dissent’s substi- tution of a reason for eliminating Warren does nothing to —————— 10 The Court of Appeals also found ambivalence in Warren’s state- ment, when asked how he felt generally about the death penalty, that, “there are some cases where I would agree, you know, and there are others that I don’t.” App. 202.2 (quoted in 361 F. 3d 849, 857 (CA5 2004)). But a look at Warren’s next answers shows what he meant. The sorts of cases where he would impose it were those where “maybe things happen that could have been avoided,” such as where there is a choice not to kill, but he would not impose it for killing “in self[-]defense sometimes.” App. 202.2–202.3. Where the death penalty is sought for murder committed at the same time as another felony, Warren thought that it “depends on the case and the circumstances involved at the time.” Id., at 204. None of these responses is exceptionable. A number of venire members not struck by the State, including some seated on the jury, offered some version of the uncontroversial, and responsible, view that imposition of the death penalty ought to depend on the circumstances. See Joint Lodging 176 (Marie Mazza, a seated juror); id., at 223 (Filemon Zablan, a seated juror); App. 548 (Colleen Moses, struck by the defense); id., at 618 (Mary Witt, struck by the defense); 11–(B) Record 4455–4456 (Max O’Dell, struck by the defense). Cite as: 545 U. S. ____ (2005) 19 Opinion of the Court satisfy the prosecutors’ burden of stating a racially neutral explanation for their own actions. The whole of the voir dire testimony subject to consid- eration casts the prosecution’s reasons for striking Warren in an implausible light. Comparing his strike with the treatment of panel members who expressed similar views supports a conclusion that race was significant in deter- mining who was challenged and who was not.11 B The case for discrimination goes beyond these compari- sons to include broader patterns of practice during the jury selection. The prosecution’s shuffling of the venire panel, its enquiry into views on the death penalty, its questioning about minimum acceptable sentences: all —————— 11 There were other black members of the venire struck purportedly because of some ambivalence, about the death penalty or their capacity to impose it, who Miller-El argues must actually have been struck because of race, none of them having expressed any more ambivalence than white jurors Mazza and Hearn. We think these are closer calls, however. Edwin Rand said at points that he could impose the death penalty, but he also said “right now I say I can, but tomorrow I might not.” App. 265 (alterations omitted). Wayman Kennedy testified that he could impose the death penalty, but on his questionnaire and voir dire, he was more specific, saying that he believed in the death penalty for mass murder. Id., at 317; Joint Lodging 46. (Arguably Fernando Gutierrez, accepted by the prosecution, expressed a similar view when he offered as an example of a defendant who merited the death penalty a “criminally insane” person who could not be rehabilitated. App. 777. But perhaps prosecutors took Gutierrez to mean this only as an exam- ple.) Roderick Bozeman stated that he thought he could vote for the death penalty but he didn’t really know. Id., at 145. Finally, Carrol Boggess expressed uncertainty whether she could go through with giving the death penalty, id., at 298–299, although she later averred that she could, id., at 302–304. We do not decide whether there were white jurors who expressed ambivalence just as much as these black members of the venire panel. There is no need to go into these instances, for the prosecutors’ treat- ment of Fields and Warren supports stronger arguments that Batson was violated. 20 MILLER-EL v. DRETKE Opinion of the Court indicate decisions probably based on race. Finally, the appearance of discrimination is confirmed by widely known evidence of the general policy of the Dallas County District Attorney’s Office to exclude black venire members from juries at the time Miller-El’s jury was selected. The first clue to the prosecutors’ intentions, distinct from the peremptory challenges themselves, is their resort during voir dire to a procedure known in Texas as the jury shuffle. In the State’s criminal practice, either side may literally reshuffle the cards bearing panel members’ names, thus rearranging the order in which members of a venire panel are seated and reached for questioning.12 Once the order is established, the panel members seated at the back are likely to escape voir dire altogether, for those not questioned by the end of the week are dismissed. As we previously explained, “the prosecution’s decision to seek a jury shuffle when a predominant number of African-Americans were seated in the front of the panel, along with its decision to delay a formal objection to the defense’s shuffle un- til after the new racial composition was revealed, raise a suspicion that the State sought to exclude Af- rican-Americans from the jury. Our concerns are am- plified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney’s Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past.” Miller- El v. Cockrell, supra, at 346. In this case, the prosecution and then the defense shuf- —————— 12 The procedure is conducted under Tex. Code Crim. Proc. Ann., Art. 35.11 (Vernon Supp. 2004–2005). While that statute says that the court clerk is to conduct a shuffle on the request of either party, the transcripts in this case make clear that each side did its own shuffles. See, e.g., App. 124. Cite as: 545 U. S. ____ (2005) 21 Opinion of the Court fled the cards at the beginning of the first week of voir dire; the record does not reflect the changes in order. App. 113–114. At the beginning of the second week, when a number of black members were seated at the front of the panel, the prosecution shuffled.13 2 Record 836–837. At the beginning of the third week, the first four panel mem- bers were black. The prosecution shuffled, and these black panel members ended up at the back. Then the defense shuffled, and the black panel members again appeared at the front. The prosecution requested another shuffle, but the trial court refused. App. 124–132. Fi- nally, the defense shuffled at the beginning of the fourth and fifth weeks of voir dire; the record does not reflect the panel’s racial composition before or after those shuffles. Id., at 621–622; 9 Record 3585. The State notes in its brief that there might be racially neutral reasons for shuffling the jury, Brief for Respon- dent 36–37, and we suppose there might be. But no ra- cially neutral reason has ever been offered in this case, and nothing stops the suspicion of discriminatory intent from rising to an inference.14 The next body of evidence that the State was trying to avoid black jurors is the contrasting voir dire questions posed respectively to black and nonblack panel members, on two different subjects. First, there were the prosecu- tors’ statements preceding questions about a potential —————— 13 Of the first 10 panel members before the prosecution shuffled, 4 were black. Of the second 10, 3 were black. Of the third 10, 2 were black, and only 1 black was among the last 10 panel members. 2 Record 837. 14 The Court of Appeals declined to give much weight to the evidence of racially motivated jury shuffles because “Miller-El shuffled the jury five times and the prosecutors shuffled the jury only twice.” 361 F. 3d, at 855. But Miller-El’s shuffles are flatly irrelevant to the question whether prosecutors’ shuffles revealed a desire to exclude blacks. (The Appeals Court’s statement was also inaccurate: the prosecution shuf- fled the jury three times.) 22 MILLER-EL v. DRETKE Opinion of the Court juror’s thoughts on capital punishment. Some of these prefatory statements were cast in general terms, but some followed the so-called graphic script, describing the method of execution in rhetorical and clinical detail. It is intended, Miller-El contends, to prompt some expression of hesitation to consider the death penalty and thus to elicit plausibly neutral grounds for a peremptory strike of a potential juror subjected to it, if not a strike for cause. If the graphic script is given to a higher proportion of blacks than whites, this is evidence that prosecutors more often wanted blacks off the jury, absent some neutral and ex- tenuating explanation. As we pointed out last time, for 94% of white venire panel members, prosecutors gave a bland description of the death penalty before asking about the individual’s feelings on the subject. Miller-El v. Cockrell, 537 U. S., at 332. The abstract account went something like this: “I feel like it [is] only fair that we tell you our position in this case. The State of Texas . . . is actively seeking the death penalty in this case for Thomas Joe Miller- El. We anticipate that we will be able to present to a jury the quantity and type of evidence necessary to convict him of capital murder and the quantity and type of evidence sufficient to allow a jury to answer these three questions over here in the affirmative. A yes answer to each of those questions results in an automatic death penalty from Judge McDowell.” App. 564–565. Only 6% of white venire panelists, but 53% of those who were black, heard a different description of the death penalty before being asked their feelings about it. This is an example of the graphic script: “I feel like you have a right to know right up front what our position is. Mr. Kinne, Mr. Macaluso and myself, representing the people of Dallas County and Cite as: 545 U. S. ____ (2005) 23 Opinion of the Court the state of Texas, are actively seeking the death pen- alty for Thomas Joe Miller-El. . . . “We do that with the anticipation that, when the death penalty is assessed, at some point Mr. Thomas Joe Miller-El—the man sitting right down there—will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected with a lethal sub- stance until he is dead as a result of the proceedings that we have in this court on this case. So that’s basi- cally our position going into this thing.” Id., at 572– 573. The State concedes that this disparate questioning did occur but argues that use of the graphic script turned not on a panelist’s race but on expressed ambivalence about the death penalty in the preliminary questionnaire.15 —————— 15 So far as we can tell from the voluminous record before us, many of the juror questionnaires, along with juror information cards, were added to the habeas record after the filing of the petition in the District Court. See Supplemental Briefing on Batson/Swain Claim Based on Previously Unavailable Evidence, Record in No. 00–10784 (CA5), p. 2494. The State raised no objection to receipt of the supplemental material in the District Court or the Fifth Circuit, and in this Court the State has joined with Miller-El in proposing that we consider this material, by providing additional copies in a joint lodging (apparently as an alternative to a more costly printing as part of the joint appen- dix). Neither party has referred to the provision that the reasonable- ness of the state-court determination be judged by the evidence before the state court, 28 U. S. C. §2254(d)(2), and it is not clear to what extent the lodged material expands upon what the state judge knew; the same judge presided over the voir dire, the Swain hearing, and the Batson hearing, and the jury questionnaires were subjects of reference at the voir dire. The last time this case was here the State expressly relied on the questionnaires for one of its arguments, Brief for Respon- dent in Miller-El v. Cockrell, O. T. 2002, No. 01–7662, p. 17, and although it objected to the Court’s consideration of some other evidence not before the state courts, id., at 28–29, it did not object either to questionnaires or juror cards. This time around, the State again relies 24 MILLER-EL v. DRETKE Opinion of the Court Prosecutors were trying, the argument goes, to weed out noncommittal or uncertain jurors, not black jurors. And while some white venire members expressed opposition to the death penalty on their questionnaires, they were not read the graphic script because their feelings were already clear. The State says that giving the graphic script to these panel members would only have antagonized them. Brief for Respondent 27–32. This argument, however, first advanced in dissent when the case was last here, Miller-El v. Cockrell, supra, at 364–368 (opinion of THOMAS, J.), and later adopted by the State and the Court of Appeals, simply does not fit the facts. Looking at the answers on the questionnaires, and at voir dire testimony expressly discussing answers on the questionnaires,16 we find that black venire members were more likely than nonblacks to receive the graphic script regardless of their expressions of certainty or ambivalence about the death penalty, and the State’s chosen explana- tion for the graphic script fails in the cases of four out of the eight black panel members who received it.17 Two of —————— on the jury questionnaires for its argument that the prosecution’s disparate questioning was not based on race. We have no occasion here to reach any question about waiver under §2254(d)(2). It is worth noting that if we excluded the lodged material in this case, the State’s arguments would fare even worse than they do. The panel members’ cards and answers to the questionnaires were the only items of information that the prosecutors had about them, other than their appearances, before reaching the point of choosing whether to employ the graphic script; if we excluded consideration of the questionnaires, the State would be left with no basis even to argue extenuation of the extreme racial disparity in the use of the graphic script. 16 We confine our analysis to these sources because the questionnaires and any testimony about their answers provided the only information available to prosecutors about venire members’ views on the death penalty before they decided whether to use the graphic script. 17 The dissent has conducted a similar statistical analysis that it con- tends supports the State’s argument that the graphic script was used to expose the true feelings of jurors who professed ambivalence about the Cite as: 545 U. S. ____ (2005) 25 Opinion of the Court them, Janice Mackey and Anna Keaton, clearly stated opposition to the death penalty but they received the graphic script,18 while the black panel members Wayman Kennedy and Jeannette Butler were unambiguously in favor19 but got the graphic description anyway.20 The State’s explanation does even worse in the instances of the —————— death penalty on their questionnaires. See post, at 24–31. A few examples suffice to show that the dissent’s conclusions rest on charac- terizations of panel members’ questionnaire responses that we consider implausible. In the dissent’s analysis, for example, Keaton and Mackey were ambivalent, despite Keaton’s questionnaire response that she did not believe in the death penalty and felt it was not for her to punish anyone, Joint Lodging 55, and Mackey’s response that “[t]hou shall [n]ot kill,” id., at 79. But we believe neither can be fairly characterized as someone who might turn out to be a juror acceptable to the State upon pointed questioning. The dissent also characterizes the question- naires of Vivian Sztybel, Filemon Zablan, and Dominick Desinise as revealing ambivalence. But Sztybel’s questionnaire stated that she believed in the death penalty “[i]f a person is found guilty of murder or other crime . . . without a valid defense” because “[t]hey may continue to do this again and again.” Id., at 184. She also reported that she had no moral, religious, or personal belief that would prevent her from imposing the death penalty. Ibid. Zablan stated on the questionnaire that he was able to impose the death penalty and that he supported it “[i]f it’s the law and if the crime fits such punishment.” Id., at 223. Desinise reported in voir dire that he had stated in the questionnaire his opposition to the death penalty. App. 573. 18 App. 728 (Mackey); id., at 769 (Keaton). 19 Kennedy said that he believed in the death penalty but would apply it only in an extreme case such as one involving multiple murders. Joint Lodging 46. There is no ambivalence in his questionnaire re- sponses. Butler’s questionnaire is not available, but she affirmed in voir dire that she had said on her questionnaire that she believed in the death penalty, that she had no moral, religious, or personal beliefs that would prevent her from imposing the death penalty, and that she had reported on her questionnaire that she “believe[d] in the death penalty only when a crime has been committed concerning a child such as beating to death or some form of harsh physical abuse and when an innocent victim’s life is taken.” 4 Record 1874; see also id., at 1906– 1907. 20 App. 579 (Butler); id., at 317 (Kennedy). 26 MILLER-EL v. DRETKE Opinion of the Court five nonblacks who received the graphic script, missing the mark four times out of five: Vivian Sztybel and File- mon Zablan received it,21 although each was unambigu- ously in favor of the death penalty,22 while Dominick Desinise and Clara Evans unambiguously opposed it23 but were given the graphic version.24 The State’s purported rationale fails again if we look only to the treatment of ambivalent panel members, am- bivalent black individuals having been more likely to receive the graphic description than ambivalent non- blacks. Three nonblack members of the venire indicated ambivalence to the death penalty on their question- naires;25 only one of them, Fernando Gutierrez, received the graphic script.26 But of the four black panel mem- bers who expressed ambivalence,27 all got the graphic treatment.28 The State’s attempt at a race-neutral rationalization —————— 21 Id., at 640–641 (Sztybel); id., at 748 (Zablan). 22 Joint Lodging 184 (Sztybel); id., at 223 (Zablan). 23 Neither questionnaire is available, but Desinise and Evans both confirmed on voir dire that on the questionnaire they stated their opposition to the death penalty. App. 573 (Desinise), id., at 626–628 (Evans). 24 Id., at 573 (Desinise); id., at 626 (Evans). 25 In answering the question whether she had moral, religious, or personal beliefs that might prevent her from giving the death penalty, Colleen Moses confirmed at voir dire that she said, “I don’t know. It would depend.” 3 Record 1141. Noad Vickery confirmed at voir dire that he reported on the questionnaire that he was not sure what he believed about the death penalty. 4 id., at 1611. Fernando Gutierrez reported on the questionnaire that he believed in the death penalty for some crimes but answered “yes” to the question whether he had moral, religious, or personal beliefs that might prevent him from imposing it. Joint Lodging 231. 26 App. 775 (Gutierrez); id., at 547 (Moses); 4 Record 1569 (Vickery). 27 These were Linda Baker, Joint Lodging 71; Paul Bailey, id., at 63; Carrol Boggess, id., at 38; and Troy Woods, id., at 207. 28 App. 294 (Boggess); id., at 652–653 (Baker); id., at 405–406 (Woods), id., at 737 (Bailey). Cite as: 545 U. S. ____ (2005) 27 Opinion of the Court thus simply fails to explain what the prosecutors did. But if we posit instead that the prosecutors’ first object was to use the graphic script to make a case for excluding black panel members opposed to or ambivalent about the death penalty, there is a much tighter fit of fact and explana- tion.29 Of the 10 nonblacks whose questionnaires ex- pressed ambivalence or opposition,30 only 30% received the graphic treatment.31 But of the seven blacks who ex- pressed ambivalence or opposition,32 86% heard the graphic script.33 As between the State’s ambivalence explanation and Miller-El’s racial one, race is much the better, and the reasonable inference is that race was the major consideration when the prosecution chose to follow the graphic script. The same is true for another kind of disparate question- ing, which might fairly be called trickery. The prosecutors asked members of the panel how low a sentence they would consider imposing for murder. Most potential jurors were first told that Texas law provided for a mini- —————— 29 The dissent posits that prosecutors did not use the graphic script with panel members opposed to the death penalty because it would only have antagonized them. See post, at 29. No answer is offered to the question why a prosecutor would take care with the feelings of a panel member he would excuse for cause or strike yet would antagonize an ambivalent member whose feelings he wanted to smoke out, but who might turn out to be an acceptable juror. 30 These were John Nelson, 2 Record 625; James Holtz, id., at 1022; Moses, 3 id., at 1141; Linda Berk, id., at 1445, 1450; Desinise, App. 573; Vickery, 4 Record 1610; Gene Hinson, App. 576; Girard, id., at 624; Evans, id., at 627–628; Gutierrez, Joint Lodging 231. 31 These were Desinise, App. 573; Evans, id., at 626; and Gutierrez, id., at 775. 32 These were Jerry Mosley, 7 Record 2658; Baker, id., at 71; Bailey, id., at 63; Keaton, id., at 55; Mackey, id., at 79; Boggess, id., at 38; and Woods, id., at 207. 33 Only Mosley did not. App. 630. 28 MILLER-EL v. DRETKE Opinion of the Court mum term of five years, but some members of the panel were not, and if a panel member then insisted on a mini- mum above five years, the prosecutor would suppress his normal preference for tough jurors and claim cause to strike. Two Terms ago, we described how this disparate questioning was correlated with race: “Ninety-four percent of whites were informed of the statutory minimum sentence, compared [with] only twelve and a half percent of African-Americans. No explanation is proffered for the statistical disparity. Pierre v. Louisiana, 306 U. S. 354, 361–362 (1939) (‘ “The fact that the testimony . . . was not challenged by evidence appropriately direct, cannot be brushed aside.” Had there been evidence obtainable to contra- dict and disprove the testimony offered by petitioner, it cannot be assumed that the State would have re- frained from introducing it’ (quoting Norris v. Ala- bama, 294 U. S. 587, 594–595 (1935))). Indeed, while petitioner’s appeal was pending before the Texas Court of Criminal Appeals, that court found a Batson violation where this precise line of disparate question- ing on mandatory minimums was employed by one of the same prosecutors who tried the instant case. Chambers v. State, 784 S. W. 2d 29, 31 (Tex. Crim. App. 1989).” Miller-El v. Cockrell, 537 U. S., at 345. The State concedes that the manipulative minimum punishment questioning was used to create cause to strike, Brief for Respondent 33, and n. 26, but now it offers the extenuation that prosecutors omitted the 5-year in- formation not on the basis of race, but on stated opposition to the death penalty, or ambivalence about it, on the ques- tionnaires and in the voir dire testimony. Id., at 34–35. On the State’s identification of black panel members Cite as: 545 U. S. ____ (2005) 29 Opinion of the Court opposed or ambivalent, all were asked the trick question.34 But the State’s rationale flatly fails to explain why most white panel members who expressed similar opposition or ambivalence were not subjected to it. It is entirely true, as the State argues, id., at 35, that prosecutors struck a number of nonblack members of the panel (as well as black members) for cause or by agreement before they reached the point in the standard voir dire sequence to question about minimum punishment. But this is no answer; 8 of the 11 nonblack individuals who voiced oppo- sition or ambivalence were asked about the acceptable minimum only after being told what state law required.35 —————— 34 The State puts the number of black panel members who expressed opposition or ambivalence at seven, and each received the minimum punishment ruse. Bozeman, id., at 162; Fields, id., at 187–188; War- ren, id., at 213–214; Rand, id., at 270; Boggess, id., at 306–307; Ken- nedy, id., at 327–328; and Baker, id., at 654. Woods, the State argues, had been revealed through questioning as a supporter of the death penalty, and accordingly he was told that five years was the statutory minimum. As explained supra, at 7–18, Fields and Warren were neither ambivalent nor opposed; on our analysis of black venire mem- bers opposed or ambivalent, all received the trick question, along with two proponents of capital punishment. 35 Moses confirmed at voir dire that she reported on her questionnaire that she did not know the answer to Question 58, 3 Record 1141, although she did express support for the death penalty, App. 548. She was not subjected to the manipulative script. Id., at 547. Crowson said that if there was a chance at rehabilitation she probably would not go with death. Id., at 554. The prosecution used a peremptory strike against her but did not employ the manipulative minimum punishment script. 3 Record 1232. Vickery said he did not know how he felt about the death penalty, 4 id., at 1572, but was not subjected to the manipu- lative script, id., at 1582. Salsini thought he would have a problem in the future if he voted to impose a death sentence, App. 593, but he was not subjected to the script, id., at 595. Mazza was worried about what other people would think if she imposed the death penalty, id., at 354– 355, but was not subjected to the script, id., at 356. Witt said she did not know if she could give the death penalty, 6 Record 2423, but was not subjected to the script, id., at 2439. Whaley thought that she could not give the death penalty without proof of premeditation, even though 30 MILLER-EL v. DRETKE Opinion of the Court Hence, only 27% of nonblacks questioned on the subject who expressed these views were subjected to the trick question, as against 100% of black members. Once again, the implication of race in the prosecutors’ choice of ques- tioning cannot be explained away.36 There is a final body of evidence that confirms this conclusion. We know that for decades leading up to the time this case was tried prosecutors in the Dallas County office had followed a specific policy of systematically ex- cluding blacks from juries, as we explained the last time the case was here. —————— Texas law did not require it, 10 id., at 3750, but she was not subjected to the script, id., at 3768. Hearn said that the death penalty should be given only to those who could not be rehabilitated, App. 429, but she was not subjected to the script, id., at 441. The three nonblacks who expressed ambivalence or opposition and were subjected to the script were James Holtz, id., at 538; Margaret Gibson, id., at 514; and Fer- nando Gutierrez, 11–(B) Record 4397. 36 The dissent reaches a different statistical result that supports the State’s explanation. See post, at 31–33. There are two flaws in its calculations. First, it excises from its calculations panel members who were struck for cause or by agreement, on the theory that prosecutors knew they could be rid of those panel members without resorting to the minimum punishment ruse. See post, at 31–32. But the prosecution’s calculation about whether to ask these manipulative questions occurred before prosecutors asked the trial court to strike panel members for cause and, frequently, before prosecutors and defense counsel would have reached agreement about removal. It is unlikely that prosecutors were so assured of being able to remove certain panel members for cause or by agreement that they would forgo the chance to create additional grounds for removal by employing the minimum-punishment ruse. Second, as with its analysis of the panelists receiving the graphic script, the dissent characterizes certain panel members in ways that in our judgment are unconvincing. For example, for purposes of the minimum-punishment analysis, the dissent considers Colleen Moses and Noad Vickery to be panelists so favorable to the prosecution that there was no need to resort to the minimum-punishment ruse, post, at 32, yet the dissent acknowledged Moses’s and Vickery’s ambivalent questionnaire responses in its discussion of the graphic script, post, at 29. Cite as: 545 U. S. ____ (2005) 31 Opinion of the Court “Although most of the witnesses [presented at the Swain hearing in 1986] denied the existence of a sys- tematic policy to exclude African-Americans, others disagreed. A Dallas County district judge testified that, when he had served in the District Attorney’s Office from the late-1950’s to early-1960’s, his supe- rior warned him that he would be fired if he permitted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former as- sistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries. “Of more importance, the defense presented evi- dence that the District Attorney’s Office had adopted a formal policy to exclude minorities from jury ser- vice. . . . A manual entitled ‘Jury Selection in a Criminal Case’ [sometimes known as the Sparling Manual] was distributed to prosecutors. It contained an article authored by a former prosecutor (and later a judge) under the direction of his superiors in the District Attorney’s Office, outlining the reasoning for excluding minorities from jury service. Although the manual was written in 1968, it remained in circula- tion until 1976, if not later, and was available at least to one of the prosecutors in Miller-El’s trial.” Miller- El v. Cockrell, 537 U. S., at 334–335.37 Prosecutors here “marked the race of each prospective juror on their juror cards.” Id., at 347.38 —————— 37 The material omitted from the quotation includes an excerpt from a 1963 circular given to prosecutors in the District Attorney’s Office, which the State points out was not in evidence in the state trial court. The Sparling Manual, however, was before the state court. 38 The State claimed at oral argument that prosecutors could have been tracking jurors’ races to be sure of avoiding a Batson violation. Tr. of Oral Arg. 44. Batson, of course, was decided the month after Miller- 32 MILLER-EL v. DRETKE Opinion of the Court The Court of Appeals concluded that Miller-El failed to show by clear and convincing evidence that the state court’s finding of no discrimination was wrong, whether his evidence was viewed collectively or separately. 361 F. 3d, at 862. We find this conclusion as unsupportable as the “dismissive and strained interpretation” of his evi- dence that we disapproved when we decided Miller-El was entitled to a certificate of appealability. See Miller-El v. Cockrell, supra, at 344. It is true, of course, that at some points the significance of Miller-El’s evidence is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination. In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors’ chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race. At least two of the jury shuffles conducted by the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached. The State has in fact never offered any other explanation. Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of non- blacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus —————— El was tried. Cite as: 545 U. S. ____ (2005) 33 Opinion of the Court explain a strike), and 100% of blacks but only 27% of nonblacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a disqualifying answer. The State’s attempts to explain the prosecutors’ questioning of particular witnesses on nonracial grounds fit the evidence less well than the ra- cially discriminatory hypothesis. If anything more is needed for an undeniable explana- tion of what was going on, history supplies it. The prose- cutors took their cues from a 20-year old manual of tips on jury selection, as shown by their notes of the race of each potential juror. By the time a jury was chosen, the State had peremptorily challenged 12% of qualified nonblack panel members, but eliminated 91% of the black ones. It blinks reality to deny that the State struck Fields and Warren, included in that 91%, because they were black. The strikes correlate with no fact as well as they correlate with race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State. The State’s pretextual positions confirm Miller-El’s claim, and the prosecutors’ own notes proclaim that the Sparling Manual’s emphasis on race was on their minds when they considered every potential juror. The state court’s conclusion that the prosecutors’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state court’s conclusion was unreasonable as well as erro- neous. The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for peti- tioner together with orders of appropriate relief. It is so ordered. Cite as: 545 U. S. ____ (2005) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 03–9659 _________________ THOMAS JOE MILLER-EL, PETITIONER v. DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 13, 2005] JUSTICE BREYER, concurring. In Batson v. Kentucky, 476 U. S. 79 (1986), the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his sepa- rate opinion, Justice Thurgood Marshall predicted that the Court’s rule would not achieve its goal. The only way to “end the racial discrimination that peremptories inject into the jury-selection process,” he concluded, was to “eliminat[e] peremptory challenges entirely.” Id., at 102– 103 (concurring opinion). Today’s case reinforces Justice Marshall’s concerns. I To begin with, this case illustrates the practical prob- lems of proof that Justice Marshall described. As the Court’s opinion makes clear, Miller-El marshaled exten- sive evidence of racial bias. But despite the strength of his claim, Miller-El’s challenge has resulted in 17 years of largely unsuccessful and protracted litigation—including 8 different judicial proceedings and 8 different judicial opinions, and involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary. The complexity of this process reflects the difficulty of 2 MILLER-EL v. DRETKE BREYER, J., concurring finding a legal test that will objectively measure the in- herently subjective reasons that underlie use of a peremp- tory challenge. Batson seeks to square this circle by (1) requiring defendants to establish a prima facie case of discrimination, (2) asking prosecutors then to offer a race- neutral explanation for their use of the peremptory, and then (3) requiring defendants to prove that the neutral reason offered is pretextual. See ante, at 5. But Batson embodies defects intrinsic to the task. At Batson’s first step, litigants remain free to misuse peremptory challenges as long as the strikes fall below the prima facie threshold level. See 476 U. S., at 105 (Mar- shall, J., concurring). At Batson’s second step, prosecutors need only tender a neutral reason, not a “persuasive, or even plausible” one. Purkett v. Elem, 514 U. S. 765, 768 (1995) (per curiam); see also id., at 766 (“ ‘mustaches and the beards look suspicious’ ”). And most importantly, at step three, Batson asks judges to engage in the awkward, sometime hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the chal- lenge. See 476 U. S., at 106 (Marshall, J., concurring) (noting that the unconscious internalization of racial stereotypes may lead litigants more easily to conclude “that a prospective black juror is ‘sullen,’ or ‘distant,’ ” even though that characterization would not have sprung to mind had the prospective juror been white); see also Page, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B. U. L. Rev. 155, 161 (2005) (“ ‘[s]ubtle forms of bias are automatic, unconscious, and unintentional’ ” and ‘ “escape notice, even the notice of those enacting the bias’ ” (quoting Fiske, What’s in a Cate- gory?: Responsibility, Intent, and the Avoidability of Bias Against Outgroups, in The Social Psychology of Good and Evil 127 (A. Miller ed. 2004))). In such circumstances, it may be impossible for trial courts to discern if a “ ‘seat-of- Cite as: 545 U. S. ____ (2005) 3 BREYER, J., concurring the-pants’ ” peremptory challenge reflects a “ ‘seat-of-the- pants’ ” racial stereotype. Batson, 476 U. S., at 106 (Mar- shall, J., concurring) (quoting id., at 138 (REHNQUIST, J., dissenting)). Given the inevitably clumsy fit between any objectively measurable standard and the subjective decisionmaking at issue, I am not surprised to find studies and anecdotal reports suggesting that, despite Batson, the discrimina- tory use of peremptory challenges remains a problem. See, e.g., Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 52–53, 73, n. 197 (2001) (in 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51% of black jurors and 26% of nonblack jurors; defense counsel struck 26% of black jurors and 54% of nonblack jurors; and race-based uses of prosecutorial peremptories declined by only 2% after Batson); Rose, The Peremptory Challenge Accused of Race or Gender Dis- crimination? Some Data from One County, 23 Law and Human Behavior 695, 698–699 (1999) (in one North Caro- lina county, 71% of excused black jurors were removed by the prosecution; 81% of excused white jurors were re- moved by the defense); Tucker, In Moore’s Trials, Ex- cluded Jurors Fit Racial Pattern, Washington Post, Apr. 2, 2001, p. A1 (in D. C. murder case spanning four trials, prosecutors excused 41 blacks or other minorities and 6 whites; defense counsel struck 29 whites and 13 black venire members); Mize, A Legal Discrimination; Juries Are Not Supposed to be Picked on the Basis of Race and Sex, But It Happens All the Time, Washington Post, Oct. 8, 2000, p. B8 (authored by judge on the D. C. Superior Court); see also Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447, 462–464 (1996) (finding Batson challenges’ success rates lower where peremptories were 4 MILLER-EL v. DRETKE BREYER, J., concurring used to strike black, rather than white, potential jurors); Brand, The Supreme Court, Equal Protection and Jury Selection: Denying That Race Still Matters, 1994 Wis. L. Rev. 511, 583–589 (examining judicial decisions and concluding that few Batson challenges succeed); Note, Batson v. Kentucky and J. E. B. v. Alabama ex rel. T. B.: Is the Peremptory Challenge Still Preeminent?, 36 Boston College L. Rev. 161, 189, and n. 303 (1994) (same); Montoya, The Future of the Post-Batson Peremptory Chal- lenge: Voir Dire by Questionnaire and the “Blind” Peremp- tory Challenge, 29 U. Mich. J. L. Reform 981, 1006, nn. 126–127, 1035 (1996) (reporting attorneys’ views on the difficulty of proving Batson claims). II Practical problems of proof to the side, peremptory challenges seem increasingly anomalous in our judicial system. On the one hand, the Court has widened and deepened Batson’s basic constitutional rule. It has applied Batson’s antidiscrimination test to the use of peremptories by criminal defendants, Georgia v. McCollum, 505 U. S. 42 (1992), by private litigants in civil cases, Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991), and by prosecu- tors where the defendant and the excluded juror are of different races, Powers v. Ohio, 499 U. S. 400 (1991). It has recognized that the Constitution protects not just de- fendants, but the jurors themselves. Id., at 409. And it has held that equal protection principles prohibit excusing jurors on account of gender. See J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994). Some lower courts have ex- tended Batson’s rule to religious affiliation as well. See, e.g., United States v. Brown, 352 F. 3d 654, 668–669 (CA2 2003); State v. Hodge, 248 Conn. 207, 244–246, 726 A. 2d 531, 553 (1999); United States v. Stafford, 136 F. 3d 1109, 1114 (CA7 1998) (suggesting same); see also Davis v. Minnesota, 511 U. S. 1115, 1117 (1994) (THOMAS, J., dis- Cite as: 545 U. S. ____ (2005) 5 BREYER, J., concurring senting from denial of certiorari). But see Casarez v. State, 913 S. W. 2d 468, 496 (Tex. Crim. App. 1994) (en banc) (declining to extend Batson to religious affiliation); State v. Davis, 504 N. W. 2d 767, 771 (Minn. 1993) (same). On the other hand, the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before. See, e.g., Post, A Loaded Box of Stereotypes: Despite ‘Batson,’ Race, Gender Play Big Roles in Jury Selection., Nat. L. J., Apr. 25, 2005, pp. 1, 18 (discussing common reliance on race and gender in jury selection). For example, one jury- selection guide counsels attorneys to perform a “demo- graphic analysis” that assigns numerical points to charac- teristics such as age, occupation, and marital status—in addition to race as well as gender. See V. Starr & A. McCormick, Jury Selection 193–200 (3d ed. 2001). Thus, in a hypothetical dispute between a white landlord and an African-American tenant, the authors suggest awarding two points to an African-American venire member while subtracting one point from her white counterpart. Id., at 197–199. For example, a bar journal article counsels lawyers to “rate” potential jurors “demographically (age, gender, marital status, etc.) and mark who would be under stereo- typical circumstances [their] natural enemies and allies.” Drake, The Art of Litigating: Deselecting Jurors Like the Pros, 34 Md. Bar J. 18, 22 (Mar.–Apr. 2001) (emphasis in original). For example, materials from a legal convention, while noting that “nationality” is less important than “once was thought,” and emphasizing that “the answers a prospec- tive juror gives to questions are much more valuable,” still point out that “[s]tereotypically” those of “Italian, French, and Spanish” origin “are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;] [p]ersons of German, Scandinavian, Swedish, Finnish, 6 MILLER-EL v. DRETKE BREYER, J., concurring Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense”; African- Americans “have always been considered good for the plaintiff,” and “[m]ore politically conservative minorities will be more likely to lean toward defendants.” Blue, Mirroring, Proxemics, Nonverbal Communication and Other Psychological Tools, Advocacy Track—Psychology of Trial, Association of Trial Lawyers of America Annual Convention Reference Materials, 1 Ann. 2001 ATLA–CLE 153, available at WESTLAW, ATLA–CLE database (June 8, 2005). For example, a trial consulting firm advertises a new jury-selection technology: “Whether you are trying a civil case or a criminal case, SmartJURY™ has likely deter- mined the exact demographics (age, race, gender, educa- tion, occupation, marital status, number of children, relig- ion, and income) of the type of jurors you should select and the type you should strike.” SmartJURY Product Infor- mation, http://www.cts-america.com/smartjury_pi.asp (as visited June 8, 2005, and available in Clerk of Court’s case file). These examples reflect a professional effort to fulfill the lawyer’s obligation to help his or her client. Cf. J. E. B., supra, at 148–149 (O’CONNOR, J., concurring) (observing that jurors’ race and gender may inform their perspective). Nevertheless, the outcome in terms of jury selection is the same as it would be were the motive less benign. And as long as that is so, the law’s antidiscrimination command and a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes. Finally, a jury system without peremptories is no longer unthinkable. Members of the legal profession have begun serious consideration of that possibility. See, e.g., Allen v. Florida, 596 So. 2d 1083, 1088–1089 (Fla. App. 1992) (Hubbart, J., concurring); Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temp. L. Rev. 369 Cite as: 545 U. S. ____ (2005) 7 BREYER, J., concurring (1992) (authored by Senior Judge on the U. S. District Court for the Eastern District of Pennsylvania); Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809 (1997) (au- thored by a Colorado state-court judge); Altschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Chal- lenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 199–211 (1989); Amar, Reinventing Juries: Ten Sug- gested Reforms, 28 U. C. D. L. Rev. 1169, 1182–1183 (1995); Melilli, 71 Notre Dame L. Rev., at 502–503; Page, 85 B. U. L. Rev., at 245–246. And England, a common-law jurisdiction that has eliminated peremptory challenges, continues to administer fair trials based largely on ran- dom jury selection. See Criminal Justice Act, 1988, ch. 33, §118(1), 22 Halsbury’s Statutes 357 (4th ed. 2003 reissue) (U. K.); see also 2 Jury Service in Victoria, Final Report, ch. 5, p. 165 (Dec. 1997) (1993 study of English barristers showed majority support for system without peremptory challenges). III I recognize that peremptory challenges have a long historical pedigree. They may help to reassure a party of the fairness of the jury. But long ago, Blackstone recog- nized the peremptory challenge as an “arbitrary and capricious species of [a] challenge.” 4 W. Blackstone, Commentaries on the Laws of England 346 (1769). If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury’s democratic origins and undermine its represen- tative function. See 1 A. de Tocqueville, Democracy in America 287 (H. Reeve transl. 1900) (“[T]he institution of the jury raises the people . . . to the bench of judicial au- thority [and] invests [them] with the direction of society”); A. Amar, The Bill of Rights 94–96 (1998) (describing the Founders’ vision of juries as venues for democratic partici- 8 MILLER-EL v. DRETKE BREYER, J., concurring pation); see also Stevens, Foreword, Symposium: The Jury at a Crossroad: The American Experience, 78 Chi.-Kent L. Rev. 907, 907–908 (2003) (citizens should not be denied the opportunity to serve as jurors unless an impartial judge states a reason for the denial, as with a strike for cause). The “scientific” use of peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government. See, e.g., S. O’Connor, Juries: They May Be Broke, But We Can Fix Them, Chautauqua Institution Lecture, July 6, 1995. And, of course, the right to a jury free of discriminatory taint is constitutionally protected—the right to use per- emptory challenges is not. See Stilson v. United States, 250 U. S. 583, 586 (1919); see also Ross v. Oklahoma, 487 U. S. 81, 88 (1988) (defendant’s loss of a peremptory chal- lenge does not violate his right to an impartial jury). Justice Goldberg, dissenting in Swain v. Alabama, 380 U. S. 202 (1965), wrote, “Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge per- emptorily, the Constitution compels a choice of the for- mer.” Id., at 244; see also Batson, 476 U. S., at 107 (Mar- shall, J., concurring) (same); Edmonson, 500 U. S., at 630 (KENNEDY, J.) (“[I]f race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution”). This case sug- gests the need to confront that choice. In light of the considerations I have mentioned, I believe it necessary to reconsider Batson’s test and the peremptory challenge system as a whole. With that qualification, I join the Court’s opinion. Cite as: 545 U. S. ____ (2005) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 03–9659 _________________ THOMAS JOE MILLER-EL, PETITIONER v. DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 13, 2005] JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting. In the early morning hours of November 16, 1985, peti- tioner Thomas Joe Miller-El and an accomplice, Kennard Flowers, robbed a Holiday Inn in Dallas, Texas. Miller-El and Flowers bound and gagged hotel employees Donald Hall and Doug Walker, and then laid them face down on the floor. When Flowers refused to shoot them, Miller-El shot each twice in the back, killing Walker and rendering Hall a paraplegic. Miller-El was convicted of capital mur- der by a jury composed of seven white females, two white males, a black male, a Filipino male, and a Hispanic male. For nearly 20 years now, Miller-El has contended that prosecutors peremptorily struck potential jurors on the basis of race. In that time, seven state and six federal judges have reviewed the evidence and found no error. This Court concludes otherwise, because it relies on evi- dence never presented to the Texas state courts. That evidence does not, much less “clear[ly] and convincing[ly],” show that the State racially discriminated against poten- tial jurors. 28 U. S. C. §2254(e)(1). However, we ought not even to consider it: In deciding whether to grant Miller-El relief, we may look only to “the evidence presented in the 2 MILLER-EL v. DRETKE THOMAS, J., dissenting State court proceeding.” §2254(d)(2). The majority ig- nores that restriction on our review to grant Miller-El relief. I respectfully dissent. I Miller-El requests federal habeas relief from a state- court judgment, and hence our review is controlled by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Because Miller-El’s claim of racial discrimination in jury selection was adjudicated on the merits in Texas state court, AEDPA directs that a writ of habeas corpus “shall not be granted” unless the state court’s decision “was based on an unreasonable determina- tion of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d)(2) (emphasis added). To obtain habeas relief, then, Miller-El must show that, based on the evidence before the Texas state courts, the only reasonable conclusion was that prosecutors had racially discriminated against prospective jurors. He has not even come close to such a showing. The state courts held two hearings, but despite ample opportunity, Miller- El presented little evidence that discrimination occurred during jury selection. In view of the evidence actually presented to the Texas courts, their conclusion that the State did not discriminate was eminently reasonable. As a close look at the state-court proceedings reveals, the ma- jority relies almost entirely on evidence that Miller-El has never presented to any Texas state court. A Jury selection in Miller-El’s trial took place over five weeks in February and March 1986. During the process, 19 of the 20 blacks on the 108-person venire panel were not seated on the jury: 3 were dismissed for cause, 6 were dismissed by the parties’ agreement, and 10 were peremp- Cite as: 545 U. S. ____ (2005) 3 THOMAS, J., dissenting torily struck by prosecutors. Miller-El objected to 8 of these 10 strikes, asserting that the prosecutors were discriminating against black veniremen. Each time, the prosecutors proffered a race-neutral, case-related reason for exercising the challenge, and the trial court permitted the venireman to be removed. The remaining black veni- reman, Troy Woods, served on the jury that convicted Miller-El. At the completion of voir dire, Miller-El moved to strike the jury under this Court’s decision in Swain v. Alabama, 380 U. S. 202 (1965), which required Miller-El to prove “systematic exclusion of black persons through the use of peremptories over a period of time.” Powers v. Ohio, 499 U. S. 400, 405 (1991). At the pretrial Swain hearing in March 1986, Miller-El presented three types of documen- tary evidence: the juror questionnaires of the 10 black veniremen struck by the State; excerpts from a series of newspaper articles on racial bias in jury selection; and a manual on jury selection in criminal cases authored by a former Dallas County prosecutor. The voir dire transcript was part of the official record. Miller-El, however, intro- duced none of the other 98 juror questionnaires, no juror cards, and no evidence related to jury shuffling. See ante, at 23–24, n. 15. Miller-El also presented nine witnesses, five of whom had spent time as prosecutors in the Dallas County Dis- trict Attorney’s (D. A.) Office and five of whom were cur- rent or former judges in Dallas County. Their testimony made three things clear. First, the D. A.’s Office had never officially sanctioned or promoted racial discrimina- tion in jury selection, as several witnesses testified, in- cluding the county’s Chief Public Defender as well as one of the first black prosecutors to serve in the D. A.’s Office. App. 842 (Baraka); id., at 846–848 (Tait); id., at 860 (Entz); id., at 864 (Kinkeade). Second, witnesses testified that, despite the absence of any official policy, individual 4 MILLER-EL v. DRETKE THOMAS, J., dissenting prosecutors had almost certainly excluded blacks in par- ticular cases. Id., at 830, 833 (Hampton); id., at 841–842 (Baraka); id., at 846–848 (Tait); id., at 863–864 (Kinkeade). Third and most important, no witness testi- fied that the prosecutors in Miller-El’s trial—Norman Kinne, Paul Macaluso, and Jim Nelson—had ever engaged in racially discriminatory jury selection. Id., at 843 (Ba- raka); id., at 859 (Entz); id., at 863 (Kinkeade). The trial court concluded that, although racial discrimination “may have been done by individual prosecutors in individual cases[,]” there was no evidence of “any systematic exclu- sion of blacks as a matter of policy by the District Attor- ney’s office.” Id., at 882–883. Miller-El was then tried, convicted, and sentenced to death. While his appeal was pending, this Court decided Batson v. Kentucky, 476 U. S. 79 (1986). Batson an- nounced a new three-step process for evaluating claims that a prosecutor used peremptory challenges to strike prospective jurors because of their race: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must deter- mine whether the defendant has shown purposeful discrimination.” Miller-El v. Cockrell, 537 U. S. 322, 328–329 (2003) (Miller-El I). The Texas Court of Criminal Appeals remanded Miller- El’s case for a hearing to be held under Batson. B At the Batson hearing in May 1988, before the same judge who had presided over his trial, Miller-El sought to establish that prosecutors at his trial had struck potential Cite as: 545 U. S. ____ (2005) 5 THOMAS, J., dissenting jurors on the basis of their race. To make his prima facie case, Miller-El reintroduced some of what he had pre- sented two years earlier at the Swain hearing: the testi- mony of the nine witnesses, the 10 juror questionnaires, and the excerpted newspaper articles. App. 893–895. The court instructed the State to explain its strikes. Id., at 898–899. Of the 10 peremptory strikes at issue, prosecu- tors had already explained 8 at trial in response to Miller- El’s objections. The State therefore called Paul Macaluso, one of the prosecutors who had conducted the voir dire, to testify regarding his reasons for striking veniremen Paul Bailey and Joe Warren. Macaluso testified that he had struck Bailey because Bailey seemed firmly opposed to the death penalty, even though Bailey tempered his stance during voir dire. Id., at 905–906. This was accurate. Bailey expressed forceful opposition to the death penalty when questioned by Macaluso. See, e.g., 11–(A) Record of Voir Dire 4110 (here- inafter Record) (“I don’t believe in capital punishment. Like I said on [my juror questionnaire], I don’t believe anyone has the right to take another person’s life”); id., at 4112 (saying that he felt “[v]ery strongly” that the State should not impose the death penalty). Later, however, when questioned by defense counsel, Bailey said that he could impose the death penalty if the State proved the necessary aggravating circumstances. Id., at 4148–4150, 4152. When the trial court overruled the State’s challenge for cause, the State exercised a peremptory challenge. Id., at 4168. Macaluso next testified that he dismissed venireman Warren because Warren gave inconsistent answers re- garding his ability to apply the death penalty and because Warren’s brother had been recently convicted. App. 908– 910. Macaluso conceded that Warren was not as clearly unfavorable to the State as Bailey. Id., at 911. Neverthe- less, Macaluso struck Warren because it was early in the 6 MILLER-EL v. DRETKE THOMAS, J., dissenting jury selection process and the State had plenty of remain- ing peremptories with which it could remove marginal jurors. Macaluso candidly stated that he might not have removed Warren if fewer peremptories had been available. Id., at 910. After the State presented nonracial, case-related rea- sons for all its strikes, the focus shifted to Batson’s third step: whether Miller-El had “carried his burden of proving purposeful discrimination.” Purkett v. Elem, 514 U. S. 765, 768 (1995) (per curiam); Batson, supra, at 97–98. At this point, Miller-El stood on his Swain evidence. App. 921. That evidence bore on whether some Dallas County prosecutors had discriminated generally in past years; none of the evidence indicated that the prosecutors at Miller-El’s trial—Kinne, Macaluso, and Nelson—had discriminated in the selection of Miller-El’s jury. More- over, none of this generalized evidence came close to dem- onstrating that the State’s explanations were pretextual in Miller-El’s particular trial. Miller-El did not even attempt to rebut the State’s racially neutral reasons at the hear- ing. He presented no evidence and made no arguments. Id., at 919–922. Nevertheless, the majority concludes that the trial judge was unreasonable in finding as a factual matter that the State did not discriminate against black veniremen. Ante, at 33. That is not so “in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d)(2). From the scanty evidence presented to the trial court, “it is at least reasonable to conclude” that purposeful discrimina- tion did not occur, “which means that the state court’s determination to that effect must stand.” Early v. Packer, 537 U. S. 3, 11 (2002) (per curiam). II Not even the majority is willing to argue that the evi- dence before the state court shows that the State dis- Cite as: 545 U. S. ____ (2005) 7 THOMAS, J., dissenting criminated against black veniremen. Instead, it bases its decision on juror questionnaires and juror cards that Miller-El’s new attorneys unearthed during his federal habeas proceedings and that he never presented to the state courts.1 Ante, at 23–24, n. 15. Worse still, the ma- jority marshals those documents in support of theories that Miller-El never argued to the state courts. AEDPA does not permit habeas petitioners to engage in this sort of sandbagging of state courts. A The majority discusses four types of evidence: (1) the alleged similarity between black veniremen who were struck by the prosecution and white veniremen who were not; (2) the apparent disparate questioning of black and white veniremen with respect to their views on the death penalty and their ability to impose the minimum punish- ment; (3) the use of the “jury shuffle” by the prosecution; and (4) evidence of historical discrimination by the D. A.’s Office in the selection of juries. Only the last was ever put before the Texas courts—and it does not prove that any constitutional violation occurred at Miller-El’s trial. The majority’s discussion of the other types of evidence relies on documents like juror questionnaires and juror cards that were added to the record before the District Court. The majority’s willingness to reach outside the state- court record and embrace evidence never presented to the Texas state courts is hard to fathom. AEDPA mandates that the reasonableness of a state court’s factual findings be assessed “in light of the evidence presented in the State court proceeding,” 28 U. S. C. §2254(d)(2), and also circum- scribes the ability of federal habeas litigants to present —————— 1 The supplemental material appears in a joint lodging submitted by the parties. It includes the State’s copies of questionnaires for 12 prospective jurors (11 of whom served at Miller-El’s trial), and the State’s juror cards for all 108 members of the venire panel. 8 MILLER-EL v. DRETKE THOMAS, J., dissenting evidence that they “failed to develop” before the state courts. §2254(e)(2); Williams v. Taylor, 529 U. S. 420, 429– 430 (2000). Miller-El did not argue disparate treatment or disparate questioning at the Batson hearing, so he had no reason to submit the juror questionnaires or cards to the trial court. However, Miller-El could have developed and presented all of that evidence at the Batson hearing.2 Consequently, he must satisfy §2254(e)(2)’s requirements to adduce the evidence in federal court—something he cannot do. Williams, supra, at 437 (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings”). For instance, there is no doubt that Miller-El’s supplemental material could have been “previ- ously discovered through the exercise of due diligence.” §2254(e)(2)(A)(ii). Just last Term, we summarily reversed the Court of Appeals for the Sixth Circuit for doing what the Court does here: granting habeas relief on the basis of evidence not presented to the state court. See Holland v. Jackson, 542 U. S. ___, ___ (2004) (per curiam). We reaffirmed “that whether a state court’s decision was unreasonable must be assessed in light of the record the court had before it.” Id., at ___ (slip op., at 3); see also Miller-El I, 537 U. S., at 348 (“[P]etitioner must demonstrate that a state court’s . . . factual determination was ‘objectively unreasonable’ in light of the record before the court”). In an about-face, the —————— 2 The juror questionnaires had been in Miller-El’s possession since before the 1986 Swain hearing; Miller-El’s attorneys used them during the voir dire. But because Miller-El did not argue disparate treatment or questioning at the Batson hearing, Miller-El’s attorneys had no reason to submit the questionnaires to the trial court. The juror cards could have been requested at any point under the Texas Public Infor- mation Act. See Supplemental Briefing on Batson/Swain Claim Based on Previously Unavailable Evidence, Record in No. 00–10784 (CA5), p. 2494. Cite as: 545 U. S. ____ (2005) 9 THOMAS, J., dissenting majority now reverses the Court of Appeals for the Fifth Circuit for failing to grant habeas relief on the basis of evidence not before the state court. By crediting evidence that Miller-El never placed before the state courts, the majority flouts AEDPA’s plain terms and encourages habeas applicants to attack state judgments collaterally with evidence never tested by the original triers of fact. B The majority presents three arguments for ignoring AEDPA’s requirement that the state-court decision be unreasonable “in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d)(2). None is persuasive. 1 First, without briefing or argument on the question, the majority hints that we may ignore AEDPA’s limitation on the record under §2254(d)(2) because the parties have ignored it. Ante, at 23–24, n. 15. The majority then quickly retreats and expressly does not decide the ques- tion. Ibid. But its retreat is as inexplicable as its ad- vance: Unless §2254(d)(2) is waivable and the parties have waived it, the majority cannot consider evidence outside the state-court proceedings, as it concededly does. The majority’s venture beyond the state-court record is indefensible. Even if §2254(d) is not jurisdictional, but see Lindh v. Murphy, 521 U. S. 320, 343–344 (1997) (REHNQUIST, C. J., dissenting), “it shares the most salient characteristic of jurisdictional statutes: Its commands are addressed to courts rather than to individuals,” id., at 344. Section 2254(d) speaks directly to federal courts when it states that a habeas application by a state prisoner “shall not be granted” except under the specified conditions. (Emphasis added); ibid. (REHNQUIST, C. J., dissenting). The strictures of §2254(d) are not discretionary or waiv- 10 MILLER-EL v. DRETKE THOMAS, J., dissenting able. Through AEDPA, Congress sought to ensure that federal courts would defer to the judgments of state courts, not the wishes of litigants. Nevertheless, there is no need to decide whether §2254(d)(2) may be waived, for the State has not waived it. Contrary to the majority’s assertions, ante, at 23–24, n. 15, the State has argued that §2254(d)(2) bars our review of certain evidence not before the state trial court, Brief for Respondent 41–42, just as it did in its last appearance, see Brief for Respondent in Miller-El I, O. T. 2002, No. 01– 7662, pp. 28–29, 39. The majority is correct that the State has not argued §2254(d)(2) precludes consideration of the juror questionnaires and juror cards in particular, ante, at 23–24, n. 15, but the majority does not assert that the State may selectively invoke §2254(d)(2) to cherry-pick only favorable evidence that lies outside the state-court record. 2 The majority next suggests that the supplemental mate- rial, particularly the juror questionnaires, might not ex- pand on what the state trial court knew, since “the same judge presided over the voir dire, the Swain hearing, and the Batson hearing, and the jury questionnaires were subjects of reference at the voir dire.” Ante, at 23–24, n. 15. This is incorrect. At the Batson hearing, Miller-El introduced into evidence only the questionnaires of the 10 black veniremen peremptorily struck by the State. App. 893–895. The questionnaires of the other 98 veniremen— including many on which the majority relies—were never introduced into evidence or otherwise placed before the trial judge. Miller-El and the State had copies; the trial judge did not. Yet the majority insinuates that the questionnaires effectively were before the state court because they “were subjects of reference at the voir dire.” Ante, at 23–24, Cite as: 545 U. S. ____ (2005) 11 THOMAS, J., dissenting n. 15. That is extremely misleading on the facts of this case. Although counsel for Miller-El and the State ques- tioned witnesses partially on the basis of their question- naire responses, the lawyers’ references to questionnaires were scattered and sporadic. Even the majority does not attempt to show that the specific questionnaire responses on which it relies were called to the trial court’s attention. Clearly they were not called to the trial court’s attention at the only time that mattered: the Batson hearing. The majority’s insinuation is doubly misleading when coupled with its insistence that “the transcript of voir dire . . . was before the state courts.” Ante, at 7–8, n. 2. Miller- El’s arguments gave the state court no reason to go leafing through the voir dire transcript. What is more, voir dire at Miller-El’s trial lasted five weeks, and the transcript occupies 11 volumes numbering 4,662 pages. To think that two years after the fact a trial court should dredge up on its own initiative passing references to unseen ques- tionnaires—references buried in a more than 4,600-page transcript no less—is unrealistic. That is why §2254(d)(2) demands that state courts be taken to task only on the basis of evidence “presented in the State court proceed- ing.” The 98 questionnaires before the parties, unlike the 10 questionnaires that Miller-El entered into evidence, were not “presented” to the state court. The majority also asserts that by considering the ques- tionnaires, it is only attempting to help the State. After all, the State claims that any disparate questioning and treatment of black and white veniremen resulted from their questionnaires, not their respective races. As the majority sees it, if the questionnaires are not properly before us, then the State cannot substantiate its defense. This is a startling repudiation of both Batson and AEDPA. A strong presumption of validity attaches to a trial court’s factual finding at Batson’s third step, Her- nandez v. New York, 500 U. S. 352, 364 (1991) (plurality 12 MILLER-EL v. DRETKE THOMAS, J., dissenting opinion); id., at 372 (O’CONNOR, J., concurring in judg- ment); see also Batson, 476 U. S., at 98, n. 21, and that presumption is doubly strong when the Batson finding is under collateral attack in habeas, Miller-El I, 537 U. S., at 340. Thus, it is Miller-El’s burden to prove racial dis- crimination under Batson, and it is his burden to prove it by clear and convincing evidence under AEDPA. Without the questionnaires never submitted to the trial court, Miller-El comes nowhere near establishing that race motivated any disparate questioning or treatment, which is precisely why the majority must strain to include the questionnaires within the state-court record. That Miller-El needs the juror questionnaires could not be clearer in light of how the Batson hearing unfolded. After offering racially neutral reasons for all of its strikes, the State could have remained silent—as Miller-El did. However, the State pointed out, among other [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/799976. Public record. Not legal advice.