Quang Bui v. Michael Haley, Commissioner, Alabama Department of Corrections

BLACK, Circuit Judge,

dissenting:

I respectfully disagree with the majority on three points. First, I think the prosecution more than carried its limited burden of production at Batson’s step two, a conclusion the majority sidesteps in part by heightening the prosecution’s burden and conflating the step two and step. three analyses. Second, I think the majority fails to respect the presumption of correctness that AEDPA mandates for Batson determinations, a presumption that can be rebutted only by petitioner Bui with clear and convincing evidence (which he lacks in this case). Finally, I think the majority announces a new rule of law that is not only unjustifiable but also inconsistent with our precedents.

I.

To reach its result, the majority confronts the following obstacle: Batson determinations are factual, and factual determinations are presumed correct under 28 U.S.C. § 2254 (e)(1). To avoid this obstacle, the majority must point to clear and convincing evidence that shows the state court’s Batson conclusions to be “unreasonable determination^] of the facts.” 28 U.S.C. § 2254 (d)(2). Rather than pointing to such clear and convincing evidence, the majority circumvents the presumption of correctness by concluding the prosecution failed to meet its burden at Batson’s step two. See Opinion at 1315-16 (“[T]he circuit court would have been unable to find that the State had carried its burden [at step two], and would have granted Bui relief for the violation of his equal protection rights.”).

This is an anomalous conclusion because the prosecution’s burden at step two is so light. The Supreme Court has emphasized that the prosecution need only articulate or proffer 1 a rationale for its strikes that *1319 is facially race-neutral. See Purkett v. Elem, 514 U.S. 765, 768 , 115 S.Ct. 1769, 1771 , 131 L.Ed.2d 834 (1995) (“At this [second]. step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”) (citation omitted); United, States v. Brown, 299 F.3d 1252, 1255 (llth Cir. 2002) (“If the explanations of the strike offered in response are devoid of inherent discriminatory intent, even if not persuasive, the court then proceeds 'to the ultimate inquiry of whether the objecting party has shown purposeful discrimination.”). The Court has said that even if the prosecution’s explanation is implausible, it carries the burden of production. Purkett, 514 U.S. at 767-68 , 115 S.Ct. at 1771 ; United States v. Novaton, 271 F.3d 968, 1002 (llth Cir.2001); United States v. Tokars, 95 F.3d 1520, 1533 (11th Cir.1996). In other words, Batson’s step two screens out very few reasons proffered by the prosecution as a legitimate nondiscriminatory reason for its strikes.

Of course, certain proffered reasons are clearly barred. A prosecutorial hunch is not sufficient for Batson’s step two. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723 (“But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.”). Nor can the prosecution simply plead its good faith or lack of a discriminatory motive. Id. at 98, 106 S.Ct. at 1723-24. On the other hand, the prosecution’s step two explanation “need not rise to the level of justifying exercise of a challenge for cause.” Id. at 97, 106 S.Ct. at 1723. “What [Batson] means by a ‘legitimate reason’ is not' a reason that makes sense, but a reason that does not deny equal protection.” Purkett, 514 U.S. at 769 , 115 S.Ct. at 1771 .

The evidentiary requirements of Bat-son ’s step two are illuminated by the analogous requirements of the similar, three-step burden-shifting regime of McDonnell Douglas and its progeny. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993). 2 Thus, at step two, a defendant employer must articulate a legitimate nondiscriminatory reason that is “clear and reasonably specific.” Burdine, 450 U.S. at 258 , 101 S.Ct. at 1096 . The defendant employer “need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254 , 101 S.Ct. at 1094 . The Supreme Court later clarified what evidence is sufficient to car *1320 ry the burden at step two: “evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Hicks, 509 U.S. at 509 , 113 S.Ct. at 2748 . As in the Batson context, very little is required to carry the burden of production at step two; indeed, we have described this burden as “exceedingly light.” Walker v. NationsBank, 53 F.3d 1548, 1556 (11th Cir.1995).

Once the prosecution has met its burden of production under Batson’s step two, the district court must then evaluate the evidence and determine whether the objector has met his burden of proving a discriminatory motive. Burkett, 514 U.S. at 767 , 115 S.Ct. at 1770-71 (“If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.”); Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (“The trial court then will have the duty to determine if the defendant has established purposeful discrimination.”). Evaluation of the evidence is appropriate only after the government has sufficiently articulated its nondiscriminatory reason for exercising its strikes. As the Supreme Court has explained in the employment discrimination context, “the determination that a defendant has met its burden of production ... can involve no credibility assessment. For the burden-of-production determination necessarily precedes the credibility-assessment stage.” Hicks, 509 U.S. at 509 , 113 S.Ct. at 2748 .

In short, to satisfy Batson’s step two, the State has only to proffer or articulate reasons that are facially race-neutral. It is Bui — at Batson’s step three — who bears the ultimate burden of proving the reasons proffered by the State are pretextual and the real reason for the prosecution’s strikes is purposeful discrimination.

Whatever teeth Batson’s step two has are derived from the immediacy with which the prosecution must ordinarily carry its burden of producing a race-neutral reason for exercising its strikes; in the usual case, the objector will state her Bat-son objection and prima facie case, and the prosecution .will then be required to proffer at once its race-neutral explanation. The only way for the prosecution to fail at step two is for it to falter in articulating its race-neutral reason, either by adverting to a mere hunch or else stating a reason that is discriminatory on its face. See Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. Indeed, the ease with which the prosecution could articulate a race-neutral reason has led to the common criticism that the three-step Batson analysis proves an illusory defense to discrimination in jury selection. See id. at 106, 106 S.Ct. at 1728 (Marshall, J., concurring) (“Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons.”). That criticism is premised on the correct understanding of the law of Batson, which places on the prosecution only a very light burden of production at step two. 3

Given the ease with which the prosecution can survive Batson’s step two, it is remarkable that the majority decides this case at step two. See Opinion at 1430. The transcripts of the 1991 and 1992 Bat- *1321 son hearings does not indicate that the prosecution asserted a facially discriminatory reason or mere hunch, nor did it rebut Bui’s prima facie case with assertions of its own good faith. Thus, nothing suggests that the prosecution’s effort to come forward with a facially race-neutral reason for its strikes suffered from the normal defects that attend Batson’s step two.

The question the majority should therefore ask is whether Brooks’ presentations permitted a fact-finder to conclude the prosecution had articulated a race-neutral reason for striking the jury. See Hicks, 509 U.S. at 509 , 113 S.Ct. at 2748 (describing the burden of production at McDonnell Douglas’s step two as introducing evidence that permits a finding of a nondiscriminatory reason). Recall that Brooks did not need evidence rising to the level justifying a challenge for cause. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Indeed, Brooks’ stated reason did not even have to make sense. Purkett, 514 U.S. at 769 , 115 S.Ct. at 1771 (“What it means to be a ‘legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection.”). All that matters is that Brooks — the second-chair prosecutor, who participated extensively in the trial — articulated facially race-neutral reasons, which taken as true, would permit the conclusion that there were nondiscriminatory reasons for the prosecution’s strikes. Id. at 768 , 115 S.Ct. at 1771 (“the issue is the facial validity of the prosecutor’s explanation”); Hicks, 509 U.S. at 509 , 113 S.Ct. at 2748 (requiring that the reasons stated at step two be “taken as true” and that credibility assessments be deferred until step three).

This is exactly what the trial court concluded and the Alabama Supreme Court ultimately affirmed: “the trial court could have reasonably inferred ... that Ms. Brooks and Evans worked as a team in striking the jury, and, thus, that the reasons given by Ms. Brooks for striking the black persons from the venire were the reasons [for the strikes].” Bui v. State, 627 So.2d 855, 859 (Ala.1992). The majority emphasizes that the trial court only “could have” so inferred, not that it was required to do so based on Brooks’ presentation. Yet this hypothetical inference, if taken as true, is more than sufficient to carry the prosecution’s burden at step two. See Hicks, 509 U.S. at 509 , 113 S.Ct. at 2748 (requiring the reason articulated at step two be taken as true). After all, the step two burden can be carried with even a “silly and superstitious” reason. Purkett, 514 U.S. at 768 , 115 S.Ct. at 1771 .

In other words, the majority — despite its claims to the contrary — is not deciding this case at Batson’s step two, where it might be possible to overcome AEDPA’s presumption of correctness by finding that the prosecution’s rebuttal was “wholly unsupported by the record.” See Opinion at 1315. What the majority does is slide its review into step three. This move is manifest when the majority claims “Brooks had to convince the court — five years later— not only that she knew Evans’s state of mind, but also that he had in fact changed that state of mind before he made the strikes.” Id. (emphasis added). This misstates the prosecution’s burden at Bat-son’s step two. The prosecution must simply produce a facially nondiscriminatory reason for its strikes. It need not “convince” the court of anything. See Purkett, 514 U.S. at 768 , 115 S.Ct. at 1771 (stating that it was error to “requir[e] that the justification tendered at the second step be not just neutral but also at least minimally persuasive”); Brown, 299 F.3d at 1255 (“If the explanations of the strikes offered in response are devoid of inherent discriminatory intent, even if not persuasive, the court then proceeds to the ulti *1322 mate inquiry of whether the objecting party has shown purposeful discrimination”) (emphasis added); see also Hicks, 509 U.S. at 509 , 113 S.Ct. at 2748 (limiting evaluation of a proffered race-neutral reason to step three, not step two).

By drifting into Batson’s step three, the majority makes another error in its analysis. At step three, Bui — not the State— bears the burden of proof. Purkett, 514 U.S. at 768 , 115 S.Ct. at 1771 (“It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent has carried his burden of proving purposeful discrimination.”) (second emphasis added); Novaton, 271 F.3d at 1002-03 . The panel majority never claims that Bui produces any evidence that could carry this burden; after all, the majority denies that it has reached the step three inquiry, despite making judgments about persuasiveness that are not appropriate at step two.

An accurate Batson step two inquiry can only conclude with the factual finding that the prosecution carried its minimal burden of producing a facially race-neutral reason for its strikes. That reason can be evaluated only at step three of Batson, at which point Bui would bear the burden of proving that the prosecution’s proffered reasons were pretextual. Bui cannot carry this ultimate burden of persuasion, so his Batson challenge must fail.

II.

In examining the State court’s Batson analysis, the majority should be constrained by the presumptions and burdens established for habeas review in AEDPA. “[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254 (e)(1). 4 A ha-beas petitioner can rebut this presumption of correctness only with clear and convincing evidence. Id. Moreover, the writ cannot be granted unless the State court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State proceeding.” Id. § 2254(d)(2). Although the prosecution bears the minimal burden of production at step two of the original Bat-son hearing, on federal habeas review, Bui now bears the burden of proving, by clear and convincing evidence, that the state courts’ factual findings were unreasonable. This he cannot do.

I must concur with the philosophical truth that a person cannot know the mind of another. Courts nevertheless regularly draw inferences about states of mind based upon the evidence before them. The evidence Brooks presented at the two Batson hearings supports just such an inference. As a member of the prosecution team, Brooks was Evans’ second-chair, and she participated directly at trial. 5 As she *1323 explained at the first Batson hearing, “Mr. Evans was lead counsel and he actually struck the jury. He is unable to be here. I did participate with him in that [i.e., striking the jury]. I was present, I observed him strike, and we had the same information available to us at that time. He was lead counsel, however. We struck primarily on the following bases.” Brooks then went on to articulate the four reasons the prosecution struck certain jurors, including how these reasons applied to specific jurors. For example, in light of Bui’s murdering his children in an allegedly insane rage, Brooks explained that the prosecution team sought a jury of mature, responsible individuals who knew how to handle the pressures of responsibility at work or at home:

We were looking for people who had some maturity, some experience in life, who were old enough perhaps to have children since this involved the death of three children, who perhaps had had marital problems since this apparently was triggered or involved the defense of a relationship between the defendant and his wife, and the defense we anticipated would bring out, and did bring out, some difficulties between the two of them. We were looking for people who had made decisions in life such as, you know, to get married, to take a job, to make job decisions, to make decisions on how to raise their kids. People who had some maturity. Therefore, we made a list of the youngest people, and we attempted to strike based on the youngest.

By the end, Brooks was able to explain how the prosecution team’s strategy led to twelve of its thirteen strikes. 6

In addition, Brooks introduced juror data cards or rosters identical to those used by the prosecution at voir dire; these documents contained the name, address, race, gender, age, occupation, and criminal history of each prospective juror. Some of the documents also included handwritten notations related to the reasons for the prosecution’s strikes. At the second Bat-son hearing, Brooks augmented her previous explanation with her contemporaneous trial notes, which included her hand-written impressions of struck jurors. 7 All of this constitutes circumstantial evidence such that, if it is believed, the State courts could easily conclude, as they did in this case, that Brooks was stating race-neutral reasons for the prosecution’s strikes. Cf. Hicks, 509 U.S. at 509 , 113 S.Ct. at 2748 (describing the step two burden of production as requiring “evidence which, taken as *1324 true, would 'permit the conclusion that there was a nondiseriminatory reason”).

On the basis of Brooks’ presentation, the State courts readily concluded that the prosecution had carried its minimal burden of articulating a facially race-neutral reason for exercising its strikes. Hence, after the first Batson hearing, the trial court explicitly found “the state has articulated clear, cogent, and sound reasons for its peremptory strikes, all being racially neutral.” Bui, 627 So.2d at 858 . The Supreme Court of Alabama subsequently accepted the trial court’s conclusion that “the reasons given by Ms. Brooks for exercising the state’s peremptory strikes were the reasons underlying the state’s use of its peremptory strikes at the trial.” Id. at 859 .

In order to prevail on habeas review, it is up to Bui to show with clear and convincing evidence that these conclusions amounted to an unreasonable determination of the facts. The majority, however, lifts this burden from Bui and instead demands the prosecution prove that which its circumstantial evidence showed: that Brooks was able to report Evans’ state of mind. What the majority does is to drive an epistemological wedge between Brooks and Evans, and then demand that the prosecution overcome it.

The gist of the majority’s argument is that Brooks did not present sufficient evidence at the two Batson hearings to establish that she could speak to what was in Evans’ mind. The majority repeatedly notes that Brooks never affirmatively claimed to have knowledge of Evans’ state of mind. See Opinion at 1311 (“Brooks once again did not claim to have actual knowledge of Evans’s state of mind at jury selection”); id. at 1315 (“Even though Brooks had three opportunities to do so, she never claimed to have actually discussed with Evans his reasons for each of the strikes he exercised.”). Because Brooks never specifically contradicted the majority’s assumption that there was a wedge between her and Evans, the majority rejects the prosecution’s step two rebuttal.

This gets the burdens of proof exactly backwards. The State courts accepted Brooks’ presentation as sufficient to carry the prosecution’s step two burden of production; thus, Bui now bears the burden of proving, by clear and convincing evidence no less, that the State court got it wrong. 28 U.S.C. § 2254 (e)(1). 8 On habeas review, the majority cannot posit its own wedge between Brooks and Evans and then demand that the prosecution rebut it. On habeas review, it is up to Bui to prove that there really is some gap between Evans’ actual state of mind and Brooks’ presentation of the prosecution’s race-neutral reasons for its strikes. Brooks’ failure to assert that she knew what Evans was thinking cannot alter the presumption of correctness that attaches to the State court’s findings. The burden now rests entirely with Bui, and he has failed to carry his burden.

The majority cannot look behind Brooks’ statements and ask whether there is any evidence that affirmatively fills in the inference that Brooks — by virtue of her role in the prosecution — knew Evans’ state of mind when he made the strikes. This *1325 stands federal habeas review under AED-PA on its head. The record does not permit the conclusion that Bui can carry his burden of proving by clear and convincing evidence that the State court’s factual determinations were wrong. 9

III.

In blending Batson’s steps two and three and circumventing the AEDPA presumptions and burdens, the majority effectively announces a new rule: the prosecutor who actually strikes the jury must testify as to her own state of mind, or else the prosecution will have great difficulty carrying its burden of producing a race-neutral reason at Batson’s step two. 10 This rule is wrong because it is premised on a view of Batson’s step two that significantly increases the minimal burden of production that the prosecution bears. See supra Part I. This rule is also mistaken because it appears to have been already rejected by this Circuit.

In Hollingsworth, the defendant raised a Batson challenge to the prosecution’s use of nine of its fourteen peremptory challenges to strike African-American potential jurors. Hollingsworth, 30 F.3d at 110. While it is unclear from the opinion what member of the prosecution’s team actually carried out the strikes, 11 the defendant apparently based part of his Batson challenge on the lead prosecutor’s failure to testify at the Batson hearing. Id. at 113 n. 5. It seems logical to conclude the defendant raised this challenge because the lead prosecutor made the strikes, 12 as Evans did in this case. Nonetheless, the Court in Hollingsworth summarily rejected the Batson challenge predicated on the lead prosecutor’s failure to testify at the hearing. See id. (finding that argument “without merit and warranting] no discussion”). That conclusion follows in part from the minimal burden placed on the prosecution at Batson’s step two; if the prosecution need only articulate facially race-neutral reasons for its strikes, evidence from the lead prosecutor (who presumably carried out the strikes) would not have been required in order to carry the burden.

At the very least, the majority’s rule requiring the lead prosecutor to appear at a Batson hearing is inconsistent with the tenor of our opinion in Hollingsworth. More than that, it is inconsistent with the *1326 law governing the minimal burden of production at Batson’s step two.

IV.

In conclusion, the majority makes three errors: (1) it misapplies the burden of production at the second step of the Bat-son analysis; (2) it lifts the burden of proof from habeas petitioners to rebut the presumption of correctness afforded to state courts’ factual determinations; and (3) it announces an unjustified new rule of law that has most likely already been rejected by this Circuit in Hollingsworth.

In voicing my disagreements with the majority, I take the unusual step of dissenting from a panel opinion I had originally joined. See Bui v. Haley, 279 F.3d 1327 (11th Cir.2002), withdrawn — F.3d -(11th Cir.2003). If nothing else, my doing so confirms that the task of judging is to seek, as best a fallible human being can, the correct result in every case. The quest for the right answer to the issue before us always carries with it the real possibility of an incorrect answer; indeed, the existence of such incorrect answers is the best evidence the judicial quest is for right answers. An honest judge, therefore, might sometimes be called upon to report her own error. I do so in this case because my further reflection convinces me that the answer reached by the majority — the answer I had once accepted — is in fact incorrect. I therefore respectfully dissent.

. The canonical version of step two appears to speak of the prosecution's "articulating” a race-neutral reason for its strikes. See, e.g., United States v. Brown, 299 F.3d 1252, 1255 (1 lth Cir.2002); United States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir.2001); United States v. Tokars, 95 F.3d 1520, 1533 (11th Cir.1996); Hollingsworth v. Burton, 30 F.3d *1319 109, 112 (11th Cir.1994). Batson itself speaks only of “coming forward” with a neutral explanation. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; see also Purkett v. Elem, 514 U.S. 765, 767 , 115 S.Ct. 1769, 1770 , 131 L.Ed.2d 834 (1995). We have also sometimes stated that the prosecution must simply “proffer” an explanation. United States v. Novaton, 271 F.3d 968, 1002 (11th Cir.2001) ("the prosecution must proffer a race-neutral explanation for its strikes”); see also Purkett, 514 U.S. at 769 , 115 S.Ct. at 1771 (referring to the "proffered explanation”). Finally, the Supreme Court has spoken of "tendering” a race-neutral reason. Purkett, 514 U.S. at 767 , 115 S.Ct. at 1770-71 (describing the next step “if a race-neutral reason is tendered").

. The Supreme Court made the same comparison to McDonnell Douglas in Batson. See Batson, 476 U.S. at 94 n. 18, 106 S.Ct. at 1721 n. 18. The three-step analysis in both contexts ultimately derives from the same source, the Constitution’s guarantee of Equal Protection.

. To return to the antilogous employment discrimination context, it is unlikely that an employer will fail at McDonnell Douglas ' step two. Indeed, Judge Denny Chin has observed in a recent article "there is not a single reported case in which a plaintiff prevails at the second step in a discrimination lawsuit be-eaus e a defendant employer is unwilling or unable to articulate a legitimate, nondiscriminatory reason for its employment action." Denny Chin & Jodi Golinsky, Moving Beyond McDonnell Douglas: A Simplified Method for Assessing Evidence in Discrimination Cases, 64 Brook. L.Rev. 659, 665 (1998).

. AEDPA deference is required as to every stage of the Batson analysis because Batson conclusions constitute fact-finding. Allen-Brown, 243 F.3d at 1297 ("[a] district court's finding as to why a juror is excused is an issue of fact''); Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1321 (11th Cir.1999) (“A district court's Batson determinations are largely findings of fact entitled to great deference on review.”); Hollingsworth, 30 F.3d at 112 (“[T]he trial court's finding of no discrimination is a fact finding.”). Even without AEDPA’s deferential standard of review, Bat-son instructs that the trial court's finding of no discrimination is entitled to great deference. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21; Hollingsworth, 30 F.3d at 112 .

. It is obviously quite common for the prosecution to be represented by a team of trial lawyers. It is also common for a trial court to allow only one lawyer at a time to speak for the prosecution. At the two Batson hearings in this case, Brooks was the lawyer who spoke for the prosecution.

. For example, Brooks recounted specific reasons why certain minority jurors were struck:

The state’s first strike was number 66. 66 was a black female. She was 24 years of age. According to our records, we got a match from records or from the D.A.’s office at the time that did this work and provided us with a criminal history of this juror of buying and receiving stolen property, two cases; grand larceny and receiving and concealing stolen property, two cases; theft of property in the second degree, two cases; burglary third and theft of property in the second and a theft of property in the first degree. At the time we struck the jury, we believed that this juror had an extensive criminal history. In addition, she was only 24 years of age....

Our second strike was juror number 80. Number 80 was 20 years old, a black female who had a harassment arrest just a year or so before this case. We struck based on the criminal history and the young age of that juror....

The state’s next strike was number 62. 62 was 24 years old unemployed black male who had a trespassing arrest within a year or so of this case — prior to this case. We struck because of the age, the lack of job, and the criminal history.

. Despite her searches, Brooks was unable to locate any similar trial notes from Evans.

. Of course, Bui carries the ultimate burden of proof in his Batson challenge. Purkett, 514 U.S. at 767 , 115 S.Ct. at 1770 ("If a race-neutral reason explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination."); Batson, 476 U.S. at 98, 106 S.Ct. at 1724 ("The trial court then will have the duty to determine if the defendant has established purposeful discrimination.”).

. I note also that, regarding the prosecution's final strike (for which it could articulate no race-neutral reason) the majority acknowledges the prosecution’s race-neutral reasons for striking the other jurors presents strong circumstantial evidence of its race-neutral reasons for striking this last juror. Because I think the prosecution carried its burden of production at Batson's step two, I would conclude that the prosecution’s proffer of race-neutral reasons for its other strikes was more than sufficient to support the state courts' finding that there was no Batson violation with respect to this challenge.

. To be sure, this is a rule of (hopefully) limited application. In the usual case, the prosecutor who strikes the jury will immediately be called upon to explain her state of mind in doing so.

. The opinion refers to “the prosecution” or “the State.” See Hollingsworth, 30 F.3d at 110-13 . In only one place does the opinion refer to "[t]he prosecutor,” though without identifying a specific lawyer.

. Indeed, it is hard to understand why else the defendant in Hollingsworth , would have argued that the absence of the lead prosecutor at the Batson hearing would have been reversible error. If the lead prosecutor was not the lawyer who carried out the strikes, then her testimony would have contributed little beyond whatever other factual information was already available from the other prosecuting attorneys. Hence, I can understand the defendant's challenge in Hollings-worth — which was summarily rejected by this Court — only if it were substantially the same as the argument the majority accepts here.