WPC@ 2BBcR Z33|[ "m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<HYYY66^E@@@@(JEEE66;,1N11@@@A9<16%7,7(7,A6C/A1>1P7A/:,A1E12156(7(>4E/A1H>E>9(6144>986@9999999999999999999(((((((666666666666666666661111111444444444444>>>>>>>>>>>>>>>>>>>>A7AA>E>1"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^*2gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR2/#c! c"m^3=Iff%==\o3=3offffffffff33oooQzKpzzz~~z=o=o\%ifQpQ=bp=:f=p\ifQQAp_\\U=o=o=3============f=iiiiiQQQQQK=K=K=K=p\\\\pppp~\ip\\~\\ziiiiQQQQpQQQQbbbbbbppK=K=K=K=pfz=z=z=z=z=pppp\\QQQzQzQzQzQ~A~A~Apppppp~\zUzUzUpz=pQzQ~A~\~\p\pNo3w\=QNNfffMDf=f=3GG\==\\pp%G=ooee3o<gn|g|n|SR}{nnnRRnnnnnnnRRRRRRRRRRRRSS"X^?S}}SSS}?S?F}}}}}}}}}}SS}a}SFS}S}ooS}FSF}oaS}}}oc7cS?SS*SSSSSSSSSSF}}}}}oooooaFaFaFaF}}}}}}}}}}}}}oooooooo}}}}}}aFaFaFaF}FFFFF}}oooaaaaSSS}oooFoaS}}}NX?}S}}}}}}KS}K}KF}}}SS}}S}KF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS20ca#c& c'* c-"m^)+9RRzx11IY)1))RRRRRRRRRR))YYYAljjjrjbrz>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQXgwZZskkkkB{sssZZcJRRRkkklWdPZH\I\I\IlWoY2(mWgRklWaMlWs\SCYG\IhSr\lWw_s\_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^!+==\Z%%7C%==========CCC1QOOOVOIV\-=VIhZVIVOEIZOlMMC%C%C7==1?7%;C#!A#bC7?=13+C;V;;5%C%C%%%n%%%%%%%%%%?#O=O=O=O=O=nXO1O7O7O7O7-#-#-#-#ZCV7V7V7V7ZCZCZCZCM;O=V?V7V7M;V7I?O=O=O=O1O1O1O1V?O7O7O7O7V;V;V;V;V;V;\C\C-#-#-#-#=VAI#I#I#I#I#ZCZCZCZCV7V7n\O1O1O1E3E3E3E3I+I+I+ZCZCZCZCZCZClVM;C5C5C5V?I#ZCO1E3I+M;M;V?V7ZCNCC7!1//===%!\\=%QQ=\%++=n77nCCn+n%CC<rA?Footnotes*rsFormats for ASTERISK footnotes'#[ P['CdP# ddf < X01Í Í1*'(Í Í #o P['Cn&P#X` hp x (#%'0*,.8135@8: defendant's Batson objection to the prosecutor's peremptory challenges of two jurors, juror number 22 and juror number 24, on the ground that the defendant had not made out a prima facie case of discrimination. Accordingly, because the defendant had failed at the first step  Jv of the Batson inquiry, the judge saw no need even to confirm the defendant's assertion that jurors 22 and 24  J& were black;J&m 4 uBk ԍ   XgEpXFrThe following exchange took place between the defense attorney and the trial judge:   MR. GOULET: Mr. Larner stated that the reason he struck was because of facial hair and long hair as prejudicial. Number twentyfour, Mr. William Hunt, was a victim in a robbery and he stated that he couldG "!!## give a fair and impartial hearing. To make this a proper record if the Court would like to call up these two individuals to ask them if they are black or will the Court take judicial notice that they are black individuals?   THE COURT: I am not going to do that, no, sir. App. to Pet. for Cert. A!42. nor did the judge require the prosecutor to&"!!  explain his challenges. The prosecutor nevertheless did  J volunteer an explanation,H 4 uB ԍ FTN    XgEpXFr  ddf < The prosecutor stated:  A!  I struck number twentytwo because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goateetype beard. And juror number twentyfour also has a mustache and a goatee type beard. Those are the only two people on the jury, numbers twentytwo and twentyfour with facial hair of any kind of all the men and, of course, the women, those are the only two with the facial hair. And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me. And number twentyfour had been in a robbery in a supermarket with a sawedoff shotgun pointed at his face, and I didn't want him on the jury as this case does not involve a shotgun, and maybe he would feel to have a robbery you have to have a gun, and there is no gun in this case. App. to Pet. for Cert. A!41. but the judge evaluated neither its credibility nor its sufficiency.  The Missouri Court of Appeals affirmed, relying partly on the ground that the use of onethird of the prosecutor's peremptories to strike black veniremen did not  J require an explanation, State v. Elem, 747 S.W.2d 772, 774 (1988), and partly on the ground that if any rebuttal was necessary then the volunteered explanation  J constituted a legitimate `hunch,' g!  id., at 775. The court thus relied, alternatively, on steps one and two of the  JH Batson analysis without reaching the question whether the prosecutor's explanation might have been pretextual under step three.  The Federal District Court accepted a magistrate's recommendation to deny petitioner's petition for habeas corpus without conducting a hearing. The magistrate ""!!  had reasoned that statecourt findings on the issue of purposeful discrimination are entitled to deference. App. to Pet. for Cert. A!27. Even though the trial court had made no such findings, the magistrate treated the statement by the Missouri Court of Appeals that the prosecutor's reasons constituted a legitimate `hunch' !  as  J a finding of fact that was supported by the record.4 uBx ԍ   XgEpXFrThe magistrate stated: The Court of Appeals determined that the prosecutor's reasons for striking the men constituted a legitimate `hunch' .... The record supports the Missouri Court of Appeals' finding of no purposeful discrimination. App. to Pet. for Cert. A!27.   J When the case reached the United States Court of Appeals for the Eighth Circuit, the parties apparently assumed that petitioner had satisfied the first step of  Jp the Batson analysis.%pl4 uB ԍ FTN    XgEpXFr  ddf < In this Court, at least, the State does not deny that the prosecutor's pattern of challenges established a prima facie case of discrimination. The disputed issue in the Court of Appeals was whether the trial judge's contrary finding was academic because the prosecutor's volunteered statement satisfied step two and had not been refuted in step three.  The Court of Appeals agreed with the State that excluding juror 24 was not error because the prosecutor's concern about that juror's status as a former victim of a robbery was related to the case at hand. 25 F.3d 679, 681, 682 (1994). The court did, however, find a  J Batson violation with respect to juror 22. In rejecting the prosecutor's raceneutral explanation for the strike, the Court of Appeals faithfully applied the standard that  Jh we articulated in Batson: The explanation was not  J@   u ! `related to the particular case to be tried.' !  Id., at 683, quoting 476 U.S., at 98 (emphasis in Court of Appeals opinion).  J  Before applying the Batson test, the Court of Appeals noted that its analysis was consistent with both the  Jx Missouri Supreme Court's interpretation of Batson in  JP State v. Antwine, 743 S.W.2d 51 (1987) (en banc), andP"!!   J this Court's intervening opinion in Hernandez v. New  J York, 500 U. S. 352 (1991). 25 F.3d, at 683. Referring to the second stage of the threestep analysis, the  J Antwine court had observed:  J` BQ `C  , , ( N N " We do not believe, however, that Batson is satisfied by `neutral explanations' which are no more than facially legitimate, reasonably specific and  J+ clear. Were facially neutral explanations sufficient  J without more, Batson would be meaningless. It would take little effort for prosecutors who are of such a mind to adopt rote `neutral explanations' which bear facial legitimacy but conceal a discriminatory motive. We do not believe the Supreme Court intended a charade when it announced  J Batson.  743 S.W.2d at 65.[BQ  d   JO  ( , ,  In Hernandez, this Court rejected a Batson claim stemming from a prosecutor's strikes of two Spanishspeaking Latino jurors. The prosecutor explained that he struck the jurors because he feared that they might not accept an interpreter's English translation of trial testimony given in Spanish. Because the prosecutor's explanation was directly related to the particular case to  J7 be tried, it satisfied the second prong of the Batson standard. Moreover, as the Court of Appeals noted, 25  J F.3d, at 683, the plurality opinion in Hernandez expressly observed that striking all venirepersons who speak a given language, without regard to the particular circumstances of the trial, might constitute a pretext for racial discrimination. 500 U.S., at 371!372 (opinion  J of Kennedy, J.).4 uB ԍ   XgEpXFrTrue, the plurality opinion in Hernandez stated that explanations unrelated to the particular circumstances of the trial may be found by the trial judge to be a pretext for racial discrimination, 500 U.S., at  uB 372, and thus it specifically referred to the third step in the Batson v.  uBc Kentucky, 476 U.S. 79 (1986), analysis. Nevertheless, if this comment  uB was intended to modify the Batson standard for determining the sufficiency of the prosecutor's response to a prima facie case, it was"!!##  uB certainly an obtuse method of changing the law.Ħ Based on our precedent, the Court of G"!!  Appeals was entirely correct to conclude that the  J peremptory strike of juror 22 violated Batson because the reason given was unrelated to the circumstances of  J the trial.G4 uB ԍ   XgEpXFrIn my opinion, it is disrespectful to the conscientious judges on the Court of Appeals who faithfully applied an unambiguous standard articulated in one of our opinions to say that they appear to have seized  uB on our admonition in Batson ... that the reason must be `related to the  uB particular case to be tried,' 476 U.S., at 98. Ante, at 4. Of course, they  uB:  seized on that point because we told them to. The Court of Appeals was  uB following Batson's clear mandate. To criticize those judges for doing their jobs is singularly inappropriate.  The Court of Appeals for the Eighth Circuit is not the only court to  uB have taken our admonition in Batson seriously. Numerous courts have acted on the assumption that we meant what we said when we required the prosecutor's neutral explanation to be related to the particular case  uB; to be tried. See, e.g., Jones v. Ryan, 987 F.2d 960, 974 (CA3 1993); Ex  uB parte Bird, 594 So. 2d 676, 682!683 (Ala. 1991); State v. Henderson, 112  uB Ore. App. 451, 456, 829 P. 2d 1025, 1028 (1992); Whitsey v. State, 796 S.  uB` W. 2d 707, 713!716 (Tex. Crim. App. 1989); Jackson v. Commonwealth,  uB 8 Va. App. 176, 186!187, 380 S. E. 2d 1, 6!7 (1989); State v. Butler, 731  uB S. W. 2d 265, 271 (Mo. App. 1987); Slappy v. State, 503 So. 2d 350, 355  uB (Fla. App. 1987); Walker v. State, 611 So. 2d 1133, 1142 (Ala. Crim. App.  uB< 1992); Huntley v. State, 627 So. 2d 1011, 1012 (Ala. Crim. App. 1991). This Court today calls into question the reasoning of all of these decisions without even the courtesy of briefing and argument.  Today, without argument, the Court replaces the  J8 Batson standard with the surprising announcement that any neutral explanation, no matter how implausible or  J fantastic, ante, at 3, even if it is silly or superstitious,  J ibid., is sufficient to rebut a prima facie case of discrimination. A trial court must accept that neutral explanation unless a separate step three inquiry leads to the conclusion that the peremptory challenge was racially motivated. The Court does not attempt to explain why a statement that the juror had a beard, or the juror's last name began with the letter `S' !  should satisfy step two, though a statement that I had a hunch should  J not. See ante, at 4; Batson, 476 U.S., at 98. It is not "!!  too much to ask that a prosecutor's explanation for his  J strikes be race neutral, reasonably specific, and trial related. Nothing less will serve to rebut the inference of racebased discrimination that arises when the  J` defendant has made out a prima facie case. Cf. Texas  J8 Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). That, in any event, is what we decided in  J Batson.  9H1 d d7II؃  2  The Court's peremptory disposition of this case overlooks a tricky procedural problem. Ordinarily, a  J federal appeals court reviewing a claim of Batson error in a habeas corpus proceeding must evaluate, with appropriate deference, the factual findings and legal conclusions of the state trial court. But in this case, the only finding the trial judge made was that the defendant had failed to establish a prima facie case. Everyone now agrees that finding was incorrect. The state trial judge, holding that the defendant had failed at step one, made no finding with respect to the sufficiency or credibility of the prosecutor's explanation at step two. The question, then, is whether the reviewing court  J& should (1) go on to decide the second step of the Batson inquiry, (2) reverse and remand to the District Court for further proceedings, or (3) grant the writ conditioned on a proper steptwo and (if necessary) stepthree hearing in the state trial court. This Court's opinion today implicitly ratifies the Court of Appeals' decision to evaluate on its own whether the prosecutor had satisfied step two. I think that is the correct resolution of this procedural question, but it deserves more consideration than the Court has provided.  In many cases, a state trial court or a federal district court will be in a better position to evaluate the facts surrounding peremptory strikes than a federal appeals court. But I would favor a rule giving the appeals court discretion, based on the sufficiency of the record, to evaluate a prosecutor's explanation of his strikes. In "!!  this case, I think review is justified because the prosecutor volunteered reasons for the challenges. The Court of Appeals reasonably assumed that these were the same reasons the prosecutor would have given had the trial court required him to respond to the prima facie case. The Court of Appeals, in its discretion, could thus evaluate the explanations for their sufficiency. This presents a pure legal question, and nothing is gained by remand if the appeals court can resolve that question on the facts before it.  Assuming the Court of Appeals did not err in reaching step two, a new problem arises when that court (or, as in today's case, this Court) conducts the steptwo inquiry and decides that the prosecutor's explanation was sufficient. Who may evaluate whether the prosecutor's  J explanation was pretextual under step three of Batson? Again, I think the question whether the Court of Appeals decides, or whether it refers the question to a trial court, should depend on the state of the record before the Court of Appeals. Whatever procedure is contemplated, however, I think even this Court would acknowledge that some implausible, fantastic, and silly explanations could be found to be pretextual without any  Jh further evidence. Indeed, in Hernandez the Court explained that a trial judge could find pretext based on nothing more than a consistent policy of excluding all Spanishspeaking jurors if that characteristic was entirely unrelated to the case to be tried. 500 U.S., at  J 371!372 (plurality opinion of Kennedy, J.). Parallel reasoning would justify a finding of pretext based on a policy of excusing jurors with beards if beards have nothing to do with the pending case.  In some cases, conceivably the length and unkempt character of a juror's hair and goateetype beard might give rise to a concern that he is a nonconformist who might not be a good juror. In this case, however, the prosecutor did not identify any such concern. He merely said he did not  ! `like the way [the juror] looked,' !  that  J the facial hair  ! `look[ed] suspicious.' !  Ante, at 1. I "!!  think this explanation may well be pretextual as a matter of law; it has nothing to do with the case at hand, and it is just as evasive as I had a hunch. Unless a reviewing court may evaluate such explanations when a trial judge fails to find that a prima facie case has been established, appellate or collateral review  J of Batson claims will amount to nothing more than the  J meaningless charade that the Missouri Supreme Court  J correctly understood Batson to disfavor. Antwine, 743 S. W. 2d, at 65.  In my opinion, preoccupation with the niceties of a threestep analysis should not foreclose meaningful judicial review of prosecutorial explanations that are entirely unrelated to the case to be tried. I would  J adhere to the Batson rule that such an explanation does not satisfy step two. Alternatively, I would hold that, in the absence of an explicit trial court finding on the issue, a reviewing court may hold that such an explanation is pretextual as a matter of law. The Court's unnecessary tolerance of silly, fantastic, and implausible explanations, together with its assumption that there is a difference of constitutional magnitude between a statement that I had a hunch about this juror based on his appearance, and I challenged this juror because he had a mustache, demeans the importance of the values  J vindicated by our decision in Batson.  I respectfully dissent.