dissenting.
I respectfully dissent. The Supreme Court has long recognized that certain practices or circumstances during a criminal trial are so inherently prejudicial that a defendant need not show actual prejudice to establish that his due process rights have been violated. Holbrook v. Flynn, 475 U.S. 560, 573, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Estes v. Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). In those situations, the practices or circumstances create such a probability that prejudice will result that courts need not consider the actual effect they had on the proceedings. Estes, 381 U.S. at 542-43. The reasoning behind this principle was summed up by Justice Black nearly fifty years ago:
A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the- probability of unfairness .... [T]o perform its high function in the best way justice must satisfy the appearance of justice.
In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (emphasis added, citation and internal quotation omitted). Even earlier, Chief Justice Taft had explained that:
the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man ... to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.
Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (emphasis added). The Court has explained that, in resolving claims that circumstances were such as to prevent a fair trial, “[a]ll a federal court may do ... is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial.” Holbrook, 475 U.S. at 572. In conducting such an inquiry, “courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.” Estelle, 425 U.S. at 504.
These precedents constitute law clearly established by the Supreme Court, and the decision of the California Court of Appeal in this case was an unreasonable application of that law. See 28 U.S.C. § 2254(d). The wearing of badges bearing the victim’s *7picture by relatives of the victim .in front of the jury with the intent to influence the jury is inherently prejudicial. We had held similar circumstances not to require a showing of actual prejudice years before petitioner’s trial. Norris v. Risley, 918 F.2d 828 (9th Cir.1990). In Norris, we found that the wearing of ‘Women Against Rape” buttons by members of the audience during the defendant’s trial created an unacceptably high risk that his right to a fair trial had been compromised. Id. at 834. The same is true here. While the California court was not bound to follow our precedent, “[o]ur cases may be persuasive authority for purposes of determining whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and also may help us determine what law is ‘clearly established.’ ” Duchaime v. Ducharme, 200 F.3d 597, 598 (9th Cir.2000) (citation omitted).1
While AEDPA requires us to give substantial deference to the decisions of state courts, it does not require us to abdicate our role as enforcers of basic constitutional norms. I would reverse the district court’s judgment and remand with directions that the writ be granted, so Palumbo can receive what he did not get in the first instance: a trial free from impermissible and inherently prejudicial factors.
. Needless to say, because the wearing of badges during petitioner’s trial was inherently prejudicial, such conduct cannot be harmless. See Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (noting that "structural defects in the constitution of the trial mechanism” cannot be subjected to harmless error analysis).