concurring in part and dissenting in part:
Protecting an individual’s constitutional right to a fair trial is a solemn responsibility of the federal courts. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court ruled that the government’s privilege to strike individual jurors through peremptory challenges is limited by the Equal Protection Clause, and that the government violates equal protection guarantees if it challenges potential jurors solely on account of their race. Id. at 89, 106 S.Ct. at 1719. A Batson violation obviously harms the defendant, who has “the right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria.” Id. at 85-86, 106 S.Ct. at 1717. The defendant is not the only one with vital interests at stake, however. The Court noted in Batson that such violations also harm improperly excluded jurors and touch the entire community by “underminpng] public confidence in the fairness of our system of justice.” Id. at 87, 106 S.Ct. at 1718. Mindful of the responsibility we carry, and mindful of the fact that the American justice system itself is on trial when a Batson challenge is raised, I am constrained to dissent in part in the present ease.
I agree with the majority that the district judge acted within his discretion in declining to afford Tindle an evidentiary hearing. While I think it is important to stress that proposed in camera, ex parte submissions to support the government’s rebuttal should be carefully scrutinized by the courts and permitted only in limited circumstances, I also agree with the majority that most of the in camera material in the present case was treated appropriately by the district court.
I disagree with the majority on two points, however. First, I believe that the jury list as augmented with the prosecutor's notes during voir dire should have been made available to Tindle, with court-approved redactions where appropriate. Second, and more important, I believe the district court’s finding that the government carried its burden of providing a non-pre-textual, neutral explanation was clearly erroneous as to two of the five black jurors who were struck with peremptory challenges. I would therefore reverse and remand for a new trial.
I.
In United States v. Garrison, 849 F.2d 103 (4th Cir.1988), we noted that “the important rights guaranteed by Batson deserve the full protection of the adversarial process except where compelling reasons requiring secrecy are shown.” Id. at 106 (citing United States v. Thompson, 827 F.2d 1254, 1258-59 (9th Cir.1987)). We also stated clearly in Garrison that “the government must make a substantial showing of necessity to justify excluding the defendant from this important stage of the prosecution.” Id. In my opinion, such a showing has not been made with respect to *133the jury list containing the prosecutor’s notes.
The district court concluded that ex parte, in camera submission was appropriate because the annotated jury list
reveal[s] strategy employed by government counsel during the trial of the case. Were the Court to permit counsel for defendant to have access to the in camera submission and were a new trial to be then ordered, defendant would have access to materials to which he would not otherwise be entitled either under Rule 16, F.R.Crim.P., or under the Jencks Act.
United States v. Tindle, No. H-83-00154, slip op. at 18-19 (D.Md. June 2, 1987) (Harvey, C.J.). In its Brief to this Court, the government also argues that it should not be required to disclose its “work product” to the defendant. These statements have no bearing on the present inquiry. I have no doubt that a defendant’s request for the prosecutor’s annotated jury list as part of discovery would properly be denied on all three grounds raised by the government. However, here the government, facing the defendant’s prima facie case of discriminatory jury selection under Batson, has chosen to use the annotated jury list as evidence to support the government’s articulated neutral explanations for its juror challenges. Any “work product” claims are therefore inapposite, and the requirements of Rule 16 and the Jencks Act need not be met. As for the district court’s concern about revealing prosecutorial strategy, that can hardly be of concern where, as here, Batson is being applied retroactively after the completion of the trial at issue.
If any specific notations on the list warrant confidentiality, such as for example a notation that might embarrass a potential juror or pertain to an ongoing unrelated investigation, the district court could easily accommodate all competing concerns through careful redaction. Limited, court-supervised redaction would protect legitimate concerns of the prosecutors while also preserving the vital adversarial aspect of the Batson -type challenge.
Where ex parte, in camera submission is indeed necessary for some reason, obviously the excluded party must rely on the judge to give full and fair consideration to the evidence and to relevant legal and factual issues. But in our adversarial system, we ordinarily go to great lengths to ensure that both sides have an equal opportunity to argue all points and all evidence before a judge reaches his decision, and to ensure that such proceedings are open to the public. I see no reason to stray from the usual principles in the present contest. Indeed, I would argue that openness and candor are even more important in a Batson -type controversy than in most other situations. Anyone denied access to purportedly exonerating materials cannot help suspecting the worst — the best intentions of government counsel and the district court notwithstanding — it is simply human nature to be suspicious when relevant data is withheld by a decisionmaker.
The district judge specifically mentioned the in camera submission of the annotated jury list and concluded that “[cjlose examination of these notes reveals that the reasons given by government counsel for these strikes were not pretextual. The notations made contemporaneously with the exercise of the strikes in question fully support the explanations given by government counsel for exercising these peremptory strikes.” United States v. Tindle, No. H-83-00154, slip op. at 14 (D.Md. June 2, 1987). To the extent that the jury list supports the government’s assertions, its release would be reassuring to any who suspected improper conduct by the prosecution and would foster public confidence in the system. See Batson, 476 U.S. at 87, 106 S.Ct. at 1718 (“Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”). I therefore think the district court acted improperly in denying the defendant access to the annotated jury notes, and would order their release following appropriate redac-tions by the district court.
II.
My chief disagreement with the majority opinion is with its endorsement of the dis*134trict court’s finding that the prosecution rebutted Tindle’s prima facie case with neutral and non-pretextual explanations for each peremptory challenge at issue. In Batson, the Supreme Court ruled that once a prima facie case is established, “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” 476 U.S. at 97, 106 S.Ct. at 1723. A court’s failure to undertake a serious examination of prosecutors’ explanations makes the government’s burden illusory. Because I believe the district court’s finding was clearly erroneous as to two of the challenges, I would reverse and grant a new trial.
The government explained that black potential juror Granderson was struck because of the resemblance between her name and “Grandison,” the surname of the defendant in an unrelated case also prosecuted by Assistant United States Attorney Cobb.1 The explanation is so flimsy that it cannot be held to survive a serious pretext inquiry. Grandison was in no way involved in the present case, and neither was his connection with Cobb. Ms. Granderson would not herself have been at issue in the case; jurors are not addressed by name during trials, so there could be no grounds for concern that others might hear her name and be confused. The difference in spelling indicates lack of any relationship, not the reverse. If the pretext inquiry is to be at all meaningful, the government’s explanation of the Granderson strike simply cannot be accepted.
The government’s lame explanation for its peremptory challenge of prospective juror Johnson is not much better. The district court summarized the government’s explanation as follows:
Juror Johnson was listed as being 30 years of age and a construction laborer who resided in Beltsville, Maryland. According to the government, when this juror was struck, the prosecutors were unaware whether he was black or white. The master jury list for the September Term 1983 indicated that juror Johnson was unemployed while the jury list used at trial indicated that he was employed as a construction laborer. Although government counsel have no clear recollection of this particular juror, they believe he was struck because it was thought that he was not regularly employed. It was further believed that at times when he was employed, he worked at a location in Prince George’s County which was near an area where the Tindle narcotics operation was conducted.
United States v. Tindle, No. H-83-00154, slip op. at 9-10 (D.Md. June 2, 1987). While it may be true, the government’s assertions that the prosecutors were unaware of whether Johnson was black or white, and that race did not enter into the decision to challenge, cannot simply be blindly accepted by this Court as true. See Batson, 476 U.S. at 98, 106 S.Ct. at 1723 (“Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirm[ing] [his] good faith in making individual selections.’ ”) (quoting Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972)).
The prosecutors’ assertion that they did not remember what Johnson looked like is seriously undermined by their simultaneous assertion that another black potential juror was properly struck because he was of the same size and appearance as a co-defendant who was planning to raise an issue of identification accuracy at trial. Once a prima facie case under Batson has been made out, it does not require a partic*135ularly suspicious mind to conclude that a prosecutor’s selective memory about the racial characteristics of potential jurors cannot be countenanced.
The government’s explanation as to Johnson’s place of employment is also not supported by any contemporaneous evidence. The government does not point to any evidence that would justify the prosecutors’ claimed belief at the time of voir dire that Johnson worked at a location near Tindle’s narcotics operations. The government thus is again asking this Court blindly to accept its affirmation of good faith, something Batson forbids us to do.
The government admittedly faces a difficult task when asked to reconstruct, several years later, most of its reasons for challenging prospective jurors. This is particularly true in the case of peremptory challenges, which ordinarily do not require any explanation or justification. I also acknowledge that Batson was decided nearly three years after the trial in the present case. Yet, to most of us, racial characteristics, white or black, are readily apparent and usually remembered. As the government acknowledges in its Brief to this court, the prosecutors in the present case were already required at the time of trial, as a matter of office policy, to be prepared to articulate “satisfactory grounds” for the exercise of a peremptory strike “particularly where a respective juror is a member of a group against which, for equal protection purposes, discrimination will be deemed to be ‘suspect’.” Appellee’s Brief at 5, quoting 1983 Office Policy Manual, United States Attorney’s Office for the District of Maryland.
While I have a strong inclination to believe in the good faith asserted by the prosecutors, my reading of Batson compels me to reach the conclusion that the government has failed to carry its burden of rebutting Tindle’s prima facie case with neutral and non-pretextual explanations for the peremptory challenges of potential jurors Granderson and Johnson. If the explanations offered for those strikes are deemed adequate, the burden explicitly assigned to the government by the Supreme Court in Batson becomes totally illusory,
i therefore dissent in part,
. A concern about potential juror Granderson being kin to Anthony Grandison, a man whose peculiar view of civic obligation is well known to this Court, see United States v. Grandison, 780 F.2d 425 (4th Cir.1985), would be wholly legitimate. It might form a reason to strike Mrs. Granderson, however, that reason was not advanced. Even if it was advanced, I am not persuaded that it would be sufficient justification in itself. The manner to allay that concern is by voir dire, then if kinship is found a strike could be made. It does not appear that a question regarding kinship was made of Granderson during voir dire. Since Grandison was black, 780 F.2d at 430-31; Brief for Appellants at 32, United States v. Grandison, 780 F.2d 425 (4th Cir.1985), and Granderson was black also, blackness stands as the reason for the strike.