dissenting:
Disproportionate striking of jury men or women on racial grounds cannot be excused or ignored because the offense was heinous. Conviction should be affirmed only if correctly achieved.1 Otherwise the foundations of our criminal jurisprudence would be in substantial disarray.
It, therefore, is of no importance and irrelevant, for present purposes, what the jury, which may have been improperly selected, found as crimes, however outrageous, that Anthony Grandison et al were responsible for. It is imperative to ascertain whether the jury should have been allowed, as constituted, to have sat in judgment at all.
With the number of peremptory strikes of black members of the venire disproportionate when measured against almost any criteria, it becomes incumbent upon the prosecution to justify its strikes as not racially motivated. The prosecutors may well succeed in doing so. No doubt they feel they can. But “maybe” is not “is”. If they cannot do so, the convictions should not stand. It is not too much to require satisfactory proof instead of mere sur*150mise2 when the case of possible racial discrimination is as starkly present as it is here. The result of proof of discrimination, after all, would lead merely to retrial by a properly selected jury, not to exoneration.
The burden on the government, after all, is not great. Recognizing the established role of peremptory jury strikes in our criminal system, but also recognizing that jury selection is a process particularly susceptible to discrimination “by those who are of a mind to discriminate,” Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986) (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)), the Supreme Court has delineated a simple process by which, upon a prima facie showing of racially discriminatory jury selection, the burden shifts to the government to offer a racially neutral explanation for challenging jurors of the given racial group.
Of course, the trial judge is in a unique position to evaluate any prima facie claim. Indeed, the district court and majority opinions are well-reasoned and certainly persuasive on this score. But both reflect a confusion over the court’s proper role at each stage of the Batson proceeding. We need not measure the defendant’s prima facie case against the evidentiary burden ultimately required to prove intentional discriminatory strikes. The real question presented is the quantum of evidence necessary to support a prima facie Batson showing — an inference that even one peremptory strike was utilized to exclude a member of a cognizable racial group from the venire.
As the majority acknowledges, case law in this rapidly developing area is very fact specific and appellate courts have been reluctant to lay down any bright line test or per se rules. United States v. Sanqineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988). While a district court finding as to a prima facie case may be entitled to “deference,” see United States v. Lane, 866 F.2d 103 (4th Cir.1989), the great weight of authority cited by the majority gives little guidance.3 Generally, however, a prima facie case is exactly that, prima facie. It is not an explicit finding of intentional discrimination, that would ordinarily be entitled to greater deference on appeal. See Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Operating under the dire spectre of invidious racial discrimination, such a prima facie showing should merely require a compilation of facts capable of raising a suspicion sufficient enough to trigger the relatively painless remedial measure prescribed by Batson — a sufficient proffer by the government of a racially neutral explanation for the given action. The subsequent factual determinations of lack of pretext or intentional discrimination are fully within the trial court’s prerogative as factfinder, and are just as fully entitled to great deference on appeal. Here, the district court opinion reads as a sound and thorough discussion under, say, a sufficiency of the evidence analysis. It ignores, however, the facially suspect nature of the government’s *151action within a context inherently susceptible to abuse, the broad remedial purpose of Batson, and the consequently lower eviden-tiary threshold necessary to trigger the simple government burden of producing a racially neutral explanation. It calls on the government for no explanation whatsoever.
Yet such an explanation is called for here. The spectre of racial discrimination is clearly apparent. Six of the nine strikes employed by the government were used against blacks.4 The disparate nature of that fact is emphasized by the consideration, trumpeted by the prosecution, that two or three black jurors remained. Per-centagewise blacks were still significantly underrepresented.
A predominant number of the government witnesses at the trial were white, including, in particular, the main identification witness. A letter written by Grandi-son, which was a prominent part, indeed a cornerstone, of the government’s case, referred to one of the intended victims of a cruel and wanton murder as a “white bitch,” making race a matter of heightened importance by emphasizing a legal irrelevance more likely to repel white jurors than it would blacks.
The fifty-one possible jurors remaining after the parties excused a number by agreement amounted to 27.45% black. Peremptory challenges reduced black representation to 19%. The Maryland black population in the 1980 census was 22.7%. The main jury panel, after the government’s peremptory challenges, consisted for Gran-dison et al of 3 blacks out of a total of 30, or 10%.
In light of those facts, the case of prima facie discrimination, not arduous to establish and correspondingly not difficult to dispel,5 should have to be rebutted. Since the prosecution was excused from even having to approach the issue, I respectfully dissent.
. Harmlessness of error, which is used on rare occasion to uphold a conviction, is not available here. Racial discrimination, with the outrageous impression it establishes for anyone subjected to it, and its message of exclusion from a just society of one so mistreated, render any error due to it harmful.
. If whether a door was locked was pertinent, it would be preferable to go and see than merely to assume that users of the door following use regularly turned the key.
. For example, many of the cases cited by the majority involve a district court determination conducted after a prima facie defense showing and an assessment of the government’s explanation. See, e.g., United States v. Tindle, 860 F.2d 125, 129 (4th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 3176, 104 L.Ed.2d 1038 (1989); United States v. Hamilton, 850 F.2d 1038, 1040-41 (4th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1564, 103 L.Ed.2d 931 (1989); United States v. Woods, 812 F.2d 1483, 1487 (4th Cir.1987) ("Since the United States Attorney made a showing of his reasons for the exercise of his challenges, we may examine those reasons under Batson and we may leave for another day the question of whether the defendant made out a prima facie case.”) In United States v. Lane, 866 F.2d 103 (4th Cir.1989), we found the defendant had failed to meet his prima facie burden where the sole evidence he produced was that the prosecution struck a member of his racial group. Considerably more evidence suggesting a discriminatory motive is before us today. See United States v. Mitchell, 877 F.2d 294 (4th Cir.1989) (prima facie case established where prosecutor used seven of ten peremptory strikes against black veniremen and previous jury panel had to be dismissed because of racially inflammatory remark made in juror's lounge).
. In addition, one of the three whites peremptorily struck by the prosecution was the wife of a black.
. As stated, rebuttal of a prima facie case of racial discrimination is not difficult if reasonable grounds are adduced. Leaving the question totally unanswered, in the presence of factors suggesting more than a tinge of racial prejudice, contributes precisely to the appearance of injustice that Batson was in large measure designed to prevent.