with whom Circuit Judges WALLACE, HUG, SCHROEDER and ALARCON, join, concurring in the judgment:
I agree with the majority that De Gross’s conviction must be reversed. However, I do not agree that a criminal defendant is a state actor. Accordingly, I do not join in the majority’s reasoning. To the contrary, I base my decision to reverse on the very proposition rejected by the majority in its opinion.
A
The majority holds that, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the government may object to the exercise of peremptory challenges by criminal defendants. Central to the majority’s holding is its conclusion that those whom the state seeks to incarcerate (or possibly even execute) — the quintessential adversaries of the -state — are state actors. If, as I believe, criminal defendants cannot be so characterized, then their actions cannot violate the Constitution, and the government may not assert, as it was permitted to do here, a Batson objection to a challenge of a prospective juror made by the defendant. See Edmonson v. Leesville Concrete Co., — U.S. -, 111 S.Ct. 2077, 2082, 114 L.Ed.2d 660 (1991). According to the majority, the Supreme Court’s decision in Edmonson “has settled the issue” in favor of the result they adopt. Opinion at 1439. In so concluding, my colleagues read too much into certain parts of Edmonson, ignore other portions, and as a result are led into error regarding Edmonson’s construction of the state action doctrine.
While I believe that a proper analysis of the state action doctrine will demonstrate that the majority’s reading of Edmonson is incorrect, it is not surprising that our en banc court is closely divided on the question before us. Support for either result can be found in the language of Edmon-son. For example, in holding that when *1444participating in civil voir dire proceedings involving non-governmental parties only, a private litigant is a state actor, the Court emphasized that the impact on persons excluded from the jury because of their race is heightened by the fact that the peremptory challenges take place in a governmental setting. See 111 S.Ct. at 2087 (“[T]he injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself.”). Since both civil and criminal trials take place within government buildings, the quoted statement can reasonably be said to support the extension of Edmonson to the area of criminal proceedings. However, in reaching its conclusion, the Ed-monson Court also relies on the fact that in civil cases in which the government is not a party, the interests of the private litigants and the government with respect to the voir dire process are congruent. See id. at 2086 (noting that “[i]n the jury-selection process, the government and private litigants work for the same end”). Since, as any prosecutor or former prosecutor can attest, the defendant’s and the prosecutor’s interests in criminal cases are in direct conflict at every stage, including that of jury selection, this part of the Court's analysis supports the view that Edmonson must be confined to civil proceedings. While, in reaching the anomalous conclusion that criminal defendants are state actors, the majority chooses to emphasize the similarity in civil and criminal cases of the harm to excluded venire persons, I believe the difference in the roles and interests of private civil litigants and criminal defendants is by far the more central and compelling factor.
Although various parts of Edmonson may lend support to one side or the other, the one thing the decision does not do is “settle the issue”. In holding that in certain civil cases, the exercise of peremptory challenges involves state action, the Supreme Court expressly contrasted the private civil litigants whose case it was deciding with criminal defendants — and even with private civil litigants involved in suits against the government. See 111 S.Ct. at 2086. The Court thus deliberately distinguished the case which now confronts us, and left open its resolution. In short, contrary to the majority’s view, the result in the present appeal can in no way be said to be “mandated” by Edmonson.
Despite its ambiguities, Edmonson does provide guidance in selecting the appropriate analytic framework for resolution of the state action issue. The applicable framework according to Edmonson is that used by the Court in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). See 111 S.Ct. at 2082. Under Lugar, state action is implicated when “the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority,” and when “the private party charged with the deprivation could be described in all fairness as a state actor.” Edmonson, 111 S.Ct. at 2082-83 (citing Lugar, 457 U.S. at 939-42, 102 S.Ct. at 2755-56). Both conditions must be met in order to justify a finding of state action.
The first step — whether the actor asserts a right derived from state law — is easy; because the criminal defendant’s power to exercise peremptory challenges stems from Fed.R.Crim.P. 24(b), it has its source in state authority. See Edmonson, 111 S.Ct. at 2083. However, it is the second step of the Lugar analysis — whether or not the private party can fairly be described as a state actor — that is critical in this case. Although this second step involves a “necessarily fact-bound inquiry,” Lugar, 457 U.S. at 939, 102 S.Ct. at 2755, that requires “sifting facts and weighing circumstances,” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961), the central determinant of whether a private party — here, the criminal defendant — may be fairly characterized as a state actor is the private party’s relationship to the state. See, e.g., Edmonson, 111 S.Ct. at 2086 (comparing different state action inquiries based on the “purpose and functions” of the private party in relation to the state).
It cannot be disputed that a criminal defendant’s relationship to the state is fundamentally different from that of a private *1445litigant in a civil case. As the Supreme Court stated in Edmonson, private civil litigants present a very different case from criminal defendants because “[i]n the ordinary context of civil litigation in which the government is not a party, an adversarial relation does not exist between the government and a private litigant.” 111 S.Ct. at 2086. By contrast, a criminal defendant has perhaps the most adversarial relationship possible with the state. In determining whether De Gross is a state actor, it is not necessary to consider the intermediate circumstance left open by Edmonson— that of a private party suing or being sued in a civil action by the government. We must resolve, here, only the most extreme case — whether a criminal defendant being prosecuted by the state can be said to be a state actor.
It is hard to imagine a more palpable example of the exercise- of state power than a criminal prosecution. But, that state power is wielded by the prosecutor against the criminal defendant — not by the defendant on his own behalf. The prosecutor adopts the mission of the state — to convict and incarcerate (or execute) the defendant — as his own, and attempts to further that mission throughout the criminal proceedings. When the prosecutor opposes suppression motions, cross-examines witnesses, or engages in any other trial-related activity, including jury selection, he does so with the object of advancing the state’s case and defeating the defendant’s efforts to obtain an acquittal.1
The defendant’s sole objective in a criminal proceeding is to overcome, by all possible adversarial means, the state’s effort to convict him. During each and every part of that proceeding, he is interested solely in the preservation of his life and liberty. Indeed, there is no circumstance in which an individual will oppose the interests of the government with greater vigor, consistency, or single-mindedness than during his own criminal trial. Far from wielding state power, a criminal defendant attempts to thwart that power at every stage of the proceedings.
There is nothing about the process of jury selection that alters the criminal defendant’s fundamental adversary relationship to the state and allows us fairly to characterize him as a state actor. During the voir dire, the prosecution and defense do not work in harmony; each seeks to eliminate jurors it believes to be sympathetic to the other side and to retain jurors who may be sympathetic to it. Unlike private litigants in civil cases, criminal defendants, when challenging jurors, are inevitably brought into direct conflict with the interests of the state. While conceding that there is a direct conflict between the criminal defendant and the state in the guise of the prosecution2, the majority elects to ignore that conflict, choosing instead to ask whether another conflict exists — whether the interests of the criminal defendant and those of the court are antithetical. Even when answering that incon-sequent question, the majority goes astray. My colleagues assert, naively, “the interests of the state actor administering the trial [the court] is to see that justice is done, an interest not at odds with the defendant’s position.” Opinion at 1441. The realities are to the contrary. The defendant’s interest is not “to see that justice is done” but to obtain an acquittal regardless of the interests of justice. Certainly, in at least a substantial percentage of our criminal proceedings, the defendant’s interest is directly contrary to the state’s — even if we close our eyes to the role of the prosecutor and view the state’s interest as being solely *1446that of the court.3 The conflict between the state and the criminal defendant is real and not “conceptual”,4 whether we consider the state to be the prosecutor, the court, or, as is in fact the case, both. It is the reality of that conflict that is determinative for purposes of the state action doctrine; and it is that reality that mandates the finding that criminal defendants are not state actors.
I conclude that the fact that a criminal defendant’s interests are diametrically opposed to those of the government is dispos-itive of the state action question. When the Supreme Court found that doctors employed by government institutions are state actors, it did so because “[¡Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve.” Polk County v. Dodson, 454 U.S. 312, 320, 102 S.Ct. 445, 451, 70 L.Ed.2d 509 (1981) (explaining O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). When it found that public defenders are not state actors, it did so because it is the function of public defenders to oppose the state’s mission in criminal trials. See id. When the Court found that private civil litigants engaged in lawsuits not involving the government are state actors for purposes of the jury selection process, it found their actions “attributable to the government” because “the government and private litigants work for the same end” during the voir dire. Ed-monson, 111 S.Ct. at 2086. At the very least, it is plain that there is no substantial conflict between the government and the private litigant in civil cases in which the government is not a party. In complete contrast, when a criminal defendant exercises peremptory challenges, he works in direct opposition to the interests of the state; he seeks a jury that will be hostile to the government’s efforts to convict him. Unlike institutional physicians, a criminal defendant does not “assume an obligation to the mission” of the state. And, unlike civil litigants in a non-governmental case, a criminal defendant does not “work for the same end” as the government.5 In sum, a *1447criminal defendant can by no means and under no circumstances fairly be said to be acting on behalf of the state — to be a “state actor”.6
Because De Gross’s peremptory challenge to Wendell Tiffany did not involve state action, the district court should not have permitted the government to raise a Batson objection. Thus, the court erred in disallowing De Gross’s challenge and permitting Tiffany to serve on the jury. The district court’s error in seating Tiffany over De Gross’s objection is in and of itself sufficient to require reversal of De Gross’s conviction and a new trial before a properly selected jury.7
B
My belief that a criminal defendant’s exercise of his or her peremptory challenges cannot give rise to a violation of the Constitution does not mean that I lack empathy for the feelings of venire persons excluded from serving on the jury on the basis of race or gender. It is true, as the majority states, that the setting in which the voir dire occurs — in a courtroom under the supervision of a district judge — may give rise to a feeling of government-sponsored discrimination. However, that concern may be alleviated without discarding the state action doctrine or turning criminal defendants into government agents. I am confident that a district judge who fears, in a particular case, that venire persons are likely to be excluded on the basis of race or gender and that they may ascribe their exclusion to the actions of the state, can develop means of averting that misimpression. For example, district judges are free, prior to commencement of the voir dire, to explain to prospective jurors that the defendant is given the opportunity to exclude persons for any reason whatsoever — or for none — and that a decision to strike is that of the defendant’s alone and in no way represents the view of, or an action by, the court. In this way, even the appearance of state action that might arise from a defendant’s exercise of peremptory challenges could be avoided.
To the degree that an individual venire person may nonetheless be affronted by an arbitrary exclusion, the harm suffered must be weighed against the need of the criminal defendant to have the right to exercise peremptory challenges in any manner he chooses, whether as a result of instinct, logic, reason, unfounded suspicion, bias or a combination of any or all of those factors. In a criminal trial, it is the defendant’s rights with which we must be most concerned, to which we must pay the greatest heed: it is, after all, the defendant’s life or liberty that is at stake in the courtroom. The majority’s holding diminishes those rights by imposing constitutional constraints on a defendant’s ability to select the jury he believes will be most sympathetic to his cause.8
*1448Criminal defendants are given the opportunity to exercise unrestricted peremptory challenges for the simple reason that we have long believed that the right to do so is essential to ensuring the impartiality of the jury, an impartiality upon which our ability to provide fair trials depends. See Lewis v. United States, 146 U.S. 370, 376-78, 13 S.Ct. 136, 138-39, 36 L.Ed. 1011 (1892) (“The right of [peremptory] challenge ... has always been held to be essential to the fairness of trial by jury.... ‘and it must be exercised with full freedom, or it fails of its full purpose.’ ” (quoting Lamb v. State, 36 Wis. 424, 427 (1874)). If criminal defendants are required to explain publicly, or even to attempt to understand privately, precisely why they have a concern about how a particular juror may view their case, much of the benefit of the peremptory challenge system will be lost. Hunches and instinct have always been good enough reason for a defendant to refuse to trust his life or liberty to the judgment of a stranger whose demeanor or manner causes him anxiety or discomfort. In many cases it is simply impossible for a criminal defendant to state why his “gut” tells him not to trust a particular person. Requiring explanations when challenges are made to blacks, women, and members of other groups would seriously limit the historic right of criminal defendants to be tried by a jury in whose fairness they have confidence. Compare Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24 (discussing legitimate bases for the prosecutor to challenge a juror peremptorily). As the Supreme Court made plain in Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894), “[t]he right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused_ Any system for the empanel-ling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned.” Id. at 408, 14 S.Ct. at 414. In sum, I believe that the result the majority arrives at is not only contrary to logic and reason but hampers the public interest in fair trials.
Conclusion
For the reasons explained above, I agree with the majority that the district court’s judgment must be reversed. For those same reasons, I concur in the judgment only.
. I do not mean to suggest that the prosecutor does not have a duty to see that justice is done and fairness prevails in every criminal trial. The contrary is certainly the case. In fact, there is no excuse for a prosecutor’s failure to be guided by those obligations at all times. Nevertheless, although a prosecutor must ensure both that justice is done and that the means he employs are fair, his immediate objective, unless and until he decides to terminate the prosecution, is to obtain a conviction.
. See Opinion at 1441 ("While it is true that a criminal defendant seeks to 'thwart [the state’s] power at every stage of the proceedings’, see concurring opinion at 1445, it is the prosecutor’s power, not the court’s power, that he seeks to thwart.”).
. Since a criminal prosecution is brought in the name of the state, and is even captioned United States v. (the criminal defendant), it is difficult to see how we could, under any form of reasoning, eliminate from our analysis the state’s role as prosecutor.
. What is "conceptual" is the majority’s view that the court’s only role is to seek justice. From a criminal defendant's more pragmatic standpoint, the court is part of the governmental machinery that seeks to incarcerate or execute him. Following conviction, the court is the body that orders that his life or liberty be taken from him. The congruence of interests the majority sees between the court and the accused is not visible to most defendants who are processed through our criminal justice system.
. In conducting its state action inquiry, the majority examines the role of the criminal defendant rather than the defense counsel. This is in accord with Edmonson, which looks to the function and interests of the litigants rather than of their lawyers. However, even were we to analyze the issue from the standpoint of counsel, the result would be the same.
The interests of defense counsel are no less diametrically opposed to those of the state than the interests of defendants; the difference between the two is simply that the former acts under a constitutional obligation rather than a sense of self-preservation. “An indispensable element” of defense counsel’s duty to his client is "‘the ability to act independently of the Government and to oppose it in adversary litigation.’ " Dodson, 454 U.S. at 318 n. 8, 102 S.Ct. at 450 n. 8 (quoting Ferri v. Ackerman, 444 U.S. 193, 204, 100 S.Ct. 402, 409, 62 L.Ed.2d 355 (1979)). Although defense counsel are also officers of the court, in criminal cases that obligation is primarily served by opposing the interests of the state. The American Bar Association rules of professional ethics state that ”[t]he basic duty [criminal] defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality representation." ABA Standards for Criminal Justice, Standard 4-1.2(b). The degree to which the state may impose obligations on the defense lawyer is sharply limited by the Constitution, which bars the state from diverting him from his central obligation — that of seeking to vindicate the defendant’s interests. See Dodson, 454 U.S. at 321-22, 102 S.Ct. at 451-52 (”[I]t is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages.’’). The requisite independence of the criminal defense lawyer is incompatible with the view that the lawyer is simultaneously a state actor. As the Supreme Court stated in von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (plurality):
*1447The Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be. Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision.
Id. at 725-26, 68 S.Ct. at 324 (footnote omitted). Accordingly, criminal defense lawyers, like their clients, are not state actors.
.Knowledge that a criminal defendant who is seeking to escape incarceration (or execution) by the state may be termed a "state actor” would have delighted Gilbert and Sullivan, those well-respected commentators on the absurdities found in our legal system. See Trial by Jury. In Act II of The Pirates of Penzance, we find one of their most famous lines, one that well describes the majority holding:
A paradox, A paradox,
A most ingenious paradox!
Later in the same refrain our authors observe, How quaint the ways of Paradox!
At common sense she gaily mocks!
. In view of the conclusion expressed above, there is no reason to consider, in this opinion, whether Batson extends to gender-based peremptory challenges.
. It is the members of racial and ethnic minorities who are markedly overrepresented in the role of criminal defendants. Thus, it is those members who will suffer disproportionately from the rule the majority adopts today. See Edmonson v. Leesville Concrete Co., Inc., — U.S. -, 111 S.Ct. 2077, 2095, 114 L.Ed.2d 660 (1991) (Scalia, J., dissenting); Developments in the Law — Race and the Criminal Process, 101 Harv.L.Rev. 1475, 1495 (1988).