dissenting.
In selecting the jury that would decide Jerry Mahaffey’s fate-whether he was guilty of murdering Jo Ellen and Dean Pueschel, and whether he should be put to death for those murders — two prosecutors representing the State of Illinois exercised peremptory challenges to exclude the only seven African-American members of the jury venire. Mahaffey thus was convicted and ultimately sentenced to death by a jury comprised of eleven whites and one Asian-Ameriean. Fortunately for Mahaffey, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), while his direct appeal to the Illinois Supreme Court was pending. That court thus remanded Mahaffey’s ease, ordering the trial court to conduct a hearing and to determine whether jury selection here complied with the constitutional mandate of the Bat-son decision. After conducting that hearing, the state trial judge concluded that Mahaffey had failed to establish a prima facie case of discrimination under Batson. The Illinois Supreme Court affirmed on that basis, and *688the federal district court subsequently declined to issue a writ of habeas corpus. In finding no Batson violation in the selection of Mahaffey’s jury, both the state supreme court and the federal district court effectively deferred to the trial court’s conclusion that Mahaffey had failed to establish a prima facie ease. See People v. Mahaffey, 128 Ill.2d 388, 132 Ill.Dec. 366, 539 N.E.2d 1172, 1184-85 (1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3291, 111 L.Ed.2d 799 (1990); United States ex rel. Mahaffey v. Peters, 978 F.Supp. 762, 781-82 (N.D.Ill.1997).
Today’s majority is understandably uncomfortable with that conclusion, however, for it essentially means that an inference of discrimination, and therefore a prima facie case under Batson, does not arise even where the State has exercised peremptory challenges against all seven African-American venire persons in a racially-sensitive double murder trial involving an African-American defendant and white victims. Acknowledging that Mahaffey has presented a “strong argument” on the prima facie case (ante at 679), the majority 'opts to bypass that aspect of the Batson inquiry and to proceed directly to the ultimate issue of discrimination. Such a course is appropriate, my colleagues believe, because at the Batson hearing ordered by the Illinois Supreme Court, the State came forward with its reasons for striking the seven African-American jurors, and the trial judge explicitly found those reasons valid and non-pretextual. Id. at 680. In my view, that conclusion simply is not supported by the record of the Batson hearing. It also is inconsistent with the decisions issued in this case by the Illinois Supreme Court, the federal district court, and the state trial judge who presided at the Batson hearing. The majority reaches such a conclusion, moreover, in the face of the State’s own insistence that it has never articulated its reasons for striking the seven African-American jurors.
As I will demonstrate below, the majority’s analysis of the Batson issue relies on a mistaken premise — that the actual reasons for the challenged strikes were before the state trial judge and that those reasons were considered and accepted by him. To the contrary, the record demonstrates that the State never offered its reasons for striking the Afriean-American jurors, as the State itself concedes, and those reasons thus were never considered by the state trial judge or by any state or federal court that subsequently has reviewed his work. The Illinois courts and the prosecutors who have been so intimately involved in this case for so long simply are not mistaken as to what occurred at the Batson hearing. It is rather the majority of this court, almost eleven years later, that I believe misreads the record in order to avoid the obvious conclusion that a remand on the Batson issue is required.
In my view, and I venture to say in the view even of my colleagues in the majority, Jerry Mahaffey plainly established a prima facie case of discrimination at the Batson hearing in November 1987. And because a prima facie case was shown, the State must now be required to articulate to the district court its race-neutral reasons for striking all seven African-Americans from Mahaffey’s jury. At that point, the district court must decide for the first time in the extended history of this case whether the reasons offered for the seven strikes are valid, or whether those reasons are instead a pretext for discrimination. Jerry Mahaffey is entitled to at least that much before the State of Illinois cames out his death sentence. The United States Constitution, as interpreted by the Supreme Court in Batson, requires no less. Because a majority of this court is unwilling to give Mahaffey even that, I must respectfully dissent.
I.
The fundamental mistake I find in the majority’s opinion is its suggestion that the prosecutors actually offered their reasons at the Batson hearing for striking the seven African-American jurors. They plainly did not, as is clear from every other court’s discussion of the issue, and from the State’s own brief in this appeal. See Respondent’s Br. at 13 (“The prosecution never tendered ‘race-neutral’ reasons at trial, nor during any appellate proceeding, state or federal.”).1 *689What the State did offer at the Batson hearing, and what the majority now misconstrues as the State’s race-neutral reasons for the ■ strikes, were possible explanations for the challenges that were apparent in the record of the voir dire proceeding itself. The State argued to the trial judge at the Batson hearing that such possible explanations, if apparent from the record, could be considered at the prima facie case stage even before the State was required to articulate its true reason for any individual strike. According to the State, those possible explanations were relevant to whether the trial judge should draw an inference of discrimination for purposes of the prima facie case. See Batson Hearing Tr. at 12 (prosecutor argues that “in determining whether or not the defendant has made out a prima facie case, the trial judge may consider any apparent reasons for the prosecutor’s challenges against" minority jurors.”).2 Yet those “apparent reasons” are to be distinguished from the State’s actual reasons, which, as the State pointed out almost eleven years ago at the hearing and now confirms in its brief to this court, have never been revealed. See id. at 25 (“Since the defendants have not even made a prima facie case on this issue, there is no further need for any ... inquiry into why we exercised our challenges as we did.”). Thus, when the prosecutor proceeded to address the characteristics of five of the seven African-American jurors individually, he was not purporting to reveal the State’s true reasons for striking those jurors; he was instead offering “reasons which are apparent from the record which justify the State’s challenges against these minority jurors.” Id. at 20. In the State’s own view, then, its prosecutor never crossed the line into the pretext stage, as the majority now finds, because the prosecutor focused his entire argument on the requirements of the prima facie case. Indeed, the prosecutor concluded his argument at the Batson hearing by requesting that the trial judge find no prima facie case in the circumstances here. Id. at 26.3
As the majority points out, in responding to the prosecutor’s argument, Mahaffey’s counsel intimated that the State may have done more than merely argue the absence of a prima facie ease. Yet after suggesting that the prosecutor may have crossed the line into the explanation stage, defense counsel observed that “[i]f this is done on the assumption that ... a prima facie case [has] been presented, then I think that is a significant concession. Otherwise, much of what he said deserves review after your Honor has found *690a prima facie case.” Id. at 26-27. Later in the hearing, defense counsel reiterated that the issue before the court was whether a prima facie case had been shown, and counsel twice stated that if a prima facie case were found, Mahaffey would then address in more detail the possible explanations the prosecutor had offered. See id. at 28 (“As far as the specifics and the details, we will respond if your Honor finds a prima facie ease.”) & id. at 36 (“And we would wish to respond to each of those grounds if your Honor finds that there was a prima facie case.”).4 And counsel concluded his argument by asking the trial judge to find that Mahaffey had satisfied his burden under Batson of establishing a prima facie case of discrimination:
The matter for your Honor at this time seems to be whether the fact that all Blacks were excluded by the State on peremptory challenge and there were no Blacks on the jury to try Black defendants, that we have at least established a prima facie case entitling us to a ruling by your Honor and an evaluation and consideration on the grounds and a decision.... So we would ask your Honor at this time to conclude there has been a showing of a prima facie case and therefore the State must demonstrate there has been neutral grounds for removing the jurors.
Id. at 36.
Having heard the arguments of both sides on the issue of the prima facie case, the state trial judge proceeded to address that issue alone. The court thus made no mention of defense counsel’s request that he be given the opportunity to respond in more detail to any race-neutral reasons offered by the State if a prima facie case were found. Judge Hett began his analysis by reciting the elements of a prima facie case under Batson, making it abundantly clear that he was considering only that aspect of the Batson equation. As the majority points out, Judge Hett then provided detailed observations oh the jury voir dire, which led him to conclude that “[sjimilar types of people were also on the jury- All of the people who were excused were similar to the people who were chosen. The Whites who were excused were similar to the Blacks who'were excused.” Id. at 51. Contrary to my colleagues’ assertion, however, Judge Hett never suggested that the prosecutor had. offered the State’s race-neutral reasons for the strikes, nor did he ever indicate that he was assessing whether those reasons were a pretext for discrimination. Cf. ante at 680 (“Judge Hett considered in detail the prosecution’s race-neutral justifications, conducted his own analysis regarding whether any of these justifications were pretextual, and concluded that Mahaf-fey had not shown racial discrimination.”). Rather, the judge concluded from the pattern of strikes and the information revealed by the record of the jury voir dire that an inference of discrimination should not be drawn in these circumstances:
Looking at the totality of the circumstances I do not believe that there has been a showing, aprima facie showing that the State exercised' [its] challenges in a manner that showed racial discrimination. They treated both the Blacks and the Whites who were being excused in the same way. It is apparent in the record they used the same factors that I found as to Whites, again as to Blacks.
Batson Hearing Tr. at 54. Judge Hett therefore concluded that Mahaffey had failed to carry his burden of establishing a prima facie case under Batson. Id.. at 55.
On appeal, the Illinois Supreme Court affirmed Judge Hett’s conclusion regarding the absence of a prima facie case, and nowhere did that court suggest, as my colleagues now *691conclude, that the trial judge had made a finding on the ultimate issue of discrimination. In fact, the state supreme court expressly rejected Mahaffey’s assertion that the trial judge had erred when he relied on the “apparent explanations” for the strikes offered by the State at the prima facie case stage. In so doing, Illinois’ highest court read the record of the Batson hearing much differently than my colleagues do today. The Illinois Supreme Court said that “rather than relying on ‘apparent explanations’ for the State’s challenges, the trial court merely reviewed the characteristics of the stricken jurors to determine their heterogeneity. This is a relevant circumstance which a trial. court may consider when determining a pri-ma facie case of discrimination.” People v. Mahaffey, 132 Ill.Dec. 366, 539 N.E.2d at 1184 (citing People v. Evans, 125 Ill.2d 50, 125 Ill.Dec. 790, 530 N.E.2d 1360, 1365 (1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989)). The Illinois Supreme Court thus considered and rejected the very premise of today’s majority opinion — that the State had.crossed the line at the prima facie case stage by offering its race-neutral explanations for the strikes, and that the trial judge had found those explanations valid and non-pretextual. See ante at 680.
In articulating a contrary view, my colleagues inform us that the state trial judge’s finding on the ultimate issue of discrimination is entitled to a presumption of correctness (ante at 679-80), which is certainly true had such an ultimate finding actually been made. As I have explained, however, no such finding ever was made by the Illinois courts in this case.5 I therefore find it more than a bit ironic that the majority would invoke such a presumption here, where it essentially finds that the Illinois courts were themselves confused about which aspect of the three-part Batson equation they actually were' dealing with. How can the federal courts, possibly afford a presumption of correctness to a state court finding that the state courts themselves did not purport to make? As I read the record, the state courts only found that Mahaffey had failed to make out a prima facie ease of discrimination, and I do not think we are at liberty almost eleven years later to recast the issue simply because we may find the state courts’ conclusion indefensible on this record.
II.
Having demonstrated that the only issue decided by the Illinois courts, and therefore the only issue properly before us today, was whether Mahaffey established a prima facie case of discrimination, I must conclude that he did. Unlike the ultimate issue of discriminatory intent, which as a factual question is entitled to deferential review (see Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712), the preliminary question of whether a prima fa-cie case has been shown presents a mixed question of law and fact (see, e.g., United States v. Bergodere, 40 F.3d 512, 516 (1st Cir.1994), cert. denied, 514 U.S. 1055, 115 S.Ct. 1439, 131 L.Ed.2d 318 (1995); United States v. Alvarado, 891 F.2d 439, 443 (2d Cir.1989), vacated on other grounds, 497 U.S. 543, 110 S.Ct. 2995, 111 L.Ed.2d 439 (1990)), which I submit the appellate courts should review de novo. Although some of our sister circuits have utilized a clearly erroneous standard in their review of that question (see Bergodere, 40 F.3d at 516 (citing cases)), I beliéve that the Supreme Court’s recent deci*692sion in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), points in the direction of- de novo review. The question of whether an inference of discrimination may be drawn' from a set of undisputed facts relating to the racial makeup of the jury venire and the prosecutor’s exercise of peremptory challenges is, like the probable cause question before the Court in Ornelas, one over which the appellate courts should exercise a degree of control that a clear error standard would not afford. Id. at 697, 116 S.Ct. 1657. As in Ornelas, factual scenarios will recur in this context, and de novo review would allow for a measure of consistency in the treatment of similar factual settings, rather than permitting different trial judges to reach inconsistent conclusions about the prima facie case on the same- or similar facts. Id. at 697-98, 116 S.Ct. 1657; cf. Mahaffey, 978 F.Supp. at 781 (“This is not to say that Judge Hett could not have decided the question the other way, but on this record, given his participation in the jury selection, his judgment that there was no prima facie case was permissible.”). Ultimately, however, I find, the standard of review question largely beside the point, for even if a more deferential standard were applied, I would have to conclude that Judge Hett clearly erred in finding that no inference of discrimination would arise from the facts and circumstances here.
I recognize, of course, that Batson requires that we look to all the relevant facts and circumstances in assessing whether an inference of discrimination should arise. See Batson, 476 U.S. at 96, 106 S.Ct.. 1712. Yet by far the mogt important factor in this case, and one that I believe the Illinois courts were too quick to overlook, is that all seven African-American members of the jury venire were excused by the State, meaning that not a single member of Mahaffey’s own race was seated on the jury that decided his fate.6 This is therefore not n case in which only one or two members of a particular racial group were excused while other members of the same racial group remained; it is instead a case where the State exercised seven of thirteen total challenges to exclude every member of Mahaffey’s own face. That strikes me as fairly compelling evidence of discrimination, at least at the prima facie case stage, where the State has not yét been required to articulate its race-neutral reasons for striking the African-American jurors. An inference of discrimination is particularly appropriate, I believe, in light of the Supreme Court’s admonition in Batson that we be mindful of the fact that “peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” 476 U.S. at 96, 106 S.Ct. 1712 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953)). The Supreme Court in Batson emphasized that an inference of discrimination may arise where the prosecutor makes a pattern of strikes against African-American jurors. Id. at 97, 106 S.Ct. 1712. I submit that such a pattern plainly is evident in the State’s juror challenges here, where the prosecutor excused each and every African-American member of the jury venire. See McCain v. Gramley, 96 F.3d 288, 292 (7th Cir.1996) (inference of discrimination may be drawn “where there are only a few members of a racial group on the venire panel and one party strikes each one of them”), cert. denied, - U.S. -, 117 S.Ct. 1320, 137 L.Ed.2d 482 (1997); United States v. Sowa, 34 F.3d 447, 452 (7th Cir.1994) (“The government easily made its prima facie case that the peremptory challenges were motivated by race; each and every black venireperson [six in all] was challenged.”), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995); Splunge v. Clark, 960 F.2d 705, 707 (7th Cir.1992) (prima facie case shown where both African-American members of the jury venire were excluded by the prosecution).
And lest we forget, the crimes at issue in this case were obviously raeially-sensitive— Mahaffey, a young African-American male from Chicago’s South side, was charged with murdering a white couple on the North side, and with attempting to murder their young son. This is therefore a case in which the racial composition of the jury could potentially be a factor in how the jury might respond *693to Mahaffey’s defense at trial, as well as-to his arguments in mitigation at the capital sentencing phase. See Williams v. Chrans, 945 F.2d 926, 943-45 (7th Cir.1991), cert. denied, 505 U.S. 1208, 112 S.Ct. 3002, 120 L.Ed.2d 877 (1992). Before the judgment of the essentially all-white jury in this ease is executed, I- believe that the State at least should be required to explain why it excused each venire person of Mahaffey’s own race.
I am sensitive to- the fact that Judge Hett was present during the jury voir dire and that, in his view, all of the relevant facts and circumstances did not produce an inference of discrimination. Yet Judge Hett came to that conclusion only after comparing the seven African-Americans whom the State excused from 'the jury with the six whites who were similarly excused. The state trial judge essentially found that because the excused African-Americans and the excused whites had similar characteristics, an inference of discrimination should not be drawn from the decision to strike the African-Americans. Batson Hearing Tr. at 54, But rather than comparing the excused African-Americans to the excused whites, I think the trial judge should have been comparing the excused African-Americans to the whites who remained, for only through such a comparison could the judge assess whether race played any role in the State’s challenges. If an excused African-American juror had characteristics and opinions that were similar to those of a white juror who sat, for example, then the obvious inference, at least prior to the articulation of a race-neutral explanation for the strike, would be that the strike was racially-motivated. As far as the voir dire record would reveal, the stricken juror’s face would be the only characteristic distinguishing the African-American from the white who was retained. I find it significant in that regard that Judge Hett found at the Batson hearing that the whites who sat on Mahaffey’s jury were similar to the African-Americans the State had excused. Id. at 51. That finding indicates to me that the African-Americans on the jury venire may have been singled out, as they may have been treated differently than whites with the same or similar characteristics. And the inference of discrimination that would arise: in that circumstance is unaffected by the fact that some whites with the same characteristics also may have been excused — the State still struck all the African-Americans while retaining some of the whites, and despite having strikes available that went úhused. '
In short, I believe that the showing made by Mahaffey at the Batson hearing was sufficient as a matter of law to require the State to come forward with race-neutral explanations for each of the challenged strikes. We should therefore remand this case to the district court to enable the State to do so now.
III.
The crimes of which Jerry Mahaffey stands convicted are indeed horrific, and the evidence certainly supports the jury’s conclusion that Mahaffey was a perpetrator of those crimes. I have no doubt, moreover, .that an Illinois jury could conclude, as this jury did, that Mahaffey deserved the death penalty as a consequence. But how I wish I were confident that the jury making those decisions had been selected, in a constitutional manner. I simply cannot be confident on this record..
' The State of Illinois should once and for all be required to articulate its true reason for striking each of the seven African-American venire persons from the jury that ultimately rendered those judgments. As the State itself concedes, it has never done so in the extended history of this case, nor has any court ever assessed the legitimacy of those reasons under the dictates of Batson. The majority’s conclusions to the contrary, as I believe I have demonstrated, are without support in the state court record.
For all of these reasons, I most respectfully dissent...
. Later in the hearing, the prosecutor explained that:
[I]n certain cases the justifications for some of the State’s peremptories will not be apparent from the transcript of jury selection. However, it has been held in such cases that the defendants did fail to make out a prima facie case of discrimination where the transcripts show that most but not all of the State's peremptory challenges were clearly justified by facts which were apparent in the record.
Id. at 14-15. The State thus effectively argued at the Batson hearing that it was not required to reveal the true reasons for the strikes if possible explanations that weire apparent from the record served to negate the existence of a. prima facie case.
. In the district court, Judge Zagel took the same view of the prosecutor's arguments at the Batson hearing: “In this case, the prosecutors elected to dispute the showing of the prima facie case though they did explicitly deny basing challenges on race. The detailed explanation they did offer was directed to explaining the pattern of challenges." Mahaffey, 978 F.Supp. at 781.
. According to my colleagues in the majority, Mahaffey's counsel "argued that at least some of the prosecution's asserted justifications were pretextual.” Ante at 677. With the utmost respect, however, I again must disagree. It is clear from the transcript that defense counsel, like the prosecutor, argued only what the existing record revealed about the stricken jurors. Defense counsel asserted that the possible explanations pointed out by the prosecutor did not negate the existence of a prima facie case because white jurors with similar characteristics and opinions had been permitted to remain on the jury while African-American jurors with those characteristics and opinions had been excluded. Id. at 29-36. .As I noted in the text, moreover, counsel twice told the trial judge that he would respond further on the pretext question if a prima facie case were found.
. Because no such finding was made here, this case cannot be likened to Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), where a plurality of the Supreme Court found the prima facie case issue moot once the prosecutor had offered his race-neutral reasons for juror challenges. Cf. ante at 679. In that case, the prosecutor immediately volunteered his race-neutral reasons for striking two prospective jurors after a Batson objection was raised. Hernandez, 500 U.S. at 356, 111 S.Ct. 1859. Indeed, the prosecutor specifically stated that he had excused the two Hispanic jurors because he was uncertain that they would accept the official interpreter's translation of testimony that would be given in Spanish. Id. There was thus no doubt in Hernandez that the prosecutor had offered his race-neutral explanations, and every court to consider the case recognized that he had done so. Id. at 358, 111 S.Ct. 1859. My two colleagues in the majority here, by contrast, arc the only two judges in the extended history of this case who have concluded that race-neutral explanations were provided and that a finding was made on the ultimate issue of discrimination. Hernandez, in short, does not support the majority's decision to bypass Batson’s prima fa-cie case stage in the circumstances here.
. There was of course an African-American alternate who sat through Mahaffey’s trial, but she did not deliberate on the verdicts either at the conviction or penalty phase.