dissenting from the denial of rehearing en banc.
The Lear opinion mischaracterizes Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), in several fundamental ways, transforming the prophylactic inquiry it prescribes from an essential tool for ensuring the impartiality of a jury into a discretionary inquiry that may do more harm than good and presumptively would not alter the outcome anyway. Because that interpretation is inconsistent with the plain language of Turner and the reality of juries today, I dissent from the denial of rehearing en banc.
According to the Lear panel, Turner merely held that a defendant has the option of quizzing the jurors on their reaction to the interracial nature of the crime. If the defense counsel fails to question jurors about the interracial nature of the crimes but asks general questions about bias, we may excuse it as a tactical decision and find no deficient performance. Moreover, even if we decide an attorney did perform deficiently in failing to ask those questions, we need not find ineffective assistance because we will presume that there was no prejudice given that “it is exceedingly unlikely that directing the venire’s attention to the interracial character of Lear’s conduct would either have disposed the jury that was selected to lenity or have altered the composition of the jury in a direction favorable to him.” Ante at 829. In other words, the Lear panel sees little utility in the Turner inquiry, and thus no harm if it is forfeited. The Supreme Court, however, thought otherwise, as even a cursory glance at Turner reveals. Lear renders Turner a nullity.
Turner held that “a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” 476 U.S. at 36-37, 106 S.Ct. 1683. The right is no mere formality; it exists because there is an “unacceptable risk of racial prejudice infecting capital sentencing” in cases of interracial crime, that may be easily avoided through proper questioning of prospective jurors. Id. at 36, 106 S.Ct. 1683; see also id. at 40-41, 106 S.Ct. 1683. In a footnote which is the focus of the Lear panel, the Turner majority addressed Justice Powell’s concern in dissent that such questioning might have the negative effect of suggesting to jurors that race is somehow relevant. Id. at 37 n. 10, 106 S.Ct. 1683. In response to that concern, the Court declared that it would leave it up to a capital defendant’s counsel whether such a concern is “purely chimerical” or not, and that a court was not required to ask such questions sua sponte should a defense counsel decline to do so. Id. That acknowledgment that some defense counsel at some point in time might deem the danger of raising the issue real rather than fantastical is hardly an endorsement that the inquiry may be forfeited without consequence. The entire focus of the Turner opinion is that racial biases may affect the determination of a sentence by a capital jury in an interracial crime. Unfortunately, the problem of racism in our society remains prevalent today. Turner's recognition that the danger of racism infecting the capital sentencing decision is greater in the case of interracial crimes than in crimes in which the victims are the same race is as well-grounded in reality today as it was in 1986.
The Lear panel, however, takes that one reference to the ability of defense counsel to decline such questioning as an invitation for us to supply possible tactical reasons why a particular defense counsel in fact failed to do so. The only basis given for the panel’s conclusion that the omission was tactical is the defense counsel’s statement that he had explored the issue of *831racial prejudice with a general bias question. In his post-conviction affidavit, Lear’s defense counsel addressed this issue, stating that he “asked the [potential] jurors whether there was anything about Mr. Lear that would cause them to be biased or prejudiced and my purpose in asking that question was to address the issue of racial prejudice, as Mr. Lear was black.” Even assuming — as Lear’s defense counsel believed — that this would cause jurors to “volunteer” racial prejudices (a rather generous assumption), it does nothing to ferret out prejudices related to the interracial nature of the crime. And that is what Turner addresses. In fact, the court in Turner had also asked general questions designed to uncover bias, and that was not enough. Id. at 49, 106 S.Ct. 1683 (Powell, J. dissenting). Turner does not address prejudices based only on the race of the defendant. It instead recognizes the unacceptable risk of racial prejudice infecting the capital sentencing proceeding where the crimes involved intermcial violence. For that reason, it holds that the defendant is entitled to inform potential jurors of the race of the victim. In the same affidavit, Lear’s defense counsel attested that he “had no reason for not asking a question of the venire on voir dire whether the race of the victim would be a factor in causing them to be biased or prejudiced against Mr. Lear.” On the critical Turner issue, that addressing the interracial nature of the crime, the lawyer has provided no tactical explanation. Lear’s defense counsel has never even acknowledged an awareness of the right to a Turner inquiry. Absent knowledge that the right exists, it is impossible to consider the waiver of that right a “tactical” decision. Thus, the Lear panel mis-characterizes Turner by essentially presuming that a decision is tactical unless the facts indicate otherwise, rather than assuming the inquiry is necessary absent a reasoned decision to forego it. That turns Turner, not to mention Strickland, on its head.
This problem is further exacerbated by the curious contention that the ineffective assistance claim would be stronger if the defendant had asked his attorney to make the inquiry. I cannot comprehend how the determination of deficient performance can vary based on the defendant’s knowledge of his legal rights and his conduct in requesting that his attorney exercise those rights. An attorney’s obligation to her client does not change based upon the client’s legal savvy. That proposition grafts onto the traditional Strickland analysis an unprecedented preliminary inquiry into whether the defendant first requested that his attorney assert his rights. That additional inquiry is irrelevant to the ineffective assistance issue, and should be rejected by this court.
Finally, the most egregious error by the Lear panel is its determination that there is no prejudice. That holding is not grounded on any particular facts presented here, but on a presumption that it is “exceedingly unlikely” that such an inquiry would have either disposed the jury to lenity or favorably altered the composition of the jury. Of course, this is precisely the opposite of the presumption set forth in Turner, which held:
Our judgment in this case is that there was an unacceptable risk of racial prejudice infecting the capital sentencing proceeding. This judgment is based on a conjunction of three factors: the fact that the crime charged involved interracial violence, the broad discretion given the jury at the death-penalty hearing, and the special seriousness of the risk of improper sentencing in a capital case.
476 U.S. at 37, 106 S.Ct. 1683 (Justices White, Blackmun, Stevens & O’Connor); see also id. at 41, 106 S.Ct. 1683 (Justice Brennan, concurring in part and dissenting in part, agreeing that the confluence of factors created an unacceptable risk of a biased jury), and id. at 46, 106 S.Ct. 1683 (Justice Marshall, concurring in part and dissenting in part). All three of those factors are present here, and that was *832sufficient for the Turner Court to find an unacceptable risk that the jury was not impartial absent the questioning on the issue. In fact, “Turner explicitly rejected the dissent’s suggestion that the death sentence should stand because no actual jury prejudice was evident from the record.” Rose v. Clark, 478 U.S. 570, 587 n. 2, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (Stevens, J. concurring). The Lear panel’s presumption that the Turner questioning would have no impact on the ability to achieve an impartial jury cannot be reconciled with Turner.
Justice Powell in his Turner dissent lamented that “[b]efore today the facts that a defendant is black and his victim was white were insufficient to raise ‘a constitutionally significant likelihood that, absent questioning about racial prejudice,’ an impartial jury would not be seated.” The Lear panel has answered his lament by adopting his dissent. After Lear, at least in the Seventh Circuit, the fact that a defendant is black and his victim was white is now insufficient to raise a constitutionally significant likelihood that, absent questioning about racial prejudice, an impartial jury would not be seated. Because this eviscerates Turner, I dissent from the denial of rehearing en banc.