Abu-Jamal v. Horn

AMBRO, Circuit Judge,

concurring in part and dissenting in part:

Excluding even a single person from a jury because of race violates the Equal Protection Clause of our Constitution. See Batson v. Kentucky, 476 U.S. 79, 84-86, 99 n. 22, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This simple justice principle was reaffirmed by our Supreme Court this past week. Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 1207, — L.Ed.2d - (2008).

The Supreme Court in Batson acknowledged how important this principle is by replacing the standard it set out but two decades before in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Swain required a defendant to show proof of racially discriminatory peremptory challenges over a series of cases; after Batson, a defendant may “make a prima facie showing of purposeful racial discrimination in the selection of the venire by relying solely on the facts concerning ... his case.” Batson, 476 U.S. at 95, 106 S.Ct. 1712 (emphasis in original). In so holding, the Court made no statement that a defendant forfeited his right to a fair jury trial of his peers if he failed to object to a prosecutor’s racially discriminatory use of peremptory strikes in jury selection during the selection itself. Nor did it impose an onerous burden on a defendant to set in motion Batson’s burden-shifting framework by making a prima facie case.

*305Against this backdrop, I cannot agree with the imposition by my colleagues in the majority of a contemporaneous objection requirement for violations of equal protection in jury selection. They nevertheless reach the merits despite this procedural ruling, and I do not agree with them that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson. In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for. A prima facie case, the first step in the three-step Batson analysis, does not mean a defendant prevails. It does mean that he is permitted to proceed to the next step. Because we do not so proceed when I believe we should, I respectfully dissent as to these issues.31

I. Contemporaneous Objection Rule

I address first this case’s newly created contemporaneous objection rule for habeas petitions. This rule imposes, as a prerequisite to the federal claim, the requirement that a defendant make a “timely”32 objection to the prosecutor’s racially based use of peremptory challenges. It goes against the grain of our prior actions, as our Court has addressed Batson challenges on the merits without requiring that an objection be made during jury selection in order to preserve habeas review.

A. Should Our Court Require a Contemporaneous Objection in a State-Court Trial as a Prerequisite to a Federal Batson Claim?

As my colleagues concede, Abu-Jamal’s failure to lodge an objection to the exclusion of black potential jurors contemporaneous to that event would not result in a state procedural bar33 because the Pennsylvania Courts (with the federal District Court following suit) considered Abu-Jamal’s Batson claim on its merits. But in this case our Court imposes a federal contemporaneous objection requirement — as a prerequisite for a Batson claim — in addition to any potential state procedural bar. I do not agree with such a requirement, and I do not believe that Abu-Jamal forfeited his right to present a Batson claim by failing to lodge an objection before trial.

No doubt an objection made at the time of a prosecutor’s constitutionally infirm use of a peremptory challenge is most apt to ensure that Batson issues are addressed expediently and efficiently. The trial judge can best set the right remedy quickly, such as “discharging] the venire and selecting] a new jury from a panel not previously associated with the case or ... disallowing] the discriminatory challenges and resuming] selection with the improperly challenged jurors reinstated on the venire.” Batson, 476 U.S. at 99 n. 24, 106 S.Ct. 1712 (citations omitted). After the *306jury is seated and the trial proceeds, the ante escalates; if we determine that the prosecution exercised its peremptory challenges in violation of Batson, “our precedents require that [a] petitioner’s conviction be reversed.” Id. at 100, 106 S.Ct. 1712.

That a contemporaneous objection is helpful in the context of Batson does not mean, however, that it is constitutionally called for. The Supreme Court has never announced a rule requiring a contemporaneous objection as a matter of federal constitutional law, and I see no reason for us to do so now. The Court, in leaving the implementation of the Batson decision to the trial courts, stated that “[w]e decline ... to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” Id. at 99, 106 S.Ct. 1712. My colleagues believe this demonstrates that the Supreme Court “ ‘envisioned an objection raised during the jury selection process’ ” prior to trial. See Maj. Op. 280-81 (quoting McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir.1996)). What they overlook is that, even if the Supreme Court “envisioned” an objection, it authorized the states to craft rules for it as a matter of state procedural law.34 Thus, I read this sentence from Batson as emphasizing that the Court trusts the state courts to fashion their own protocol and will not “formulate particular procedures to be followed,” including the procedures governing the timeliness of an objection. See Batson, 476 U.S. at 99, 106 S.Ct. 1712.

And that is as it should be. As stated above, the trial court has significantly more options to address a Batson violation when it is discerned during jury selection. But nowhere in the Supreme Court’s grant of discretion to trial courts is the pronouncement that, where a contemporaneous objection is not made and the state courts nonetheless consider the Batson claim on the merits, a federal court will subsequently be barred from reviewing the merits of a petitioner’s claim that the prosecution’s use of a peremptory challenge violated the Constitution. Our Court today makes that pronouncement.

B. Subsequent Supreme Court Caselaw on Contemporaneous Objections in Batson Cases: Ford v. Georgia

Since Batson, the Supreme Court still has not indicated that a contemporaneous objection is a prerequisite to a federal Batson claim. To the contrary, in Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991),35 the Court reaffirmed “[t]he appropriateness in general of look*307ing to local rules for the law governing the timeliness of a constitutional claim.” Id. at 423, 111 S.Ct. 850. It continued:

In Batson itself, for example, we imposed no new procedural rules and declined either “to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges,” or to decide when an objection must be made to be timely. Instead, we recognized that local practices would indicate the proper deadlines in the contexts of the various procedures used to try criminal cases, and we left it to the trial courts, with their wide “variety of jury selection practices,” to implement Batson in the first instance.

Id. (citations omitted). The Court was explicit in stating that the issue of “when an objection must be made to be timely” is a matter of “local practice[ ]” rather than federal law. Moreover, it never indicated that, as a matter of federal law, a “general rule” of timeliness existed. Thus, the presence or absence of a contemporaneous objection is purely an issue of state procedural law. If a state court rejects a defendant’s Batson claim as a matter of state law because it was not made within the time-frame specified by the state’s procedural rules, and the federal court determines that the state rule functions as an independent and adequate basis for decision, then the federal court will be proce*308durally barred from hearing the claim. See supra n. 33; cf. Cabrera v. Barbo, 175 F.3d 307, 312-13 (3d Cir.1997). However, where the state does not require such an objection — or, as here, where the Commonwealth’s relaxed waiver rule is not capable of serving as an independent and adequate state law procedural bar — the federal court should proceed to the merits of the Batson claim.

My colleagues respond that the Court’s analysis of Georgia’s state procedural rule in Ford is not directly controlling on whether there is a parallel federal rule. To be sure, it would be helpful if the Supreme Court had explicitly renounced the existence of a federal contemporaneous objection rule. Yet it cannot be ignored that the Court in Ford implicitly relied on the non-existence of such a federal analog. It determined that Georgia’s procedural rule about the timing of a Batson objection did not bar consideration of the issue in federal court. If a federal contemporaneous objection rule did exist as an independent bar, one would expect the Court to have considered next whether Ford had satisfied that rule.

C. Caselaw of Our Court

Our Court has previously reached the merits of Batson claims on habeas review in cases where the petitioner did not make a timely objection during jury selection— signaling that our Circuit does not have a federal contemporaneous objection rule— and I see no reason why we should not afford Abu-Jamal the courtesy of our precedents. See, e.g., Wilson v. Beard, 426 F.3d 653, 659 (3d Cir.2005); Hardcastle v. Horn, 368 F.3d 246, 251 (3d Cir.2004); Riley v. Taylor, 277 F.3d 261, 273 (3d Cir.2001) (en banc ).36

In Wilson, the defendant never made a Batson objection pre-trial, during trial, or even in his first post-conviction collateral proceeding. After the release of a videotape detailing the Philadelphia District Attorney’s suggestions on how to keep blacks off juries,37 Wilson filed a second post-*310conviction petition raising a Batson claim, Wilson, 426 F.3d at 658, and we reviewed it on the merits, id. at 666-70. If a contemporaneous objection were required as a prerequisite to the federal claim, we could not have proceeded to the merits of Wilson’s claim.

Next, in Hardcastle the prosecutor had twenty available peremptory challenges, which she used to remove twelve of the fourteen black members of the jury venire. 368 F.3d at 251. The result was a jury that had only one black member. Id. Hardcastle’s attorney did not object to the prosecutor’s use of peremptory challenges during jury selection, but did subsequently move for a mistrial after voir dire — a motion that was denied.38 Id. On habeas review, we entertained the merits of Hard-castle’s Batson claim without considering whether Batson required a contemporaneous objection to be made during jury selection.

Finally, in Riley the defendant was convicted by an all-white jury, and his counsel made no Batson objection at the time of jury selection. 277 F.3d at 271-72, 274. When Riley raised a Batson claim in his habeas petition, the District Court held that it was procedurally defaulted because it was never presented to the trial court. Id. at 274. When our Court considered the issue en banc, we held that the claim was not procedurally barred because the last state court to consider the claim did so on the merits. Id. at 274-75.

Our caselaw repeats to become a simple refrain: If a contemporaneous objection were required as a prerequisite to a federal Batson claim, we could not have reached the issue on the merits.39 Why we pick this case to depart from that reasoning I do not know. Accordingly, assuming that Abu-Jamal did not raise a timely objection, that would not be fatal to his federal Batson claim unless he violated a Pennsylvania state procedural rule that *311served as an independent and adequate state ground to preclude federal review.

D. The Failure to Object Contemporaneously to a Batson Violation Is a Matter of State Procedural Law

Rather than looking at this as a matter of federal constitutional law, we should treat the failure to lodge a contemporaneous objection as one of state procedural law. This approach accords with both Batson, in which the Supreme Court emphasized that trial courts were in the best position to address Batson’s implementation, 476 U.S. at 99 n. 24, 106 S.Ct. 1712, and Ford, in which the Court noted that it was appropriate to “look[] to local rules for the law governing the timeliness of a constitutional claim.” 498 U.S. at 423, 111 S.Ct. 850. As I believe the presence or absence of a contemporaneous objection is an issue of state-law procedure and not a matter of federal constitutional law, I next consider whether Abu-Jamal procedurally defaulted under Pennsylvania law.

The United States Supreme Court has been unequivocal on the issue of procedural default: “If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Here, the Pennsylvania Supreme Court considered the merits on both direct appeal and state collateral review under the Pennsylvania Post-Conviction Relief Act (PCRA). Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 849-850 (1989) (explaining that the Pennsylvania Courts often applied a relaxed waiver rule in capital cases, and then reaching the merits of Abu-Jamal’s Batson claim); Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 114 (1998) (reaching the merits of Abu-Jamahs Bat-son claim).

My colleagues recognize this. See Maj. Op. 284-87. The District Court also recognized this and found no bar to federal consideration of the Batson claim on the merits. Abu-Jamal, 2001 WL 1609690, at * 104 (“Moreover, [the Batson claim] was adjudicated on the merits by the state courts.”).

Curiously, as to the issue of procedural default here, my colleagues and I agree. See Maj. Op. 287. (“Without a clear and express statement that the state court denied relief on independent state procedural grounds, we cannot find the claim procedurally defaulted.”). I query then why they would choose to come out now with a federal standard when that was not the law heretofore in our Circuit.

Because until now there has been no federal contemporaneous objection rule in our Circuit (in fact, our practice to date has been not to impose such a rule) and Abu-Jamal’s claim is not procedurally barred under state law, I turn to the merits of his Batson claim.40

II. Prima Facie Case

When evaluating Abu-Jamal’s Batson claim on the merits, both the Pennsylvania Courts on appeal and post-conviction relief review, and the District Court on habeas review, erroneously denied the claim based on what I believe is an incorrect analysis of the legal standards governing when a prima facie case is made.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), which governs our review of habeas cases, we must *312review the Pennsylvania Supreme Court’s ruling on Abu-Jamal’s Batson claim to determine whether it was “contrary to” or an “unreasonable application of’ clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1); see also Schriro v. Landrigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). A state court decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A ruling fails under the “unreasonable application” prong where

the court identifies the correct governing rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular case or if the state court either unreasonably extends a legal principle from the Supreme Court’s precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply.

Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir.2003) (quoting Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir.2002)). The state court’s application must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). While decisions of the lower federal courts are not binding precedent for state supreme courts under AED-PA, their decisions may prove instructive in discerning what is “reasonable,” especially where “the governing Supreme Court precedent articulates a broad principle that applies to a wide variety of factual patterns.” Ouber v. Guarino, 293 F.3d 19, 26 (1st Cir.2002); see also Matteo v. SCI Albion, 171 F.3d 877, 890 (3d Cir.1999) (“[W]e do not believe federal habeas courts are precluded from considering the decisions of the inferior federal courts when evaluating whether the state court’s application of the law was reasonable.... Thus, in certain cases it may be appropriate to consider the decisions of inferior federal courts as helpful amplifications of Supreme Court precedent.”).

It is the unreasonableness prong with which we are concerned today. My colleagues conclude that it was not “objectively unreasonable” for the Pennsylvania Supreme Court “to find [that] Abu-Jamal had not established a prima facie case based on either a pattern of peremptory strikes or any other circumstances.” Maj. Op. 293-94. They further determine that “the record does not include evidence of the number or racial composition of the venire,” rendering “the record ... fatally deficient to support a successful challenge to the Pennsylvania Supreme Court’s decision finding no prima facie case under Batson.” Maj. Op. 292.

Despite the deferential standard of review, I believe that the Pennsylvania Supreme Court unreasonably applied Batson in finding that Abu-Jamal failed to satisfy his prima facie burden and, on that basis, denying the claim without conducting the next, required steps of the Batson inquiry. The evidence here points to the conclusion that there was a prima facie case. Moreover, that it is now impossible for a judge to engage in a more comprehensive consideration of the Batson challenge here (ie., without complete data about the strike and exclusion rates,41 as well as the racial and *313numerical composition of the entire jury venire) does not mean that we should dispense with Batson’s promise of ending discrimination in jury selection. To the contrary, Abu-Jamal is entitled to remand for consideration of his claim on the evidence that does exist and for further development of the record. See Hardcastle, 368 F.3d at 262.

A. Establishing a Prima Facie Case Is a Light Burden

As pointed out in the majority opinion, Batson developed a burden-shifting framework to evaluate the constitutionality of peremptory challenges based on race: “First, the defendant must establish a prima facie case of purposeful discrimination. Second, if a prima facie case is found, the prosecution must articulate a race-neutral justification for the challenged strikes. Third, after considering both parties’ submissions, the trial court must determine whether the defendant has established purposeful discrimination.” Maj. Op. 288 (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712; Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

To establish a prima facie case under Batson’s first prong is, in turn, also a three-part inquiry (though the second step of that inquiry is self-answering):

[First,] the defendant ... must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

Batson, 476 U.S. at 96, 106 S.Ct. 1712 (citations omitted); accord Johnson v. California, 545 U.S. 162, 169, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).42

The burden of establishing a prima facie case is easily met. In lowering the standard for making out a prima facie case of discriminatory voir dire practice through the use of peremptory strikes, Batson pointed to the evidentiary framework for prima facie claims in Title VII discrimination cases. Batson, 476 U.S. at 93-94 & nn. 18-19, 106 S.Ct. 1712 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). There the prima facie burden is “not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. As in the Title VII context, the Supreme Court has emphasized that the overriding purpose is to eliminate discrimination. See Batson, 476 U.S. at 99 n. 22, 106 S.Ct. 1712. It seems only reasonable then that, as with Title VII, the burden for making out a prima facie case under Batson is also not heavy. See Johnson, 545 U.S. at 170, 125 S.Ct. *3142410 (noting that the prima facie case under Batson, like in the Title YII context, is not “onerous”),43 see also Aspen v. Bissonnette, 480 F.3d 571, 574 (1st Cir.2007) (“[T]he Supreme Court has recently reiterated that the Batson prima facie standard is not onerous.” (citing Johnson, 545 U.S. at 170, 125 S.Ct. 2410)).44

We should not, therefore, raise the burden higher than what the Supreme Court requires. See Sorto v. Herbert, 497 F.3d 163, 178 (2d Cir.2007) (Pooler, J., dissenting) (“[W]e do both defendants and ordinary citizens a disservice when we create unnecessary obstacles to [the assertion of a Batson claim].”).

B. A Single Improper Strike Is Enough

Batson was “designed to ensure that a State does not use peremptory challenges to strike any black juror because of his race.” 476 U.S. at 99 n. 22, 106 S.Ct. 1712 (emphasis added). Following suit, we have repeatedly said that a defendant can make out a prima facie case for jury-selection discrimination by showing that the prosecution struck a single juror because of race. Holloway v. Horn, 355 F.3d 707, 720 (3d Cir.2004) (“Consistent with [Bat-son]| principiéis], courts have recognized that a prosecutor’s purposeful discrimination in excluding even a single juror on account of race cannot be tolerated as consistent with the guarantee of equal protection under the law.” (citing Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir.1990))). In fact, in United States v. Clemons, 843 F.2d 741, 747 (3d Cir.1988), we explained that “[s]triking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks.” Accord Snyder, 128 S.Ct. at 1208; Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir.1995); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994); United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987).

Yet the majority focuses on the absence of information about the racial composition and total number of the venire, claiming that this statistical information — from which one can compute the exclusion rate — is necessary to assess whether an inference of discrimination can be discerned in Abu-Jamal’s case. Such a focus is contrary to the nondiscrimination principle underpinning Batson, and it conflicts with our Court’s precedents, in which we have held that there is no “magic number or percentage [necessary] to trigger a Bat-son inquiry,” and that “ ‘Batson does not *315require that the government adhere to a specific mathematical formula in the exercise of its peremptory challenges.’” Clemons, 843 F.2d at 746 (quoting United States v. Montgomery, 819 F.2d 847, 851 (8th Cir.1987)).

C. All Relevant Circumstances Must Be Taken into Account

Not only is one instance of juror discrimination enough to make a prima facie showing, but courts must look at “all relevant circumstances” to determine whether they “give rise to an inference of discrimination.” Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. Batson provides a non-exhaustive list of factors. See id. at 97, 106 S.Ct. 1712 (“These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges create[] a prima facie case of discrimination against black jurors.”). One of these factors is whether a “ ‘pattern’ of strikes against black jurors ... in the particular venire might give rise to an inference of discrimination.” Id. Another is “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges[, which] may support or refute an inference of discriminatory purpose.” Id. In addition to the two factors specifically articulated in Batson, our Court has explained that the following factors may be relevant to the analysis: “(1) the number of racial group members in the panel, (2) the nature of he crime,[45 and] (3) the race of the defendant and the victim.” Simmons, 44 F.3d at 1167; see also Clemons, 843 F.2d at 748. This list is not exhaustive, as “[o]ur discussion should not be construed as barring trial judges from addressing other facts and circumstances or as binding trial judges by our illustrative list.” Clemons, 843 F.2d at 748.

D. Consideration of the Relevant Factors Establishes a Prima Facie Case

It is with these factors in mind that I turn to the facts of Abu-Jamal’s case developed to date. While there is a limited record in this case — after all, Abu-Jamal’s trial took place before the Supreme Court had laid out the prima facie framework in Batson — we do have enough information before us from which to conclude that he established a prima facie case of racial discrimination in jury selection. First, Abu-Jamal is black, and therefore “a member of a cognizable racial group.” Batson, 476 U.S. at 96, 106 S.Ct. 1712. Additionally, we know that the prosecutor exercised peremptory challenges against black prospective jurors.46 Thus, Abu-*316Jamal clearly meets the first prong of Batson’s prima facie inquiry.

With regard to the second prong, Abu-Jamal is “entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Id. (internal quotation marks omitted). Thus, having satisfied the first two prongs of the prima facie case, we reach the point where I depart from my colleagues.

To meet the third and final prong of the prima facie case — and thus shift the burden to the Commonwealth to articulate race-neutral justifications for the challenged strikes — all Abu-Jamal needs to do is “show that these facts and other relevant circumstances raise an inference that the prosecutor ... excluded the veniremen ... on account of their race.” Id. Bear in mind that Abu-Jamal does not need to prove that the prosecutor was actually acting to strike jurors on account of their race; to the contrary, he only needs to “raise an inference ” that discrimination was afoot.

We know that the prosecutor exercised 15 peremptory strikes, 10 of which were used to remove black venirepersons. Commonwealth v. Abu-Jamal, No. 1357, 1995 WL 1315980, at *103 (C.P.Ct.Phila.Cty. Sept. 15, 1995) (hereinafter PCRA Op.). That means that the “strike rate” for blacks was 66.67%. As the Supreme Court has noted, “[h]appenstance is unlikely to produce this disparity.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029 (“In this case [where 10 of 14 peremptory strikes were used against black venirepersons, resulting in a strike rate of 71.43% and an exclusion rate of 91%] the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.”).47 It is my belief that the 66.67% strike rate, without reference to the total venire, can stand on its own for the purpose of raising an inference of discrimination. See Batson, 476 U.S. at 97, 106 S.Ct. 1712.

My colleagues attempt to downplay the strike rate by saying that it is essentially meaningless without reference to the racial makeup of the venire as a whole. They *317claim it is impossible to understand such a high strike rate without “contextual markers” about the entire jury venire. Maj. Op. 292. While such “markers” would be helpful, the lack of a record containing that information should not serve as an absolute bar to Abu-Jamal’s claim.48 Simply put, the failure to develop a record of the entire venire pool or all black members in that pool (against which to compare the prosecutor’s use of peremptory strikes) does not defeat a prima facie Batson claim. This is because Batson does not place the burden on the petitioner to develop a full statistical accounting in order to clear the low prima facie hurdle of the Batson analysis. See Holloway, 355 F.3d at 728.

In Holloway, we emphasized that “requiring the presentation of [a record detailing the race of the venire] simply to move past the first [prima facie ] stage in the Batson analysis places an undue burden upon the defendant.” Id. at 728. There we found that the strike rate — 11 of 12 peremptory strikes against black persons — satisfied the prima facie burden despite the lack of contextual markers my colleagues now seek here.49 Id. at 729;50 see also Simmons, 44 F.3d at 1168.

*318We have relied on the strike rate alone despite the absence of other contextual markers in post-AEDPA cases. In Brinson v. Vaughn, 398 F.3d 225 (3d Cir.2005), we ruled that it was an unreasonable application of law to find that the petitioner had not made out a prima facie case where the prosecutor had allegedly used 13 of his 14 peremptory challenges against black potential jurors. Id. at 235. We did not have information about the total venire or number of black persons in that venire, but we nevertheless held that “[t]he pattern of strikes alleged by the defense is alone sufficient to establish a prima facie case under the [present] circumstances.” Id. This was so even though “other factors suggestive of possible racial discrimination on the part of the prosecution [we]re not present in the record of th[e] case.” Id. We emphasized that “[s]uch a pattern, of course, does not necessarily establish racial discrimination, but particularly in the absence of any circumstance (such as a venire composed almost entirely of African Americans) that might provide an innocent explanation, such a pattern is more than sufficient to require a trial court to proceed to step two of the Batson procedure.” Id.

Furthermore, in Hardcastle we also faced the problem of an underdeveloped record. And yet we concluded (at least implicitly51) that a prima facie case existed by relying on the strike rate, where the prosecutor used 12 of her 20 strikes against black candidates for the jury.52 We remanded the case for an evidentiary hearing to allow the Commonwealth to offer race-neutral reasons and for a reexamination of the merits of Batson on steps two and three.

Inasmuch as decisions of the lower federal courts are illustrative of what is reasonable — and Brinson and Hardcastle are decisions of our own Court — they are instructive of the outcome in this case. Abu-Jamal made out a prima facie case, calling for the courts to go further to test whether racial discrimination tainted the makeup of the jury that decided his guilt, and the failure of the Pennsylvania Courts to recognize this was an unreasonable application of the law.

Yet even setting aside statistical calculations about the strike and exclusion rates, the other relevant factors in this case further demonstrate that Abu-Jamal has satisfied his prima facie burden. At the very least, my colleagues and the Pennsylvania Courts should have considered that this was a racially charged case, involving a black defendant and a white victim. See Simmons, 44 F.3d at 1168 (“The nature of the crime and its racial configuration ... contribute significantly to [a] prima facie *319case.”)-53 It is further noteworthy that Abu-Jamal was a member of the Black Panther Party and that he was charged with killing a police officer. Finally, it cannot be ignored that this is a capital case. See Riley, 277 F.3d at 287.

My colleagues dispense with these considerations in a footnote, stating merely that “Abu-Jamal has not demonstrated that these allegations make the Pennsylvania Supreme Court’s decision objectively unreasonable.” Maj. Op. 291 n. 17. Their cursory consideration of these critical factors mirrors that of the Pennsylvania Courts. I believe this misapplies Batson, for it fails to “consider all relevant circumstances” of our case.

I am mindful that, under AEDPA, our role is to determine whether “[t]he state court’s application of clearly established law [was] objectively unreasonable.” Lockyer, 588 U.S. at 75, 123 S.Ct. 1166. However, because Batson’s prima facie burden is low-set, and after looking at the strike rate and other relevant factors in this case, I conclude that it was objectively unreasonable for the Pennsylvania Supreme Court to determine that Abu-Jamal failed to make out a prima facie case. I would hold that Abu-Jamal met his prima facie burden and remand to the District Court to hold a hearing to complete the Batson analysis. See Hardcastle, 368 F.3d at 261-62.

III. Conclusion

Prima facie means “[a]t first sight.” Black’s Law Dictionary 1228 (8th ed.2004). I believe that Abu-Jamal presents a case that, at first sight, infers (i.e., suggests) a reasonable possibility that the prosecutor excluded potential black jurors because of race. This inference requires courts to look further. To move past the prima facie case is not to throw open the jailhouse doors and overturn Abu-Jamal’s conviction. It is merely to take the next step in deciding whether race was imper-missibly considered during jury selection in his case. Having determined that Abu-Jamal met his prima facie burden at step one, I would remand for the District Court to complete an analysis of the remaining steps of the Batson claim, starting at step two, where the burden shifts to the Commonwealth to “come forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 97, 106 S.Ct. 1712. If the Commonwealth does so, the Court should proceed to step three and assess whether the reason(s) given are valid or pretextual in determining, on the basis of the evidence presented, whether purposeful discrimination did occur. See id. at 98, 106 S.Ct. 1712.

No matter how guilty one may be, he or she is entitled to a fair and impartial trial by a jury of his or her peers. As Batson reminds us, “[t]he core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of ... race.” Id. at 97-98, 106 S.Ct. 1712. I fear today that we weaken the effect of Batson by imposing a contemporaneous objection requirement where none was previously present in our Court’s jurisprudence and by raising the low bar for a prima facie case of discrimination in jury selection to a height unattainable if enough time has passed such that original jury *320records are not available. In so holding, we do a disservice to Batson. I respectfully dissent.

. I agree with my colleagues on all other issues save Section VLB of the majority opinion. There I concur in the judgment that a violation of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), has occurred in sentencing. Among other reasons, that outcome follows our controlling precedents in Frey v. Fulcomer, 132 F.3d 916 (3d Cir.1997), and Banks v. Horn, 271 F.3d 527 (3d Cir.2001), rev'd on other grounds, 536 U.S. 266, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002).

. My colleagues, regrettably, do not define what in their opinion is a “timely” objection for the purpose of preserving a Batson claim.

. It is well-established that a federal court will not consider " ‘a question of federal law decided by a state court if the decision of that [state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Lambrix v. Singletary, 520 U.S. 518, 522-23, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

. This view is confirmed by the Supreme Court’s opinion in Ford v. Georgia, where it noted that "[i]n Batson ... we ... declined ... to decide when an objection must be made to be timely. Instead, we recognized that local practices would indicate the proper deadlines....” 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (citation omitted). For further discussion of Ford, see infra Part I.B.

. Ford concerned the adequacy of a new state procedural rule that required Batson claims to be raised after the jury was selected but before jurors were sworn. Ford had made his objection before, but not at, jury selection, and the State of Georgia argued that it was therefore untimely under the rule. Ford, 498 U.S. at 419, 421, 111 S.Ct 850. The Supreme Court had to decide whether Georgia’s rule — created after Ford's trial— operated as an independent and adequate state ground to preclude federal consideration of Ford’s Batson claim on the merits. It held that, as a general matter, "[ujndoubtedly ... a state court may adopt a general rule that a Batson claim is untimely if it is raised for the first time on appeal, or after the jury is sworn, or before its members are selected.” Id. at 423, 111 S.Ct. 850. However, the Court went on to determine that Georgia's procedural rule was not an "adequate and independent state procedural bar” because it had not been developed until after Ford’s trial. Id. at 424, 111 S.Ct. 850. To apply it retroactively, the *307Court reasoned, "would therefore apply a rule unannounced at the time of petitioner’s trial and consequently inadequate to serve as an independent state ground.” Id.

Interestingly, it is at least arguable that Abu-Jamal presented an objection before trial in much the same way that Ford did. On March 18, 1982, before jury selection or trial had started, Abu-Jamal filed a pretrial motion seeking to distribute questionnaires to the potential members of his jury venire pool in an effort to ensure that he was tried by “a fair and impartial jury.” Transcript of March 18, 1982, at 11-13. At the motion hearing, the following colloquy took place between Abu-Jamal’s counsel and the Court:

[Defense counsel:] We — as Your Honor well knows — we have twenty peremptory challenges in a criminal case. It has been the custom and the tradition of the District Attorney's Office to strike each and every black juror that comes up peremptorily. It has been my experience since I have been practicing law, as well as the experience of the defense bar, ... that that occurs.
The Court: The district attorney says he does not agree with that statement.
[Defense counsel:] ... I am not saying, Your Honor, that that questionnaire or any other procedure that Your Honor might approve would in fact insure any black representation on the jury. What I am saying is that even if it’s an all white jury, Your Honor, I want to be certain that it's a fair and impartial jury.

Id. at 12-13.

The District Court did not acknowledge this portion of the record. See Abu-Jamal v. Horn, No. 99-5089, 2001 WL 1609690, at *105 (E.D.Pa. Dec. 18, 2001). My colleagues mention it in a footnote and discount it on the basis that "Abu-Jamal’s motion to distribute a questionnaire to all prospective jurors is different from lodging a timely objection during the juiy selection process.” Maj. Op. 284 n. 10. However, this colloquy served to put the trial court on notice that the prosecutor might use peremptory challenges in a discriminatory fashion. Defense counsel framed the issue in a manner consistent with the then-prevailing Swain standard, which required a defendant to demonstrate that a prosecutor repeatedly struck blacks over a number of cases to make out a claim for an equal protection violation in the prosecutorial use of peremptory strikes. See Swain, 380 U.S. at 223-24, 85 S.Ct. 824. If my colleagues are driven to create a contemporaneous objection rule because it ”alert[s] the [trial] judge to errors that might be corrected in the first instance and give[s] the judge the opportunity to develop a complete record of the jury selection process for appellate review,” Maj. Op. 282, it is reasonable that they should inquire whether the above colloquy could have served to put the trial judge on adequate notice. They do not do so, and thus this inquiry fails for lack of a second vote.

. In creating the contemporaneous objection requirement, my colleagues cite cases from other Courts of Appeals that treat the failure to lodge a contemporaneous objection as a constitutional bar to and/or waiver of the claim. See, e.g., McCrory, 82 F.3d at 1249 ("[W]e hold that the failure to object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection waives the objection.”); Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir.1992) ("[The] failure to timely object at trial is a constitutional bar to [a] Batson challenge.”). These cases, of course, are not binding precedent on our Court. To the contrary, our previous cases have reached the merits of Batson claims despite the absence of a contemporaneous objection.

. As explained in Wilson, the facts surrounding the videotape are as follows:

In 1997, Jack McMahon, the Assistant District Attorney who prosecuted Wilson's first case, won the Republican nomination to challenge incumbent District Attorney Lynne Abraham. On March 31, 1997, eleven days after the primary election, Abraham released a videotape from the late 1980s which showed McMahon giving a training session on jury selection to other prosecutors in the District Attorney’s Office. In the tape, McMahon makes a number of highly inflammatory comments implying that he regularly seeks to keep qualified African-Americans from serving on juries. Since these comments are central to [Wilson's] appeal, we will quote from them at length.
McMahon began his presentation by reviewing the procedures followed by Pennsylvania courts in selecting juries. He then proceeded to discuss his views of the goals a prosecutor should have in mind in selecting a jury:
The case law says that the object of getting a jury is to get — I wrote it down. I looked in the cases. I had to look this up because I didn't know this was the purpose of a jury. "Voir dire is to get a competent, fair, and impartial jury.” Well, that's ridiculous. You’re not trying to get that. You're — both sides are trying to get the jury *309most likely to do whatever they want them to do.
And if you go in there and any one of you think you’re going to be some noble civil libertarian and try to get jurors, "Well, he says he can be fair; I’ll go with him," that’s ridiculous. You'll lose and you'll be out of the office; you'll be doing corporate law. McMahon went on to discuss certain categories of people that he believed did not make good jurors. At various times in the tape, he told the assembled prosecutors to avoid “smart people,” law students and lawyers, social workers, "very esoteric people,” teachers, and "intelligent doctors.” But the group he discussed most was African-Americans:
And that is — and, let’s face it, again, there's [sic] the blacks from the low-income areas are less likely to convict. It’s just — I understand it. It's [an] understandable proposition. There is a resentment for law enforcement, there’s a resentment for authority, and, as a result, you don’t want those people on your jury. And it may appear as if you’re being racist or whatnot, but, again, you are just being realistic. You're just trying to win the case.
McMahon told his audience that, while many types of blacks were poor jurors, certain blacks could be prosecution-friendly:
Another factor — I'll tell you, if — you know, in selecting blacks, again, you don't want the real educated ones, again. This goes across the board of all races; you don't want smart people. And, again, but if you’re sitting down and you're going to take blacks, you want older blacks. You want older black men and women, particularly men. Older black men are very good. Guys 70, 75 years old are very good jurors, generally speaking....
Older black women, on the other hand, when you have like a black defendant who's a young boy and they can identify as his, you know — motherly type thing, are a little bit more different....
The other thing is blacks from the South, excellent....
In particular, he advised his audience to avoid [younger] black women:
[I]n my experience, black women, young black women[ — ]are very bad. There’s an antagonism. I guess maybe because they’re downtrodden on two respects, they got two minorities, they’re women and they're ... blacks, so they're downtrodden in two areas .... And so younger black women are difficult, I’ve found.
In order to maintain the proper racial composition, McMahon advised his audience to record the race of potential jurors:
Another thing to do ... when a jury comes in the room, ... count them. Count the blacks and whites. You want to know at every point in that case where you are.... You don't want to look there or go, "Is there a black back there? Wait a minute. Are you a black guy?”
McMahon then proceeded to end his presentation, ironically, with a brief discussion of the Supreme Court's decision in Batson:
One other — now, I'm sure you're all familiar, if we talk about the case law — I generally don't talk much about case law, but the new case is Batson versus Kentucky. I'm sure you've all become aware of that case....
But in the future we’re going to have to be aware of this case, and the best way to avoid any problems with it is to protect yourself. And my advice would be in that situation is when you do have a black jury, you question them at length. And on this little sheet that you have, mark something down that you can articulate [at a] later time if something happens, because if they — because the way the case is stated, that it's only after a prima facie showing that you're doing this that it becomes — that the trial judge can then order you to then start showing why you’re striking them not on [a] racial basis.
So if — let's say you strike three blacks to start with, the first three people. And then it's like the defense attorney makes an objection saying that you're striking blacks. Well, you’re not going to be able to go back and say, oh — and make something up about why you did it. Write it down right then and there.
... So sometimes under that line you may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race. So that's how to pick a jury.

Wilson, 426 F.3d at 656-58.

*310The videotape is noteworthy because it prompted Wilson to raise his Batson claim despite the absence of a contemporaneous objection. But it is further significant because it gives a view of the culture of the Philadelphia District Attorney's Office in the 1980s.
The District Court in Abu-Jamal’s case found the tape to be “irrelevant” because it was produced five years after his trial and because he was prosecuted by someone other than McMahon. Abu-Jamal, 2001 WL 1609690, at * 109. However, I find it difficult to believe that the culture in the Philadelphia D.A.’s Office was any better five years before the training video was made. Indeed, given that Abu-Jamal’s trial preceded Batson, it is not far-fetched to argue that the culture of discrimination was even worse. Moreover, to the extent that this video was of a training session in the D.A.'s Office — a training session, apparently, on how to deal with the Supreme Court's pronouncement in Batson— the obvious question is whether the sentiments expressed were limited specifically to one prosecutor or whether they existed throughout the office.

. In their discussion of the motion for a mistrial in Hardcastle, my colleagues appear to intimate that such a motion could suffice as a timely objection under their newly created contemporaneous objection rule. Maj. Op. 280 n. 3. Given their belief that the Court in Batson “envisioned an objection raised during the jury selection process,” Maj. Op. 280-81 (internal quotation marks omitted), I fail to see how they could construe Hardcastle’s motion — made after voir dire was completed and the jury was empaneled, but prior to trial — as satisfying their objection requirement. Thus, not only is our Court now imposing an additional ¡imitation on a criminal defendant's ability to raise a Batson claim, it is declining to set out the parameters of that new rule.

. My colleagues cite one case in which we held on direct appeal that a petitioner had waived his Batson claim by failing to make a contemporaneous objection. See Gov't of the Virgin Islands v. Forte, 806 F.2d 73, 75 (3d Cir.1986); Maj. Op. 280. But Forte involved the direct appeal of a federal criminal conviction, and thus our waiver analysis was based on the operation of a Federal Rule of Criminal Procedure. As such, Forte has no bearing on our analysis of whether Abu-Jamal was required to make a contemporaneous Batson objection in the state-court trial to preserve federal habeas consideration of his claim.

. As noted, I find it curious that, while my colleagues "believe a timely objection is required to preserve [the Batson] issue on appeal,” Maj. Op. 284, they nevertheless continue on to the merits of Abu-Jamal's Batson claim.

. As the majority explains, the "strike rate” is calculated "by comparing the number of peremptory strikes the prosecutor used to remove black potential jurors with the prosecutor's total number of peremptory strikes exercised.” Maj. Op. 290. By contrast, the *313“exclusion rate” is “calculated by comparing the percentage of exercised challenges used against black potential jurors with the percentage of black potential jurors known to be in the venire.” Maj. Op. 290.

. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Supreme Court modified the Batson prima facie case to allow a defendant to raise a Batson challenge in cases where the defendant and the excluded juror are not of the same race.

. In Johnson, the Court explained that it "did not intend [Batson's ] first step to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination." 545 U.S. at 170, 125 S.Ct. 2410. To the contrary, "a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Id. While Johnson post-dates the decisions in Abu-Jamal’s case, it is relevant in pointing out that the low threshold for making a prima facie case was clear and has not changed since Batson. See Aspen v. Bissonnette, 480 F.3d 571, 574 n. 2 (1st Cir.2007) (“Supreme Court opinions issued after the state court decision in question are relevant to the AEDPA analysis to the extent that they restate the clearly established law from earlier Supreme Court opinions.”).

. In this context, were we to summarize Batson in layperson's terms, a defendant needs to raise, based on whatever evidence exists, a reasonable possibility that the prosecutor intended to exclude from the jury but one person because of race. If so, the prosecutor can counter by presenting race-neutral reason(s) for excluding the person(s) identified. That done, a Court must evaluate the evidence and determine whether purposeful discrimination did occur.

. As an example of how this plays out, in Riley we made special mention that the crime gave rise to a capital case: “We cannot avoid noting that Batson was not a death penalty case. This is. If the State failed to accord Riley his constitutional right to a jury selected on a race-neutral basis, we must not shirk to so hold.” 277 E.3d at 287. The Supreme Court has repeatedly emphasized the need for heightened safeguards in capital cases because "death is different” in harshness and finality from any other punishment. See, e.g., Ring v. Arizona, 536 U.S. 584, 614, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Breyer, J., concurring) ("[The] Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty.”); Furman v. Georgia, 408 U.S. 238, 286, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) ("Death is a unique punishment .... ”); id. at 289, 92 S.Ct. 2726 (“Death ... is in a class by itself.”).

. The fact that a prosecutor does not use all of his strikes against blacks or that the actual jury picked has some black members (as here, where there were two black jurors in the end) does not undermine the prima facie case. See Brinson v. Vaughn, 398 F.3d 225, 233 (3d Cir.2005) ("[A] prosecutor may vio*316late Batson even if the prosecutor passes up the opportunity to strike some African American jurors.... Thus, a prosecutor’s decision to refrain from discrimination against some African American jurors does not cure discrimination against others.”); Holloway, 355 F.3d at 720 ("[A] prosecutor who intentionally discriminates against a prospective juror on the basis of race can find no refuge in having accepted others [sic] venirepersons of that race for the jury.”); id. at 728-29 ("The final composition of the jury ... offers no reliable indication of whether the prosecutor intentionally discriminated in excluding a member of the defendant’s race.... A defendant can make a prima facie case of discrimination without reference to the jury's racial makeup.”) (citation omitted); see also Simmons, 44 F.3d at 1167-68; Clemons, 843 F.2d at 747.

Moreover, the defense’s striking putative black jurors is not a reason to defeat a Batson claim. Brinson, 398 F.3d at 234 ("Suppose that the defense dismisses a particular African American juror for a permissible non-racial ground and that the prosecution then strikes other African American jurors based on their race. The legitimate defense strike would not open the door for illegitimate prosecution strikes.”).

. In Miller-El, the Supreme Court had available both the strike rate and the racial composition of the venire, which allowed it to calculate the exclusion rate. Thus, the Court could determine that the prosecution used 10 of its 14 strikes (a 71.43% strike rate) to strike 91% of the eligible black venire pool. 545 U.S. at 240-41, 125 S.Ct. 2317. Here, we do not have information about the racial composition of the total venire pool, but we have a similarly striking strike rate.

. My colleagues correctly assert that Abu-Jamal had the burden of establishing his prima facie case. They note — as did the Court of Common Pleas on PCRA review and the District Court — that Abu-Jamal had the opportunity at a 1995 PCRA hearing to take testimony from the trial prosecutor, Joseph McGill, but chose not to do so. Maj. Op. 292; PCRA Op., 1995 WL 1315980, at *21 n. 8; Abu-Jamal, 2001 WL 1609690, at * 106. My colleagues contend that Abu-Jamal's decision not to elicit McGill's testimony is “noteworthy," and they intimate that such testimony would have shed light on the strike and exclusion rates. Maj. Op. 292 & n. 19. However, McGill’s testimony goes to whether he had race-neutral reasons at Batson step two that could explain an otherwise prima face claim at Bat-son step one (assuming that Abu-Jamal established one). Abu-Jamal's failure to question the prosecutor should not, and cannot reasonably, be taken into consideration to defeat a prima facie claim. The cart (step two) cannot come ahead of the horse (step one).

. My colleagues assert that Holloway is distinguishable because the Court did not apply AEDPA's deferential standard of review, finding instead that the pre-AEDPA standard of de novo review was appropriate. Maj. Op. 292 n. 21. However, our Court “note[d] that relief would be warranted even if our analysis were confined by the requirements of AEDPA, as the Pennsylvania Supreme Court's PCRA decision was 'contrary to' and an 'unreasonable application of' the Batson standard.” Holloway, 355 F.3d at 729.

.In Holloway, we specifically rejected the requirement that a petitioner develop a complete record of the jury venire when we rejected Pennsylvania's so-called Spence rule. In Commonwealth v. Spence, the Pennsylvania Supreme Court affirmed the denial of a capital defendant’s Batson challenge on the ground that he failed to make an adequate record to permit meaningful review of the trial court's failure to find a prima facie case. 627 A.2d 1176, 1182-83 (1993) (noting that the defendant has not "specifically identified] the race of all the veniremen who had been removed by the prosecution, the race of the jurors who served, or the race of jurors acceptable to the Commonwealth who had been stricken by the defense"). In Holloway, we deemed the Spence rule inconsistent with Bat-son's burden-shifting framework:

Notably absent from the Batson discussion of the prima facie case is any call for trial judges to seek the type of statistical accounting required by the Spence rule nor do we see how such an accounting fits within Batson's first step. A trial judge undoubtedly might find in a given case that a full accounting regarding the race of the venire and the jurors struck would be helpful at the third stage of the Batson analysis, after it has heard the prosecutor’s explanation for the strikes and must “determine if the defendant has established purposeful discrimination.” But requiring the presentation of such a record simply to move past the first stage in the Batson analysis places an undue burden upon the defendant.

355 F.3d at 728 (citation omitted).

. I say "implicitly” because we read the Pennsylvania Supreme Court’s opinion as conceding that the petitioner had satisfied his prima facie burden under Batson's first step. Hardcastle, 368 F.3d at 256. However, we independently concluded that this conclusion was "appropriate” "[i]n view of the fact that twelve of the prosecutor's peremptory strikes were exercised against African-American members of the venire.” Id.

. When our Court considered Hardcastle, we knew that "the prosecutor used her peremptory strikes, of which she had a total of twenty, to remove twelve of the fourteen African-American members of the venire.” 368 F.3d at 251. On remand to the District Court, the record was clarified that in fact the prosecutor only used fifteen of the available twenty peremptory strikes — twelve to remove black potential jurors, one to remove a Hispanic potential juror, and two to remove white potential jurors. See Hardcastle v. Horn, 521 F.Supp.2d 388, 392 (E.D.Pa.2007). This new information does not, of course, undermine our Court's conclusion that when a prosecutor uses twelve of an available twenty peremptory challenges to remove black potential jurors, it is appropriate to find that the petitioner has met his prima facie burden.

. In Simmons, we had no record of the total venire, yet we nevertheless found that the defendant had established a prima facie case based on "[t]he combination of Simmons’ race, the prosecution's exclusion of at least one potential African American juror, and the circumstances surrounding the crime,” which involved "the murder and robbery of an elderly [C]aucasian physician by a young African American man.” 44 F.3d at 1168.