dissenting in part, concurring in part:1
Upon my review of the record, the issue of improper discrimination on the basis of religious affiliation in the exercise of peremptory challenges was raised with the trial court with sufficient particularity and timeliness, and the trial court rejected it on the merits. Thus, it is properly before the court for full, not plain error, review. I would hold that the equal protection doctrine prohibits peremptory strikes used to discriminate on the basis of religious affiliation, and that where there is a prima facie case that religious affiliation is the reason for a strike, the trial court must, at a minimum, conduct voir dire to determine whether the prospective juror’s religious beliefs, rather than religious affiliation, disqualify that person from serving on the particular jury. I conclude that in this case a prima facie case was made that the prosecutor exercised a peremptory strike to eliminate a potential juror on the basis of his presumed affiliation with the Nation of Islam. As no voir dire was conducted to inquire into whether he was in fact so affiliated, and, if so, whether his beliefs disqualified him from serving as a juror in the case, the peremptory strike at issue impermissibly discriminated in the jury selection process. This constitutes per se reversible error. See Arizona v. Fulminante, 499 U.S. 279, 306-312, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
The Religion-Based Challenge to the Peremptory Strike was Preserved for Appeal.
As the majority correctly observes, defense counsel’s2 challenges to the prosecutor’s peremptory strikes were initially and primarily focused on counsel’s perception that the prosecutor’s peremptory strikes revealed a systematic effort to exclude young black males from the jury. As voir dire progressed, however, and the prosecu*605tor explained his strikes, defense counsel’s arguments evolved and focused on the challenge based on religious affiliation, and in no uncertain terms objected to the strike of Juror 333 on such basis.
The majority bases its conclusion that only plain error review is necessary on the grounds that defense counsel’s objections were untimely and not sufficiently precise to alert the trial judge to the legal basis for the challenge. I disagree. First, the timing of an objection to a peremptory strike cannot be made before the reason for the strike is revealed. Here, the religious basis for the strike of Juror 333 surfaced well into the process, as the prosecutor was trying to explain that the strike of that juror was not race-based. In making that explanation, the prosecutor for the first time stated that the reason for the strike was that he believed Juror 333 looked like “those people who follow Louis Farrakhan who could not be fair to the Government.” This was immediately followed by defense counsel’s objection to the court that “He [the prosecutor] could have asked him, Your Honor.”3
The trial court then ruled that the prosecutor’s strikes were not race-based, noting, however, that the prosecutor’s race-neutral explanation for striking Juror 333 was not “based on facts, observations and information and responses obtained during the voir dire,” but on the prosecutor’s “gut if you will reaction and he cited particularly the bow tie, the close cropped hair and other issues.” The trial court concluded that “[considering the fact that all other responses have been adequately made by [the prosecutor], I have to allow him that 1 on his gut feeling.” 4
After completing the last two rounds of peremptory challenges and discussing certain other new matters brought up by the prospective jurors on the panel, the trial judge, without objection, released the remaining venire and the proceedings broke for a much-delayed lunch. Immediately after the lunch break, the trial judge returned to the issue of Batson challenges with respect to the peremptory strike of Juror 333. At that point, defense counsel clearly made alternative arguments for the challenge of the prosecutor’s peremptory strike of Juror 333: 1) the prosecutor’s explanation for striking Juror 333 on the basis of his appearance (bow tie, closely cropped hair and white shirt) was pretex-tual because Juror 1, who had not been struck, also had close cropped hair and wore a bow tie, and 2) the race-neutral reason given by the prosecutor for striking Juror 333, that he was a Muslim, was itself *606improper.5 Other defense counsel joined the objection, emphasizing the impermissible religious basis for the strike6 and, at one point, further suggesting that, with respect to Islam, discrimination on the basis of religion also amounted to race discrimination.7 Based on this record, I con-*607elude that defense counsel objected that the strike was impermissible as soon as the prosecutor’s attempt to give a race-neutral explanation for his strike revealed a religious basis. As these objections were made before the jury was sworn, they were timely. See Tursio v. United States, 634 A.2d 1205, 1209 (D.C.1993).
Second, defense counsel’s objections were of such nature and specificity as to put the issue squarely before the trial court. Although, at the time of trial in this case, neither the Supreme Court nor this court had extended Batson beyond race-based challenges, we had given strong indications supporting that proposition. In a case in which the defendant had requested that all Catholics be stricken from the jury on the ground that no Catholic could fairly judge the credibility of the priests who were the victims of the crime, we held that
[a] prospective juror who is otherwise competent to serve on a jury may not be disqualified merely because of religious belief or status. The mere potentiality for bias based on religious affiliation cannot justify the elimination of a prospective juror. Only the demonstration of an actual bias may provide such a justification.
Coleman v. United States, 379 A.2d 951, 953 (D.C.1977) (citation omitted). We also adopted the same argument that appellant makes in this case, that the position that all members of a religion should be excluded is “ ‘suspect’ under the ‘equal protection’ provisions of the Constitution.” Id. at 954 (citing Ristaino v. Ross, 424 U.S. 589, 596 n. 8, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976)). Defense counsel in this case, rather presciently, used the term Batson “generically,” much as we do today, as encompassing various types of impermissible discrimination in the jury selection process, not as referring solely to race.8 No doubt the majority is correct that defense counsel did not present the trial court with the “finely honed” argument presented on appeal. That is true in most cases, as few trial counsel have the luxury of time and reflection, in the heat of an ongoing pretrial proceeding, that is available on appeal. Defense counsel were reacting on the spot to the prosecutor’s unfolding explanations. It would be difficult, however, to miss the intensity of counsel’s objections, which not only castigated the prosecutor, but took the unusual, and perhaps risky, additional step of expressing “shock” at the trial court’s view of the law on the subject of religion-based peremptory strikes. Moreover, the legal basis for counsel’s challenges was broadly presented to the trial court. Counsel’s objections were framed in terms of references to the “Muslim religion or Muslim practice,” “people of the Muslim religion” and “be-longfing] to a certain religious group,” see *608supra note 5, and counsel argued that the strike was “because of their religious views or ... presume[d] ... views,” see supra note 7. Counsel cast their challenges to the religion-based strike in terms of its involving a “suspect” category, a clear indication of the equal protection basis for their claim. See supra note 7. They also made clear that their objections were based in part on the First Amendment. See supra note 5. Further, counsel at several times distinguished between impermissible discrimination based on religious affiliation and religious beliefs that could justify a strike, see supra notes 5, 6, & 7, noting that the proper procedure would be to inquire about the juror’s religious affiliation and, more importantly, his religious beliefs to ascertain whether they are incompatible with jury service.9
Finally, the trial court’s ruling shows that the judge was aware that counsel’s objections were not limited to race. Upon hearing the various defense counsel’s race and religion-based challenges to the prosecutor’s peremptory strikes, the trial court ruled:
With respect to the strikes about which [the prosecutor] was asked to give his explanation, if with 1 exception I indicated that [the prosecutor’s] explanation was appropriate and demonstrated a justifiable reason for the striking of those jurors with his peremptory challenges.
With 1 juror [no. 333], I indicated that the justification given by [the prosecutor] was less than acceptable. However, out of 30 strikes, I am allowing [the prosecutor] to have 1 gut feeling on a strike. Even though the justification was less than acceptable with respect to that one juror, I am permitting it.
The trial court’s clear statement that the prosecutor’s justification for striking Juror 333 was “less than acceptable” must be understood in the context of the race and religion-based challenges made by defense counsel. The trial court definitely ruled that the strike was not race-based.10 Having satisfied the trial judge that there was no racial animus to the peremptory strike, the prosecutor would have had no need for further explanation of the strike unless it was understood that there was another basis for the challenge, different than the one based on race. Therefore, the trial court’s statement that the prosecutor’s ex*609planation was “less than acceptable” must have referred to the challenge that the strike was impermissibly based on religious affiliation. The trial court decided, nonetheless, to let one out of thirty strikes go without further scrutiny “[e]ven though the justification was less than acceptable with respect to that one juror.”11 On this record, therefore, I conclude that the objection to a religion-based peremptory strike was presented to and decided by the trial court, and is reviewable on the merits on appeal.
The Peremptonj Strike Based on Presumed Religious Affiliation and Beliefs is Unconstitutional
The Equal Protection Clause of the Fourteenth Amendment (as well as the equal protection doctrine embodied in the Due Process Clause of the Fifth Amendment) prohibits the state from discriminating on the basis of suspect classifications, such as religious affiliation, which is protected by the First Amendment. See Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 886 n. 3, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Batson and its progeny, the Supreme Court has recognized that the exclusion of a juror based on race, also a suspect classification, offends the equal protection rights of the excluded juror and undermines “public confidence in the fairness of our system of justice.” See Batson, 476 U.S. at 87, 106 S.Ct. 1712. The Supreme Court has extended Batson’s reasoning to exclusion of jurors based on sex, which is accorded “heightened” scrutiny, somewhat less than the scrutiny required for exclusion based on a suspect classification. See J.E.B. v. Alabama, 511 U.S. 127, 134, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). As the Court held in J.E.B.,
Today we reaffirm what, by now, should be axiomatic: Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.
Id. at 130-131, 114 S.Ct. 1419.
The same reasoning applies to exclusion based on religious affiliation. See United States v. Somerstein, 959 F.Supp. 592, 595 (E.D.N.Y.1997) (.Batson applies to religious discrimination but “there must be a determination as to whether the religion of the juror is relevant to the issues of the case ... only if the religion of the jurors is directly relevant to the crimes at issue, can such a [strike] be proper.”); People v. Martin, 64 Cal.App.4th 378, 75 Cal.Rptr.2d 147, 151 (1998) (Batson extends to religious discrimination, but a “peremptory challenge of a juror on the basis of the juror’s relevant personal values is not improper even though those views may be founded in the juror’s religious beliefs.”); Connecticut v. Hodge, 248 Conn. 207, 726 A.2d 531, 550 (1999) (peremptory challenges based on religious affiliation are unconstitutional), cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999); see also North Carolina v. Eason, 336 N.C. 730, 445 S.E.2d 917, 923 (1994) (peremptory strike legitimate when the prosecutor inquired how religious beliefs, not affiliation, might affect ability to follow law); United States v. Stafford, 136 F.3d *6101109, 1114 (7th Cir.1998) (noting the necessity “to distinguish among religious affiliation, a religion’s general tenets, and a specific religious belief”). But see Casarez v. State, 913 S.W.2d 468, 492 (Tex.Crim.App.1995) (refusing to extend Batson to religious affiliation “[b]ecause all members of the group share the same faith by definition, it is not unjust to attribute beliefs characteristic of the faith to all [of them]”); State v. Davis, 504 N.W.2d 767, 771 (Minn.1993) (refusing to extend Batson to religious affiliation “because religious bigotry in the use of the peremptory challenge is not as prevalent, or flagrant, or historically ingrained in the jury selection process as is race”).
As in J.E.B., the record in this case shows that Juror 333 was excluded, not for any substantive reason that disqualified him from the jury, but based entirely on the prosecutor’s and trial court’s assumption that, because of his haircut (cropped) and mode of dress (white shirt and bow tie), the young black man must be a Muslim and a follower of Louis Farrakhan, who, in the words of the prosecutor, “could not be fair to the government.” The prosecutor acknowledged that there was “no indication on the record” of Juror 333’s religious affiliation, much less his beliefs. See supra note 3. Such judgment about a person’s beliefs based on nothing more than supposition drawn from superficial characteristics is the kind of rank discrimination that the Supreme Court said in J.E.B. it is “axiomatic” violates the Constitution’s guarantee of equal protection because it fails the relevant constitutional standard of “whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial.” J.E.B., 511 U.S. at 136, 114 S.Ct. 1419. In the case of “suspect” classifications such as religion, the standard is even higher: the state must show a “compelling interest.” See Employment Div., Dep’t of Human Res. of Oregon, 494 U.S. at 886 n. 3, 110 S.Ct. 1595.
Particularly in this case, where the prosecutor’s explanations for striking Juror 333 slipped and slid between two suspect classifications, race and religion, and where religion-based discrimination based on membership in the Nation of Islam necessarily implied race as well, the trial court should have been particularly alert to the potential for unconstitutional discrimination in jury selection. Cf. J.E.B., 511 U.S. at 145, 114 S.Ct. 1419 (“Failing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.”). At least one of the defendants in this case was not only Black, but also Muslim. See supra note 5; cf. Batson, 476 U.S. at 85-86, 106 S.Ct. 1712 (stating that defendant’s right to equal protection is violated by purposeful racial discrimination in the selection of the venire). The challenges to the prosecutor’s strike were strenuously and timely pressed by defense counsel, making clear that, if left unexplored, the strike could call into question the ensuing trial. Cf. Baxter, 640 A.2d at 717 n. 3 (reiterating “the importance, in cases of this kind, of alerting the judge to the issue as soon as a pattern allegedly emerges, so that a meaningful record can be made.”).
It is always troubling to overturn a conviction that results from a crime as serious as the one at issue here, after a significant investment of judicial, prosecutorial and defense resources. The proper course was to address the issue squarely in the trial court, by questioning the potential juror to establish, first, whether he is a member of *611the presumed religious group, and, if so, whether his beliefs are such that they disqualify him from serving on this particular jury. As this was not done, and a prima facie case has been made that Juror 333 was excluded based on his presumed membership in the Nation of Islam, reversal is required.
. I join the majority’s conclusion that the various claims under Brady, Giglio and Jencks do not require reversal.
. There were six co-defendants in the trial courL, each one separately represented.
. The prosecutor’s and defense counsel’s statements follow:
[Prosecutor] We have a 25 year old still on the panel in seat number 4, Michael Justice, who is Juror Number 333 and he lives in a very prominent neighborhood that I know very well from the Rayful Edmonds situation in the Trinidad area.
But, I also note that given his appearances, the bow tie and the white shirt and the closely cropped hair, that while I have no indication on the record if there is any indication on the record and if there is some mention of his affiliation with those people who follow Louis Farrakhan who could not be fair to the Government.
I would not want to risk putting that kind of prejudice on the jury when the Government has to bring the case.
[Defense counsel] He could have asked him, Your Honor.
. The trial court expressed sympathy for the prosecutor's "gut feeling,” stating ”[t]his Court is personally aware that there have been several jury trials in this Court where there have been 11 to 1 hung Jurors for the very same reason mentioned by [the prosecutor]. As a matter of fact, this Court tried 1 of those cases.”
.Defense counsel stated:
[T]he [paramount] issue is that the Court was concerned about Juror 33 [sic, 333] because [the prosecutor] could not give what I believe that the Court perceived as a proper explanation and accepted [the prosecutor’s] gut reaction.
[The prosecutor] indicated to the Court because the gentleman had short cropped hair and a bow tie, that there is some suggestion that he is a Muslim.
He stated that was his gut reaction and the Court accepted it and I believe that the Court indicated something to the effect of yes, he had close cropped hair and he did have a bow tie and that we had juries— cases before which ended in 11 to 1, basically a hung jury.
Your Honor, Juror Number 1 who is 094 has close cropped hair. He has a bow tie. He had a bow tie on yesterday....
Your Honor, that undercuts [the prosecutor’s] argument. He is saying that he struck the Juror because he is Muslim and this first of all, that's improper. It is improper and I was also shocked when the Court condoned that statement, Your Honor.
What the court is suggesting is that people of the Muslim religion or the Muslim practice cannot be fair and impartial....
I certainly would object to any suggestion that a person who belongs to a certain religious group since the First Amendment and the freedom of expression and the freedom of association, freedom of religion, that here is some suggestion that they cannot be a part of this jwy process.
In addition to that, my client is a practicing Muslim and on numerous occasions during pretrial matters, he has, in fact worfn] his cap....
Your Honor, regrettably, I would ask that the panel be stricken because I think that the explanation that [the prosecutor] gave as to 333 was improper.
... Your Honor, [the prosecutor] simply struck him because he was a young, Black male similar in age to [the appellants] and I rejected that explanation by [the prosecutor] and I don’t think that it's a proper one in light of 094 [the other juror with bow tie and close cropped hair] and also Your Hon- or, regrettably, I have to object to the Court’s comment about that and joining in with [the prosecutor] that there is some suggestion that people of the Muslim religion cannot be fair and impartial.
Accordingly, Your Honor, I would ask that the whole jury be stricken. Your Honor, I was shocked that the Court joined in that comment.
(Emphasis added.)
. Another defense counsel stated:
If [the prosecutor] had some concerns about anybody that was inherent to the teachings of Louis Farrakhan, [the prosecutor] could have de[lved] into that at the time of the voir dire.
I think that striking a person at this point because of a belief that he may be a follower of Louis Farrakhan is reprehensible for the reasons that [the other defense counsel] espoused during his comments to the Court.
BuL if that was a concern, we had a process and [the prosecutor] could have raised the issue then and we could have discussed it and if the court felt inclined to grant [the prosecutor's] request for a strike, it could have been done at that time.
Bringing it up now at the 11th hour as the Court deemed it to be a gut reaction, we think that that does not fall into the context of a gut reaction based on the physical description of Juror No.l.... So I think his argument rings hollow.
. A third defense counsel added:
I would point out to the Court that I have a long history of doing discrimination litigation and I know discrimination when I hear it. When I heard what [the prosecutor] was saying, I heard it. He is saying first of all that an entire segment of the Black population because of their religious views or what he presumes to be their views are not worthy to be jurors in America.
Secondly, he is saying that because he presumes a Black person to be a part of that segment, that he is not worthy to be a juror. Your Honor, I don't think that we have heard this kind of language in a long time or at least in America where we have come to the point where we pretend to that let's *607be "politically correct” as we call it. But, there is not even a pre[t]ense] going on here.
We sit up in this Court and we say hum, that man looks like he belongs to a suspect category without even having established that the suspect category in and of itself be enough to exclude someone from jury duty.
I have never heard anything like that. Your Honor, it should appall anybody who listens to it and I have to join in [other defense counsel’s] comments that I just do not understand how the Court can affirm that way of thinking.
(Emphasis added.)
. As one defense counsel stated:
Your Honor, primarily the Batson issue here is young Black men and the Government is discriminating against race and sex and age all of which are prohibited. There are all types of discrimination that I think Batson would say should not be allowed although Batson dealt with race and I think that there is an issue of race here because of the number of Black people that the Government struck from the jury 19 versus 5 white.
. The majority relies on Baxter v. United States, 640 A.2d 714 (D.C.1994), for the proposition that the trial court must be apprised of the "precise legal argument upon which objections to juror strikes are based.” See ante at 18. Baxter presented a slightly different issue — whether Baxter made the same claims on appeal as he did to the trial court. In Baxter, the court noted that appellant had "substantially revised the position which he took in the trial court ... dropped altogether his claim that race was a factor in the selection of his jury,” and "abandoned his claim that he was denied a jury of his peers’ by the discriminatory exclusion from the jury of ‘young black males.’ ” 640 A.2d at 717. The court noted that, on appeal, "Baxter now contends, instead, that he was denied his constitutional and statutory rights because the prosecutor discriminated in the exercise of his peremptory challenges, both on the basis of gender and on the basis of age.” Id. The court concluded that "[e]xcept insofar as they might be viewed as being subsumed in his ‘jury of his peers’ argument, Baxter’s new contentions, namely, that the Constitution and certain statutes proscribe discrimination based on age or sex in the prosecutor’s exercise of peremptory challenges, were not made to the trial judge.” Id. To say that appellants in this case may not have presented to the trial court as polished an argument as they have on appeal, however, is not the same as saying that they did not challenge the prosecutor’s religion-based explanation for his peremptory strike of Juror 333, which the record shows that they did.
. I join the majority’s analysis of the trial court’s ruling on the race-based challenge.
. If the trial court’s pass on the "less than acceptable” explanation did not refer to the religion-based objection it can only have referred to the race-based objection. In either case, the trial judge may not allow even one impermissible strike. See Little v. United States, 613 A.2d 880, 885 (D.C.1992) (noting that "the exclusion of even one ... member of the venire for racial reasons violates the equal protection clause”).