Tolbert

We must decide the standard by which we review a trial court’s determination of whether there was unconstitutional prose-cutorial discrimination in exercising a peremptory challenge of a juror in a criminal case.

I

California state prisoner Darryl Tolbert appeals the district court’s denial of his habeas petition challenging his California state court conviction for first-degree robbery. Tolbert contends his conviction should be set aside because the prosecution impermissibly used a peremptory challenge to strike a black man from the petit jury in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). At trial, defense counsel objected to the prosecution’s peremptory challenge of a juror under People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978), the California equivalent of Batson . The state trial court judge denied the defense motion, finding that Tolbert had failed to make a prima facie showing of discrimination. Tolbert’s conviction was affirmed in the state appellate court and his petition for review was denied by the state supreme court.

Tolbert then filed a petition for writ of habeas corpus in federal district court,…

with whom Circuit Judges PREGERSON and HAWKINS join, dissenting:

This case involves an important constitutional right — freedom from discrimination in jury selection. Because Supreme Court and circuit precedent support de novo review of the prima facie prong of a challenge to secure that right, I respectfully dissent.

Juries have long been a cornerstone of our democratic system. See Powers v. Ohio, 499 U.S. 400, 406-07 , 111 S.Ct. 1364 , 118 L.Ed.2d 411 (1991); Strauder v. West Virginia, 100 U.S. 303, 308 , 25 L.Ed. 664 (1879). Aside from voting, jury service affords “ordinary citizens” the “most significant opportunity to participate in the democratic process.” Powers, 499 U.S. at 407 , 111 S.Ct. 1364 . Invidious discrimination in the selection of jurors denies citizens this important role, “ ‘casts doubt on the integrity of the judicial process’ ..., and places the fairness of a criminal proceeding in doubt.” Id. at 411 , 111 S.Ct. 1364 (citation omitted). As Batson teaches, the Constitution “forbid[s] discrimination on account of race in selection of the petit jury” “because it denies [a defendant] the protection that a trial by jury is intended to secure.” Batson v.…