FAIRCHILD, Circuit Judge.
Petitioner-appellee Orlando Rosa (“Rosa”) was convicted of murder and attempted murder in Illinois state court following a jury trial. Rosa challenges the murder conviction, contending that the instructions given his jury violated his federal due process rights. Rosa also asserts that the prosecutor improperly excluded Blacks from his jury as forbidden by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and extended by Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Howard Peters, the Director of the Illinois Department of Corrections, appeals from a judgment of the district court granting Rosa’s petition for a writ of habeas corpus.1 We vacate the judgment, and remand for further proceedings on the Batson grounds only.
I. BACKGROUND
A. Facts
Rene Aguinaga (“Rene”) testified that on the evening of August 9, 1986, he was in his backyard with his brother Jamie2 and Isido-ro Perez (“Perez”) drinking beer. Around 12:45 a.m., there was shouting from the alley behind their backyard. From one side, Rene heard “Spanish Gangster Disciple Nation” and from the other, “Latin King, Latin King love,” both phrases referring to street gangs. The Spanish Gangster Disciples and Latin Kings are rival gangs. The Aguinaga brothers and Perez were Latin Kings.
Rene saw people yelling “Latin Kings” run down the alley, but did not recognize any of them. Rene, followed by Jamie and Perez, walked into the alley to see what was happening; they went to the alley’s south end and beyond. They then turned around to return to the Aguinaga house because it appeared that everything was over. When they reached the mouth of the alley, Rene stopped to use a washroom, and Jamie and Perez continued to walk. After Rene finished and returned to the alley, he saw that as Jamie and Perez were about two lots in from the mouth of the alley, three men came out of a yard yelling “Gangster Disciples.” They were facing Jamie and Perez, about fifteen feet away. Rene then heard yelling (“G.D.” for “Gangster Disciples”) and heard two shots. Jamie ran to Rene and said he was “hit.” The two ran to a friend’s house, and called an ambulance for Jamie. Rene did not have a weapon, and saw none on Jamie or Perez.
Jamie Aguinaga testified that he did not recognize the people who ran by in the alley, and did not know if they were gang members. When he and Perez were returning to the backyard, three men came out from a yard about fifteen feet in front of them. Jamie had seen them before, and knew one as “Puerto Rican Roger” (Roger Gonzalez).3 The three were yelling. When Jamie saw a gun in Gonzalez’s hand, he turned away, and Gonzalez shot; Jamie felt pain in his left thigh. He then started running; he turned [628]*628back to look, and saw Rosa had a gun.4 As he continued to run, he heard gunshots.
Arthur Rodriguez (“Arthur”), a member of the Spanish Gangster Disciples, testified that on the evening of August 9, 1985, he went with seven or eight friends, including Rosa, to Hammond, Indiana to buy beer. After buying beer and returning to the car, two cars filled with Latin Kings drove up. Because they were outnumbered, the Spanish Gangster Disciples ran. After returning to Chicago, fifteen to twenty gang members took a van to the neighborhood where the Aguinaga brothers lived, which was known to be a Latin Kings area.
The men got out of the van, and as they were going down the alley behind the Agui-naga home, a big group came out of one of the yards. Arthur and his friends began to back up. The group was yelling “D/K” for “Disciple Killers.” Arthur knew they were Latin Kings. Arthur turned around and ran; a brick was thrown, almost hitting him. Arthur ran to the van, which drove off. Arthur did not notice if Rosa, Gonzalez or Pedro Rodriguez got back into the van.
Another Spanish Gangster Disciple testified that Rosa, Gonzalez and Pedro Rodriguez were in the van that went to the Latin Kings area. Rosa said he had a gun. As the van emptied, Rosa, Gonzalez and Rodriguez split from the group. The rest of the group was walking into the alley when the Latin Kings came out, and the Spanish Gangster Disciples ran.
Juan Garcia, a Chicago Police Officer, arrived on the scene at about 1:00 a.m., and found Perez face down in a backyard off the alley. Perez had been shot in the lower left back. Garcia asked Perez who had shot him, and he replied, “Puerto Rican Roger.” Perez died later as a result of the gunshot wound. When Garcia asked Jamie at the hospital who had shot him, Jamie said “Puer-to Rican Roger.”
Rosa was arrested the next night. After informing Rosa of his Miranda rights, Assistant State’s Attorney James Andreou (“An-dreou”) interviewed Rosa at about 1:30 a.m. on August 12. Detective George Basile of the Chicago Police Department was present. Andreou took down a written summary of his discussion with Rosa, which statement Rosa reviewed and signed. The statement reads:
At about 1:00 a.m. on 10 August 1985 he was with Pedro Rodriguez and Roger Gonzalez in the alley behind Muskegon Avenue south of 89th Street. They were walking south. As they approached 90th Street they saw a group of guys coming north into the alley. Orlando Rosa heard someone shout “Get them” and heard gunshots. Then Orlando started shooting and Roger was shooting also. The guys who had been coming north turned around and began to run out of the alley. One of them fell to the ground. Orlando Rosa and his two friends Rodriguez and Gonzalez chased after the others but they got away. Later that morning Orlando Rosa talked with his girlfriend Patricia Marcardo and told her he thought he got one of them because he heard him scream and run off. He also said the same thing to Theodore Gonzalez and said that he had the back-up gun. Rosa, Pedro Rodriguez and Roger Gonzalez went to a bar named “Ritchie[’]s” at 88th and Houston. There was a large group of people there and Orlando Rosa and Roger Rodriguez each said that they thought they had gotten one of them. While Orland[o] Rosa was at “Ritchie’s” he got into a fight with a guy named Robert who hit him in the head with a brick. At the time of the fight Orlando Rosa had his gun on him but after he was hit on the head he was knocked unconscious and when he woke up at the hospital his gun was gone.
Tr. at 454-455. Andreou and Detective Ba-sile testified that during the conversation with Rosa preceding the statement, he told them that he and his friends were out to get revenge for the Hammond incident when they went to the Latin Kings area. After signing the written statement, Rosa remarked that “he knew we [the police] had his [629]*629girlfriend and she wasn’t going to lie for him and he wanted to tell the truth and get this over with.” Id. at 440.
23. Jury Instructions
Rosa’s jury was given the then current Illinois Pattern Jury Instructions on murder and voluntary manslaughter based on an unreasonable belief of justification.5 Ill. Pattern Jury Instructions, Criminal IPI, No. 7.02 (“Issues in Murder”) and No. 7.06 (“Issues in Voluntary Manslaughter — Intentional — Belief of Justification”) (2d ed. 1981). Rosa’s jury was also instructed on attempted murder and self-defense.6
The murder instruction listed the elements of murder and told the jury that the State must prove them beyond a reasonable doubt. The voluntary manslaughter instruction listed the elements of voluntary manslaughter and told the jury that the State must prove them beyond a reasonable doubt. The elements of voluntary manslaughter include all the elements of murder (except for murder while committing an offense), and also include the element (in Rosa’s case) that defendant acted under an unreasonable belief that circumstances existed which would have justified the killing (sometimes referred to as “mitigating” because, in a sense, it is a defense to murder).7 The jury was not told that it could not convict of murder unless the State disproved the mitigating element beyond a reasonable doubt.
These instructions are the same as those considered in People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988), and Falconer v. Lane, 905 F.2d 1129, 1136 (7th Cir.1990), except that in those cases the jury was also instructed on voluntary manslaughter based on serious provocation; that instruction placed the burden on the State to prove that the defendant acted under a sudden and intense passion resulting from serious provocation by another.
In Reddick, the Illinois Supreme Court held that when these murder and voluntary manslaughter instructions are given without warning the jury that it could not convict of murder unless the State disproved the mitigating elements, they “erroneously state the burdens of proof on the issues of whether the defendants acted under either intense passions or unreasonable beliefs that their actions were justified.” 122 Ill.Dec. at 5, 526 N.E.2d at 145. “These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating mental state is proved, it will have been proved by the defendant, not the People.” Id. The court concluded that “grave error” had occurred. Id. at 7, 526 N.E.2d at 147.8
Subsequently, this court held that when the same instructions are given, they violate federal due process because a jury may have been left with the false impression that it could convict of murder even if there was a mitigating mental state. Falconer, 905 F.2d at 1136; see also Verdin v. O’Leary, 972 F.2d 1467, 1470 (7th Cir.1992); Flowers v. Ill. Dep’t of Corrections, 962 F.2d 703, 705 (7th [630]*630Cir.1992), vacated on other grounds, — U.S. —, 113 S.Ct. 2954, 125 L.Ed.2d 656 (1993), on remand, 5 F.3d 1021 (7th Cir.1992); Taylor v. Gilmore, 954 F.2d 441, 450 (7th Cir.1992), rev’d on other grounds, — U.S. —, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993), on remand, 4 F.3d 997 (7th Cir.1993) (Table); United States ex rel. Fleming v. Huch, 924 F.2d 679, 682 (7th Cir.1991); Rose v. Lane, 910 F.2d 400, 402 (7th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 515, 112 L.Ed.2d 526 (1990).
C. Procedural History
The jury convicted Rosa of the murder of Isidoro Perez and attempted murder of Jamie Aguinaga. The Illinois Appellate Court found that while the instructions were error under Reddick, the error was harmless because “[t]he evidence does not indicate that defendant’s life was in danger or that he acted in self-defense.” People v. Rosa, 206 Ill.App.3d 1074, 151 Ill.Dec. 950, 956, 565 N.E.2d 221, 227 (1990). It also ruled, with respect to the Batson issue, that Rosa had not met his burden, imposed by state law, of making an adequate record of the racial composition of the venire and seated jurors. The Illinois Supreme Court denied Rosa’s petition for leave to appeal, and the United States Supreme Court denied his petition for certio-rari.
Subsequently, Rosa filed a petition for a writ of habeas corpus in federal district court. The district court granted Rosa’s petition on the instructional error, concluding that the instructions “ ‘so infected the trial as to violate due process.’” Aug. 26, 1992 Mem. and Order at 12. The district court also granted Rosa’s petition with respect to the Batson issue. The State now appeals.
II. DISCUSSION
A Harmless Error
Rosa would like us to read Falconer broadly, as holding that when these murder and voluntary manslaughter instructions are given without alerting the jury to the need to determine whether the mitigating circumstance of an unreasonable belief of justification was present, and if present not to convict of murder, and the jury convicts of murder, there is always a denial of federal due process,9 and never harmless error, no matter how slight the evidence of an unreasonable belief of justification.10
Several considerations militate against so broad a reading. First, the court in Falconer spoke in terms of a possibility that a jury would improperly convict of murder, and suggested that there was substantial evidence that the defendant, who attempted to prove that she killed in self-defense, did have a mitigating mental state:
The central point is that the jury might have decided to convict the petitioner of murder because the State proved that she intentionally killed another without a reasonable belief that she acted in self-defense — despite clear proof that the petitioner was provoked to murderous passion by the victim or that the petitioner held an unreasonable belief that she was justified in killing the victim.
Falconer, 905 F.2d at 1136 (emphasis added).
Additionally, even though in several cases we have noted the “inherently prejudicial” nature of the instructions,11 all subsequent [631]*631decisions of this court which have found Falconer-type denials of due process have considered whether the error was harmless and have evaluated the evidence in order to determine that it was not. See Flowers v. Ill. Dep’t of Corrections, 962 F.2d at 705 (“Our review of the record confirms the state trial judge’s apparent belief, given that he tendered a voluntary manslaughter instruction to the jury, that the evidence presented at trial could support either a voluntary manslaughter verdict or a murder verdict. Consequently, we conclude that the error at Flowers’ trial was not harmless beyond a reasonable doubt ...,” id. at 706); Taylor v. Gilmore, 954 F.2d at 450 (considering “whether the erroneous jury instructions ... were harmless beyond a reasonable doubt,” id. at 454) (“Our review of the record confirms the trial judge’s belief [“that there was enough evidence in the record to support mitigation to manslaughter”] ...,” id.) (noting that “[h]ad there been insufficient evidence in that regard, the judge would not have been obligated to [give the manslaughter instruction] ...,” id.); United States ex rel. Fleming v. Huch, 924 F.2d 679 (“A closer question than whether the jury instructions violated due process is whether that constitutional violation was harmless beyond a reasonable doubt,” id. at 683) (concluding that because there was “substantial and uncontro-verted” evidence of battered wife syndrome, which was basis for self-defense theory, the instructional error was not harmless, id.); Rose v. Lane, 910 F.2d at 402 (“we must decide ... whether the trial court’s constitutional error was harmless,” id. at 403) (concluding that because there was evidence that the defendant believed he was acting in self-defense, a jury might not have convicted him of murder if properly instructed, id.). Thus, we have interpreted Falconer as permitting consideration of whether Falconer-type errors were harmless in light of the evidence before the jury.
Finally, the Supreme Court has decided that “the Kotteakos harmless-error standard applies in determining whether ha-beas relief must be granted because of constitutional error of the trial type.” Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993).12 There must be more than “a ‘ “reasonable possibility” ’ that trial error contributed to the verdict”; habeas petitioners are entitled to ha-beas relief based on trial error only if the error resulted in “actual prejudice.” Id. at -, 1721-1722. The question is whether the error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at -, 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).
We have Rosa’s statement, in which he explains that as he came upon Jamie and Perez, he heard “get them” and gunshots. Rosa argues that the jury could infer that he thought Perez, Jamie and Rene were part of the threatening group and that the “Disciple Killers” were shooting at them. An inference that Rosa believed that Perez presented a danger to his life seems at least implausible.
There also was testimony that the Spanish Gangster Disciples were looking for revenge for the Hammond incident. There was testimony that Jamie and Perez were merely walking in the alley, with no evidence that they were armed or advancing in a threatening manner, when the three Spanish Gang[632]*632ster Disciples came out yelling. After shooting, the three chased Rene and Jamie.
There are indeed some questions of credibility in deciding the correct version of the facts. We do note that the jury must have found Rosa’s version incredible in large part because it rejected the claim that he acted in self-defense.13 Insofar as possible the habe-as or appellate court shuns resolving credibility and weighing the evidence. Nevertheless, the Brecht-Kotteakos test for harmless error requires the habeas court to evaluate to some extent the probability of the outcome if the case were tried under proper instructions.
The constitutional error perceived in Falconer was that “the jury may have been left with the false impression that it could convict the petitioner of murder even if she possessed one of the mitigating states of mind described in the voluntary manslaughter instruction” and that “[j]urors are therefore encouraged by the structure of the instructions to answer ... [the requirements of the murder instruction] first and then move on only if those requirements cannot be met.” Falconer, 905 F.2d at 1136,
The Falconer error is present here. We conclude, however, that the error did not have a “substantial and injurious effect or influence in determining the jury’s verdict” and therefore was harmless.14
If in fact the jury rejected any claim that Rosa had even an unreasonable belief that the killing was necessary in self-defense, the error had no effect on the verdict. Assuming, however, that the instruction caused the jury to believe that it could convict of murder even if Rosa had such belief, or without considering whether he did, our review of the trial transcript satisfies us that the jury was not and would not have been persuaded that Rosa had such belief.
B. Batson
During jury selection, twenty-three potential jurors were questioned. The prosecution exercised four peremptory challenges, three of which were used against Blacks. The defense objected and moved for a mistrial, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court denied the motion, apparently on the ground that Rosa is a Latino and not black, and therefore could not complain of the exclusion of black jurors. The record does not show the racial composition of the rest of the twenty-three venire members or the twelve seated jurors.
In Batson, the Supreme Court held that a defendant in a criminal case could show that peremptory challenges of prospective jurors of his own race were unconstitutional discrimination. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Supreme Court ruled that a defendant may raise a Batson challenge even if the defendant and the excluded jurors are not of the same race. Because Rosa’s conviction was not yet final when the Supreme Court decided Powers, he may benefit from that ruling on collateral review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
The State argues that federal courts do not have jurisdiction to hear Rosa’s Bat-son claim because the Illinois Appellate Court decided the issue on an independent and adequate state law ground, citing Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The State contends that Rosa was required under Illinois law to make a record of the racial makeup of prospective and impaneled jurors in order to preserve a claim of discrimination for appellate review.
Although under the law at that time the trial court was correct in deciding that Rosa could not make out a prima facie ease because he and the excluded jurors were not of the same race,15 the Illinois Appellate Court [633]*633declined to consider his claim because he had failed to make a record of the race of the jurors and members of the venire other than the venire members who had been struck from the jury. The court did not discuss the fact that Rosa was precluded from making a Batson claim because he is not black.
The Illinois Appellate Court relied on a state procedural bar in determining that Rosa cotdd not raise a Batson claim. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). To be “adequate,” the state rule must be “firmly established and regularly followed.” James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984); Lilly v. Gilmore, 988 F.2d 783, 785 (7th Cir.), cert. denied, — U.S. —, 114 S.Ct. 154, 126 L.Ed.2d 116 (1993) (“a rule applied infrequently, unexpectedly, or freakishly may not constitute an independent and adequate state ground”) (citing Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990)).
Illinois appellate courts do not invariably reject a discrimination claim because a defendant failed to make a record of racial composition. See e.g., People v. Hughes, 257 Ill.App.3d 633, 195 Ill.Dec. 566, 628 N.E.2d 1030 (1993) (black defendant) (noting that failure to make a record of racial composition does not necessarily preclude appellate review, and remanding for Batson hearing); People v. Ramirez, 230 Ill.App.3d 231, 171 Ill.Dec. 884, 595 N.E.2d 12 (1992) (non-black defendant’s trial was pre-Powers, but direct appeal was pending at time of Powers decision) (remanding for Batson hearing to discern prosecution’s reasons for peremptory strikes although no record of racial composition of venire or jury); People v. Green, 228 Ill.App.3d 849, 171 Ill.Dec. 24, 593 N.E.2d 844 (1992) (black defendant) (remanding for Bat-son hearing although not clear if any Blacks were on jury); People v. Gaston, 227 Ill.App.3d 486, 169 Ill.Dec. 644, 592 N.E.2d 131 (1992) (black defendant) (remanding for Bat-son hearing although no record of racial composition of entire venire); People v. Nicholson, 218 Ill.App.3d 273, 160 Ill.Dec. 742, 577 N.E.2d 1313 (1991) (black defendant) (remanding for Batson hearing although race of three jurors not known); People v. Lockhart, 201 Ill.App.3d 700, 146 Ill.Dec. 1011, 558 N.E.2d 1345 (1990) (black defendant) (remanding for Batson hearing although no record of racial composition of entire venire). Additionally, the Illinois Supreme Court had, in considering claims of discrimination by black defendants in jury selection at trials prior to Batson, remanded cases on appeal after Batson, contrary to the State’s claim of waiver by failure to establish the number of Blacks on the venire. People v. Andrews, 132 Ill.2d 451, 139 Ill.Dec. 469, 548 N.E.2d 1025 (1989).
Additionally, in another case where a non-black defendant failed to make a record of racial composition before Powers was decided, the Illinois courts remanded for a hearing to determine whether the prosecution used peremptory challenges for discriminatory purposes. People v. Pecor, 213 Ill.App.3d 472, 157 Ill.Dec. 600, 572 N.E.2d 1064 (1991), aff'd, People v. Pecor, 153 Ill.2d 109, 180 Ill.Dec. 50, 606 N.E.2d 1127 (1992). See also People v. Ramirez, 230 Ill.App.3d 231, 171 Ill.Dec. 884, 595 N.E.2d 12 (1992).
In Pecor, the defendant’s Batson challenge was denied by the trial court because he was white. He made no record of the racial composition of the venire or jury. Powers was decided while the defendant Pecor’s appeal was pending in the Illinois AppeUate Court, which remanded for a Batson hearing. The Illinois Supreme Court affirmed, noting that “[a]ny attempt to make a record here, or persist in his claim where the law was clearly to the contrary, would have been, at the time, a waste of judicial resources. We do not believe a defendant should have to anticipate [634]*634an eventual change in the law in order to preserve an issue for review.” Pecor, 180 Ill.Dec. at 56, 606 N.E.2d at 1133.
The State would have us distinguish Pecor because here, the record is not clear that the trial judge denied Rosa’s Batson challenge because Rosa is not black. After reviewing the transcript, we do not find the State’s argument persuasive. While the trial judge did not explicitly state his reasons, the only challenge by the prosecution was that Rosa could not establish a prima facie ease because he is not black.16
We find that the reason articulated by the Illinois Appellate Court for denying Rosa’s Batson claim is not an “adequate” state ground. Illinois appellate courts do not uniformly bar Batson claims when a defendant has failed to make a record of racial .composition. Also, the Illinois Supreme Court’s decision in Pecor demonstrates that the record-preservation rule is not “adequate” in the limited situation where a non-black defendant like Rosa could not raise a Batson claim at the time of his trial (and here, could not raise the claim when the Illinois Appellate Court rendered its decision), but subsequently is entitled to raise a Batson claim because his appeal was pending on direct review when Powers was decided.
Under Batson, a defendant must first make a prima facie showing that the prosecutor used his peremptory challenges on the basis of race. A prima facie showing is made “ ‘by presenting facts and relevant circumstances that raise an inference that the government used the peremptory challenges in order to exclude venire members because of their race.’ ” United States v. Mojica, 984 F.2d 1426, 1449 (7th Cir.) (citation omitted), cert. denied, — U.S. —, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993). If a defendant makes a prima facie showing, the burden shifts to the prosecutor to give a race-neutral reason for his use of peremptory challenges. Finally, the trial court must determine whether the defendant has carried his burden of showing purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).
The trial court did not determine that Rosa failed to make a prima facie showing that the prosecution used its peremptory challenges for racial reasons, but apparently ruled only that a prima facie case could not be established because of Rosa’s race. Rosa’s attorney made a timely objection, but was not allowed to pursue his objection and demand a race-neutral explanation from the prosecution at that time. Because Powers applies to Rosa, he is entitled to a ruling on whether he can satisfy the Batson elements and ultimately prove that the prosecution used purposeful discrimination when it exercised its peremptory challenges.17 See Dunham v. Frank’s Nursery & Crafts, Inc., 919 F.2d 1281 (7th Cir.1990) (ruling that Batson [635]*635applies to civil eases and remanding for determination of whether a prima facie case of discrimination could be shown), cert. denied, 501 U.S. 1205, 111 S.Ct. 2797, 115 L.Ed.2d 970 (1991).
The district court ordered Rosa released unless retried, but had found both that the murder-manslaughter instructions denied due process and that the prosecution’s peremptory challenges may have been based on race. As discussed above, we conclude that Rosa is not entitled to release on account of the murder-manslaughter instructions. Logically the next step with respect to the Bat-son point would be a hearing in district court to determine whether the peremptory challenges were based on race. However, given the passage of time (more than six years) since Rosa’s trial, a hearing to determine whether the jurors were excluded because of race may well be unsatisfactory. The district court should decide if a hearing would be productive; if so, the district court should conduct a Batson hearing. If Rosa carries his ultimate burden of proving that the prosecution used purposeful racial discrimination when it exercised its peremptory challenges, then the district court should order release unless retried within 120 days. If Rosa does not carry his burden, then relief should be denied. If the district court decides a hearing could not be satisfactory for determining the issue, the district court should order Rosa’s release unless retried within 120 days.18
Accordingly, the judgment of the district court is VACATED and the cause Remanded for further proceedings on the Batson grounds in accordance with this opinion.