Tolbert v. Page

182 F.3d 677, 1999 WL 427449

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 1999
• Docket: No. 97-55004
• Status: Published

Opinions

O’SCANNLAIN, Circuit Judge:

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, alleging a violation of his constitutional rights under Batson.3 The district court dismissed his petition and Tolbert timely appealed.

A three-judge panel of this court, to which the appeal was assigned, discovered an irreconcilable conflict in this circuit’s case law regarding the standard of review for rulings on the prosecution’s use of peremptory challenges. We took this case en banc to resolve the conflict.

II

In Swain v. Alabama, 380 U.S. 202, 203-04, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the United States Supreme Court held that the purposeful exclusion of blacks from jury service violates the Equal Protection Clause. The Court sought to accommodate both the prosecutor’s privilege of peremptorily challenging jurors and the newly promulgated constitutional prohibition against exclusion of jurors because of race. See id. at 219-24, 85 S.Ct. 824. Swain required the defendant to present a prima facie case that the peremptory challenge system was being used for a discriminatory purpose. See id. at 224, 85 S.Ct. 824. This requirement was a high hurdle for the defense, because the defendant had to show that the prosecutors had a practice of discriminatory use of peremptory challenges in “case after case.” Id. at 223, 85 S.Ct. 824. In Swain, for example, even though the prosecutor struck six black jurors, the Court held that the evidence failed to show a prima facie case of discrimination. See id. at 224, 85 S.Ct. 824. The Court reasoned that “[t]he record is absolutely silent as to those instances in which the prosecution participated in striking Negroes, except for the indication that the prosecutor struck the Negroes in this case.... There is no evidence, however, of what the prosecution did or did not do on its own account in any cases other than the one at bar.” Id. at 224-25, 85 S.Ct. 824. Thus, absent proof beyond the facts of a defendant’s own case that the prosecutor was responsible for striking black jurors on account of race, a defendant could not maintain a Swain challenge.

In Batson, the Supreme Court sought to alleviate the defendant’s “crippling burden of proof’ under Swain, because the burden had rendered “prosecutors’ peremptory challenges ... largely immune from constitutional scrutiny.” Batson, 476 U.S. at 92-93, 106 S.Ct. 1712. Batson dramatically liberalized Swain’s requirement that a defendant show that the prosecution pursued a practice of discriminatory use of peremptory challenges by reference to other cases. Under Bat-son, “a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id. at 96, 106 S.Ct. 1712.

Batson promulgated a three-step test for evaluating the propriety of a peremptory challenge. First, the movant must make a prima facie showing that the prosecution has engaged in the discriminatory use of a peremptory challenge by demonstrating that the circumstances raise “an inference that the prosecutor used [the challenge] to exclude veniremen from the petit jury on account of their race.”⁴ Id. Second, if the trial court determines a prima facie case has been established, the burden shifts to the prosecution to articulate a race-neutral explanation for challenging the juror in question. See id. at 97, 106 S.Ct. 1712. Third, if the prosecution provides such an explanation, the trial court must then rule whether the movant has carried his or her burden of proving the existence of purposeful discrimination. See id. at 98, 106 S.Ct. 1712.⁵

How we should review a trial court’s decision that an inference of discrimination has or has not been raised at the prima facie step is unsettled. Indeed, we have directly conflicting precedents within our circuit. In United States v. Vasquez-Lopez, 22 F.3d 900, 901 (9th Cir.1994), and Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir.1996), we held that we review for clear error, while in Turner v. Marshall, 63 F.3d 807, 814 n. 4 (9th Cir.1995), we reviewed the trial judge’s prima facie case determination de novo.⁶

Ill

Because it falls “somewhere between a pristine legal standard and a simple historical fact,” whether a prima facie case determination is reviewed de novo or deferentially depends upon what are essentially practical considerations. See Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). This court has noted that, “in each case, the pivotal question is do the concerns of judicial administration favor the district court or do they favor the appellate court.” United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.1984) (en banc); see also Miller, 474 U.S. at 114, 106 S.Ct. 445 (“[I]n those instances ... in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/ law distinction at times has turned on a determination that, as a matter of sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.”); Koirala v. Thai Airways Int'l, Ltd., 126 F.3d 1205, 1210 (9th Cir.1997) (holding that the existence of wilful misconduct under the Warsaw convention is a mixed question of fact and law and, “[a]s such, it may be subject either to clear error or de novo review, depending upon ‘the concerns of judicial administration.’ ” (citation omitted)). While “the concerns of judicial administration will generally favor the appellate court” and de novo review, particularly in cases implicating constitutional rights, McConney, 728 F.2d at 1202, “[tjhere are ... some types of mixed questions that are exceptions to this general predominance,” id. at 1203. The McConney court explained that:

If application of the rule of law to the facts requires an inquiry that is essentially factual-one that is founded on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct-the concerns of judicial administration will favor the district court, and the district court’s determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.

Id. at 1202 (internal quotation marks and citations omitted);⁷ see also United States v. Marbella, 73 F.3d 1508, 1515 (9th Cir.1996) (“ ‘When a mixed question of law and fact is presented, the standard of review turns on whether factual matters or legal matters predominate.’ ” (citation omitted)). Thus, if the Batson prima facie analysis “is essentially a factual inquiry,” it generally will be “better suited for district court examination.” Koirala, 126 F.3d at 1210. This is so even though the Batson inquiry implicates a defendant’s constitutional rights. See Miller, 474 U.S. at 113, 106 S.Ct. 445 (“[A]n issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question.”).

At the Batson prima facie showing step, the concerns of judicial administration tip in favor of the trial court and, therefore, a deferential standard of review prevails. Our conclusion is based on the language of Batson itself, which describes the prima facie analysis as a “factual inquiry,” Batson, 476 U.S. at 95, 106 S.Ct. 1712, and makes clear that the trial court is to be the primary adjudicator of that analysis: “We have confidence that trial judges, experienced in supervising voir dire, ivill be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges create[ ] a prima facie case of discrimination.” Id. at 97, 106 S.Ct. 1712 (emphasis added).

Our holding is also consistent with more recent teachings of the Supreme Court, which counsel in favor of applying a deferential standard of review to certain mixed questions. See Salve Regina College v. Russell, 499 U.S. 225, 233, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Deferential review is appropriate either “when it appears that the district court is ‘better positioned’ than the appellate court to decide the issue in question,” or when “probing appellate scrutiny will not contribute to the clarity of legal doctrine.” Id. (citing Miller, 474 U.S. at 114, 106 S.Ct. 445); see also Thompson v. Keohane, 516 U.S. 99, 114, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403-05, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).⁸

With respect to the first Salve Regina factor, the trial court is better positioned to decide the Batson prima facie issue, which involves a “ ‘factual inquiry’ that ‘takes into account all the possible explanatory factors’ in the particular case.” Batson, 476 U.S. at 95, 106 S.Ct. 1712 (quoting Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972)).⁹ Whether or not “all the relevant circumstances” “raise an inference” of discrimination will depend on factors such as the attitude and behavior of the challenging attorney and the prospective jurors manifested during voir dire. As a purely practical matter, the trial judge’s unique perspective of voir dire enables the judge to have first-hand knowledge and observation of critical events. See Bergodere, 40 F.3d at 517. The trial judge personally witnesses the totality of circumstances that comprises the “factual inquiry,” including the jurors’ demeanor and tone of voice as they answer questions and counsel’s demeanor and tone of voice in posing the questions. See Reynolds v. United States, 98 U.S. 145, 156-57, 25 L.Ed. 244 (1878) (“[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record.”). The trial judge is able to observe a juror’s attention span, alertness, and interest in the proceedings and thus will have a sense of whether the prosecutor’s challenge can be readily explained by a legitimate reason. See United States v. Moore, 895 F.2d 484, 486 (8th Cir.1990); Brewer v. Marshall, 119 F.3d 993, 1004 (1st Cir.1997) (“The trial judge is thus likely to have a much better sense than any appellate panel of whether a particular challenge can readily be explained by some reason other than race or gender — for example, other characteristics of the juror, the juror’s demeanor, or something in the juror’s background suggesting sympathy for one side or the other.”), cert. denied, — U.S. -, 118 S.Ct. 1172, 140 L.Ed.2d 182 (1998). The trial court will also have access to other information about the venire pool that often does not show up in the record on appeal — such as juror age, residence and employment.¹⁰ See Moore, 895 F.2d at 485-86. In addition, the trial court is “experienced in supervising voir dire.” Batson, 476 U.S. at 97, 106 S.Ct. 1712; see also Moore, 895 F.2d at 486.

The appellate court, on the other hand, must judge the existence of a prima facie case from a cold record. An appellate court can read a transcript of the voir dire, but it is not privy to the unspoken atmosphere of the trial court — the nuance, demeanor, body language, expression and gestures of the various players. See Bergodere, 40 F.3d at 517. The Supreme Court specifically recognized the importance of a trial court’s “first-person vantage” in voir dire in Thompson, 516 U.S. at 114, 116 S.Ct. 457. Although a Batson challenge involves the application of a legal standard, the prima facie inquiry is so fact-intensive and so dependent on first-hand observations made in open court that the trial court is better positioned to decide the issue; thus, the concerns of judicial administration tip in favor of the trial court. See Bergodere, 40 F.3d at 517 (“[T]he trial judge, who sees and hears both the prospective juror and the opposing attorneys in action, is in the best position to pass judgment on counsel’s motives.”).

The second factor recognized in Salve Regina — the level of law-clarifying value in appellate review — also weighs in favor of deference. As we have noted, the Batson prima facie analysis is “a ‘factual inquiry’ that ‘takes into account all the possible explanatory factors’ in the particular case.” Batson, 476 U.S. at 95, 106 S.Ct. 1712 (quoting Alexander, 405 U.S. at 630, 92 S.Ct. 1221). As such, it is heavily reliant on “ ‘multifarious, fleeting, special, narrow facts that utterly resist generalization.’ ” Pierce v. Underwood, 487 U.S. 552, 561-62, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting the late Professor Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 662 (1971)). Every Batson inquiry will have nuances and differences that essentially dictate the results of the case. The inquiry is, therefore, an “individual-specific decision, ... unlikely to have precedential value.” Thompson, 516 U.S. at 114, 116 S.Ct. 457. The numerous factors that go into a court’s assessment of whether the circumstances have raised an inference of discrimination — juror A appeared distracted, prosecutor B appeared more suspicious of black jurors than white jurors, juror C seemed too assertive, and so on — cannot be generalized to add definition to the existing law. See Cooter & Gell, 496 U.S. at 405, 110 S.Ct. 2447 (“ ‘Fact-bound resolutions cannot be made uniform through appellate review, de novo or otherwise.’ ” (citation omitted)). Because appellate review is unlikely to add consistency, certainty and guidance to Bat-son prima facie case law, the concerns of judicial administration remain tipped in favor of the trial court and deferential review.

In holding that the appellate court should review a trial court’s Batson prima facie determination deferentially, we join the majority of our sister circuits. See, e.g., Brewer, 119 F.3d at 1004 (“That same clear error standard applies to rulings on whether the defendant has made a Batson prima facie case.”); United States v. Stewart, 65 F.3d 918, 923 (11th Cir.1995) (“When we review the resolution of a Bat-son challenge, we give great deference to the district court’s finding as to the existence of a prima facie case.”); Bergodere, 40 F.3d at 516 (“A careful reading of Batson convinces us that, although this determination can be characterized as a mixed question of law and fact, it is fact-sensitive, and, therefore, should be reviewed under the familiar clear-error standard.”); United States v. Branch, 989 F.2d 752, 755 (5th Cir.1993) (stating that the trial court’s finding that “appellants did not make a prima facie case of discrimination under Batson ... is reviewed for clear error”); United States v. Casper, 956 F.2d 416, 418 (3d Cir.1992) (“A district court’s determination that a defendant has failed to make a prima facie showing of racial discrimination in violation of the Equal Protection Clause will be reversed only if that determination is clearly erroneous.”); Moore, 895 F.2d at 485 (“[T]he [Batson prima facie] issue should be reviewed as a finding of fact, entitling the trial judge’s ruling to great deference on review and subjecting it to reversal only in the face of clear error.”); United States v. Grandison, 885 (4th Cir.1989) (“The trial judge plays a pivotal role in determining a prima facie case.... Such findings are entitled to great deference, and will not be disturbed by this court unless clearly erroneous.” (internal quotation marks and citations omitted)).¹¹

Although many of these cases involve direct review of trial court Batson prima facie determinations, our review on habeas should certainly be no less deferential. See Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (“[Djeterminations of demeanor and credibility ... were entitled to deference even on direct review; ‘[tjhe respect paid such findings in a habeas proceeding certainly should be no less.’ ” (quoting Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984))). In fact, because the Batson prima facie determination is so factually based, it would be proper to apply the presumption of correctness allotted to factual issues by pre-AEDPA habeas law. See 28 U.S.C. § 2254(d) (1995) (“[A] determination after a hearing on the merits of a factual issue, made by a State court ... evidenced by a written finding ... shall be presumed to be correct.”); see also Thompson, 516 U.S. at 111, 116 S.Ct. 457 (“[Tjhe Court has classified as ‘factual issues’ within § 2254(d)’s compass questions extending beyond the determination of ‘what happened’ ... issues [whichj encompass more than ‘basic, primary, or historical facts,’ [but] their resolution depends heavily on the trial court’s appraisal of witness credibility and demeanor.”).

Indeed, our conclusion is also consistent with the interpretation of Batson [Wheeler prima facie determinations under California law. See People v. Howard, 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (1992) (“Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal.”). In fact, on direct appeal in this case, the California appellate court applied this deferential standard. See People v. Tolbert, No. B073260, p.9 (Cal.App. Nov. 22, 1994) (unpublished disposition) (“We must give considerable deference to the findings of the trial court under the circumstances.”).

IV

A trial court’s determination of whether a prima facie ease of discrimination under Batson has been established is to be reviewed deferentially, on direct review for clear error, or in the habeas context, by application of the statutory presumption of correctness. To the extent that Turner v. Marshall, 63 F.3d 807 (9th Cir.1995), conflicts with this holding, it is overruled.

We return control of the case to the original three-judge merits panel to review, consistent with the presumption of correctness under section 2254(d), the state trial court’s determination that Darryl Tolbert failed to establish a prima facie case of discrimination.

REMANDED TO MERITS PANEL FOR FURTHER PROCEEDINGS.

3 . Because Tolbert filed his habeas petition in the federal district court in August 1995, the Antiterrorism and Effective Death Penalty Act (“AEDPA") does not apply. See Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.) (en banc), cert. denied, - U.S. -, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997).

4 . Batson required the defendant to establish three elements in support of the prima facie case: (1) that the defendant is a member of a cognizable racial group; (2) that the prosecution “has exercised peremptory challenges to remove from the venire members of the defendant’s race”; and (3) “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.” Batson, 476 U.S. at 96, 106 S.Ct. 1712. In Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Court further liberalized Bat-son and abolished the requirement that the defendant and the stricken juror share the same race. See United States v. Hill, 146 F.3d 337, 340 (6th Cir.1998) ("The Court has subsequently modified the requirements of a pri-ma facie Batson case to allow defendants to challenge the prosecution’s allegedly race-based strikes of potential jurors even where the defendant and the stricken juror are of different races.”). Subsequently, the Court further extended Batson to hold that a challenge may be brought for gender-based discrimination in the use of peremptories. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

5 . The standards of review for rulings on certain aspects of the Batson analysis are settled in this circuit. "Whether the justification offered by a prosecutor is- an adequate race-neutral explanation is a question of law” reviewed de novo. United States v. Bishop, 959 F.2d 820, 821 n. 1 (9th Cir.1992); see also Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ("In evaluating the race neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.”). Whether the defendant has satisfied the ultimate burden of proving purposeful discrimination is, of course, a question of fact reviewed for clear error. See Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712; Hernandez, 500 U.S. at 364-65, 111 S.Ct. ; Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir.1996). It is also settled that whether the challenged juror is a member of a protected class for Batson purposes is a question of law reviewed de novo. See United States v. De Gross, 960 F.2d 1433, 1436 (9th Cir.1992) (en banc) (“Whether equal protection principles prohibit a party from peremptorily striking venirepersons on the basis of gender is a question of law that we review de novo.”). We are not invited to revisit these holdings in the pending case.

6 . The prima facie inquiry involves a mixed question of law and fact, because the court must determine whether the facts are sufficient to meet the requirements of the legal rule and, therefore, to proceed to the ensuing steps of the Batson analysis. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). As this court explained in In re Bammer, 131 F.3d 788, 792 (9th Cir.1997) (en banc), "[a] mixed question of law and fact occurs when the historical facts are established; the rule of law is undisputed ...; and the issue is whether the facts satisfy the legal rule.” In a Bat-son inquiry, the relevant facts are established because they all occur in the courtroom in front of the trial court judge; the rule of law has been established by the Supreme Court, i.e., in order to establish a prima facie case of discriminatory use of peremptory challenges, the defendant must show an inference of discrimination. The trial judge is thus left to evaluate whether or not the facts satisfy the legal rule. See Mahaffey v. Page, 162 F.3d 481, 484 (7th Cir.1998) ("[T]he preliminary question of whether a prima facie case has been shown presents a mixed question of law and fact.”), cert. denied, - U.S. -, 119 S.Ct. 1786, 143 L.Ed.2d 814 (1999); United States v. Bergodere, 40 F.3d 512, 516 (1st Cir.1994) (“A careful reading of Batson convinces us that ... this determination can be characterized as a mixed question of law and fact.”).

7 . The First Circuit has described a similar evaluation of the standard of review for mixed questions in terms of “a degree-of-deference continuum.” In re Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir.1993). In Howard, the court explained that "[t]he standard of review applicable to mixed questions usually depends upon where they fall along the degree-of-deference continuum: the more fact-dominated the question, the more likely it is that the trier's resolution of it will be accepted unless shown to be clearly erroneous.” Id. at 1328.

8 . Applying these general provisions, the Supreme Court has held that trial court rulings on probable cause and reasonable suspicion should be reviewed de novo, see Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), that the volun-tariness of a confession should be reviewed de novo, see Miller, 474 U.S. at 112-18, 106 S.Ct. at 451-53 and that an "in custody” determination for Miranda purposes should be reviewed de novo, see Thompson, 516 U.S. at 112, 116 S.Ct. 457. On the other hand, the Court has held that the following trial court determinations should be reviewed deferentially, as findings of fact: juror impartiality, see Patton v. Yount, 467 U.S. 1025, 1028, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); capital sentencing juror impartiality, see Wainwright v. Witt, 469 U.S. 412, 429, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); a defendant’s competency to stand trial, see Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam); a donor's intent in giving a gift for tax purposes, see Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); a defendant’s subjective intent to discriminate under Title VII, see Pullman-Standard, 456 U.S. at 289, 102 S.Ct. 1781; imposition of Rule 11 sanctions, see Cooter & Gell, 496 U.S. at 405, 110 S.Ct. 2447; and a prosecutor's intent in provoking a defendant to move for a mistrial, see Oregon v. Kennedy, 456 U.S. 667, 677 n. 7, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

9 . The Supreme Court gave little guidance on what facts might constitute a prima facie case. The Court did, however, give two "illustrative” examples: (1) "a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination”; and (2) "the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Batson, 476 U.S. at 97, 106 S.Ct. 1712.

10 . The dissent argues that, because Batson looks to Title VII cases for guidance on the burden shifting procedure of the peremptory challenge inquiry, Title VII case law should govern our standard of review. We do not find this argument persuasive because of the vast difference between the Title VII and Bat-son prima facie inquiries. The four elements required to make out a Title VII prima facie case, as set out in footnote 2 of the dissent, are all historical facts that show up in the record and can readily be evaluated on appeal. The appellate court is as well situated to scrutinize whether the factors established below were sufficient to make a prima facie case of a Title VII evaluation as is the trial court. As outlined previously, however, the Batson prima facie inquiry involves a trial court's evaluation of facts that play out in court, in front of the trial judge. These facts will often not appear in the record and, thus, with incomplete information, the appellate court is ill-equipped to scrutinize whether the district court’s prima facie determination was correct.

11 . Curiously, the Seventh Circuit has recently held that a Batson prima facie case should be reviewed de novo. See Mahaffey, 162 F.3d at 484 ("[Tjhe preliminary question of whether a prima facie case has been shown presents a mixed question of law and fact which the appellate courts should review de novo.” (internal citations omitted)). The court likened the prima facie determination to the probable cause determination discussed in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), in which the Supreme Court held that a probable cause determination should be reviewed de novo to allow for a measure of consistency, certainly and, therefore, guidance in the law. We disagree with the Seventh Circuit’s conclusion that the Batson prima facie determination is like the probable cause determination. In evaluating probable cause, the trial court must consider “the events which occurred leading up to the stop or search” and must then evaluate whether those facts amount to probable cause. Id. at 696, 116 S.Ct. 1657. Thus, like the Title VII inquiry and unlike the Batson inquiry, the trial court will be judging facts described to the judge and not facts that play out in front of the judge.