Miller-El v. Dretke

delivered the opinion of the Court.

Two years ago, we ordered that a certificate of appealability, under 28 U. S. C. § 2253(c), be issued to habeas petitioner Miller-El, affording review of the District Court’s rejection of the claim that prosecutors in his capital murder trial made peremptory strikes of potential jurors based on race. Today we find Miller-El entitled to prevail on that claim and order relief under § 2254.

I

In the course of robbing a Holiday Inn in Dallas, Texas, in late 1985, Miller-El and his accomplices bound and gagged *236two hotel employees, whom Miller-El then shot, killing one and severely injuring the other. During jury selection in Miller-El’s trial for capital murder, prosecutors used peremptory strikes against 10 qualified black venire members. Miller-El objected that the strikes were based on race and could not be presumed legitimate, given a history of excluding black members from criminal juries by the Dallas County District Attorney’s Office. The trial court received evidence of the practice alleged but found no “systematic exclusion of blacks as a matter of policy” by that office, App. 882-883, and therefore no entitlement to relief under Swain v. Alabama, 380 U. S. 202 (1965), the case then defining and marking the limits of relief from racially biased jury selection. The court denied Miller-El’s request to pick a new jury, and the trial ended with his death sentence for capital murder.

While an appeal was pending, this Court decided Batson v. Kentucky, 476 U. S. 79 (1986), which replaced Swain’s threshold requirement to prove systemic discrimination under a Fourteenth Amendment jury claim, with the rule that discrimination by the prosecutor in selecting the defendant’s jury sufficed to establish the constitutional violation. The Texas Court of Criminal Appeals then remanded the matter to the trial court to determine whether Miller-El could show that prosecutors in his case peremptorily struck prospective black jurors because of race. Miller-El v. State, 748 S. W. 2d 459 (1988) (en banc).

The trial court found no such demonstration. After reviewing the voir dire record of the explanations given for some of the challenged strikes, and after hearing one of the prosecutors, Paul Macaluso, give his justification for those previously unexplained, the trial court accepted the stated race-neutral reasons for the strikes, which the judge called “completely credible [and] sufficient” as the grounds for a finding of “no purposeful discrimination.” Findings of Fact and Conclusions of Law Upon Remand from the Court of Criminal Appeals in State v. Miller-El, No. 8668-NL (5th Crim. Dist. Ct., Dallas County, Tex., Jan. 13, 1989), pp. 5-6, *237App. 928-929. The Court of Criminal Appeals affirmed, stating it found “ample support” in the voir dire record for the race-neutral explanations offered by prosecutors for the peremptory strikes. Miller-El v. State, No. 69,677 (Sept. 16, 1992) (per curiam), p. 2, App. 931.

Miller-El then sought habeas relief under 28 U. S. C. §2254, again pressing his Batson claim, among others not now before us. The District Court denied relief, Miller-El v. Johnson, Civil No. 3:96-CV-1992-H (ND Tex., June 5, 2000), App. 987, and the Court of Appeals for the Fifth Circuit precluded appeal by denying a certificate of appealability, Miller-El v. Johnson, 261 F. 3d 445 (2001). We granted certiorari to consider whether Miller-El was entitled to review on the Batson claim, Miller-El v. Cockrell, 534 U. S. 1122 (2002), and reversed the Court of Appeals. After examining the record of Miller-El’s extensive evidence of purposeful discrimination by the Dallas County District Attorney’s Office before and during his trial, we found an appeal was in order, since the merits of the Batson claim were, at the least, debatable by jurists of reason. Miller-El v. Cockrell, 537 U. S. 322 (2003). After granting a certificate of appealability, the Fifth Circuit rejected Miller-El’s Batson claim on the merits. 361 F. 3d 849 (2004). We again granted certiorari, 542 U. S. 936 (2004), and again we reverse.

a

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It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.” Strauder v. West Virginia, 100 U. S. 303, 309 (1880); see also Batson v. Kentucky, supra, at 86. Defendants are harmed, of course, when racial discrimination in jury selection compromises the right of trial by impartial jury, Strauder v. West Virginia, supra, at 308, but racial minorities are harmed more generally, for prosecu*238tors drawing racial lines in picking juries establish “state-sponsored group stereotypes rooted in, and reflective of, historical prejudice,” J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 128 (1994).

Nor is the harm confined to minorities. When the government’s choice of jurors is tainted with racial bias, that “overt wrong ... casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial . . . .” Powers v. Ohio, 499 U. S. 400, 412 (1991). That is, the very integrity of the courts is jeopardized when a prosecutor’s discrimination “invites cynicism respecting the jury’s neutrality,” ibid., and undermines public confidence in adjudication, Georgia v. McCollum, 505 U. S. 42, 49 (1992); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 628 (1991); Batson v. Kentucky, supra, at 87. So, “[f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause.” Georgia v. McCollum, supra, at 44; see Strauder v. West Virginia, supra, at 308, 310; Norris v. Alabama, 294 U. S. 587, 596 (1935); Swain v. Alabama, supra, at 223-224; Batson v. Kentucky, supra, at 84; Powers v. Ohio, supra, at 404.

The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected. In Swain v. Alabama, we tackled the problem of “the quantum of proof necessary” to show purposeful discrimination, 380 U. S., at 205, with an eye to preserving each side’s historical prerogative to make a peremptory strike or challenge, the very‘nature of which is traditionally “without a reason stated,” id., at 220. The Swain Court tried to relate peremptory challenge to equal protection by presuming the legitimacy of prosecutors’ strikes except in the face of a longstanding pattern of discrimination: when “in case after case, whatever the circumstances,” no blacks served on ju-*239ríes, then “giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge [were] being perverted.” Id., at 223-224.

Swain’s demand to make out a continuity of discrimination over time, however, turned out to be difficult to the point of unworkable, and in Batson v. Kentucky, we recognized that this requirement to show an extended pattern imposed a “crippling burden of proof” that left prosecutors’ use of pe-remptories “largely immune from constitutional scrutiny.” 476 U. S., at 92-93. By Batson’s day, the law implementing equal protection elsewhere had evolved into less discouraging standards for assessing a claim of purposeful discrimination, id., at 93-95 (citing, e. g., Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977)), and we accordingly held that a defendant could make out a prima facie case of discriminatory jury selection by “the totality of the relevant facts” about a prosecutor’s conduct during the defendant’s own trial. Batson v. Kentucky, 476 U. S., at 94, 96. “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging ... jurors” within an arguably targeted class. Id., at 97. Although there may be “any number of bases on which a prosecutor reasonably [might] believe that it is desirable to strike a juror who is not excusable for cause . .., the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challeng[e].” Id., at 98, n. 20 (internal quotation marks omitted). “The trial court then will have the duty to determine if the defendant has established purposeful discrimination.” Id., at 98.

Although the move from Swain to Batson left a defendant free to challenge the prosecution without having to cast Swain’s wide net, the net was not entirely consigned to history, for Batson’s individualized focus came with a weakness *240of its own owing to its very emphasis on the particular reasons a prosecutor might give. If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain. Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson’s explanation that a defendant may rely on “all relevant circumstances” to raise an inference of purposeful discrimination. 476 U. S., at 96-97.

B

This case comes to us on review of a denial of habeas relief sought under 28 U. S. C. §2254, following the Texas trial court’s prior determination of fact that the State’s race-neutral explanations were true, see Purkett v. Elem, 514 U. S. 765, 769 (1995) (per curiam); Batson v. Kentucky, supra, at 98, n. 21.

Under the Antiterrorism and Effective Death Penalty Act of 1996, Miller-El may obtain relief only by showing the Texas conclusion to be “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. § 2254(d)(2). Thus we presume the Texas court’s factual findings to be sound unless Miller-El rebuts the “presumption of correctness by clear and convincing evidence.” § 2254(e)(1). The standard is demanding but not insatiable; as we said the last time this case was here, “[d]eference does not by definition preclude relief.” Miller-El v. Cockrell, 537 U. S., at 340.

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A

The numbers describing the prosecution’s use of perempto-ries are remarkable. Out of 20 black members of the 108-person venire panel for Miller-El’s trial, only 1 served. Although 9 were excused for cause or by agreement, 10 were *241peremptorily struck by the prosecution. Id., at 331. “The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members .... Happenstance is unlikely to produce this disparity.” Id., at 342.

More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve. If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 147 (2000) (in employment discrimination cases, “[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive”). While we did not develop a comparative juror analysis last time, we did note that the prosecution’s reasons for exercising peremptory strikes against some black panel members appeared equally on point as to some white jurors who served. Miller-El v. Cockrell, supra, at 343.1 The details of two panel member comparisons bear this out.2

*242The prosecution used its second peremptory strike to exclude Billy Jean Fields, a black man who expressed unwavering support for the death penalty. On the questionnaire filled out by all panel members before individual examination on the stand, Fields said that he believed in capital punishment, Joint Lodging 14, and during questioning he disclosed his belief that the State acts on God's behalf when it imposes the death penalty. “Therefore, if the State exacts death, then that’s what it should be.” App. 174. He testified that he had no religious or philosophical reservations about the death penalty and that the death penalty deterred crime. Id., at 174-175. He twice averred, without apparent hesitation, that he could sit on Miller-El’s jury and make a decision to impose this penalty. Id., at 176-177.

Although at one point in the questioning, Fields indicated that the possibility of rehabilitation might be relevant to the likelihood that a defendant would commit future acts of violence, id., at 183, he responded to ensuing questions by saying that although he believed anyone could be rehabilitated, this belief would not stand in the way of a decision to impose the death penalty:

“[B]ased on what you [the prosecutor] said as far as the crime goes, there are only two things that could be rendered, death or life in prison. If for some reason the testimony didn’t warrant death, then life imprisonment *243would give an individual an opportunity to rehabilitate. But, you know, you said that the jurors didn’t have the opportunity to make a personal decision in the matter with reference to what I thought or felt, but it was just based on the questions according to the way the law has been handed down.” Id., at 185 (alteration omitted).

Fields also noted on his questionnaire that his brother had a criminal history. Joint Lodging 13. During questioning, the prosecution went into this, too:

“Q Could you tell me a little bit about that?

“A He was arrested and convicted on [a] number of occasions for possession of a controlled substance.

“Q Was that here in Dallas?

“A Yes.

“Q Was he involved in any trials or anything like that? “A I suppose of sorts. I don’t really know too much about it.

“Q Was he ever convicted?

"A Yeah, he served time.

“Q Do you feel that that would in any way interfere with your service on this jury at all?

“A No.” App. 190 (alteration omitted).

Fields was struck peremptorily by the prosecution, with prosecutor James Nelson offering a race-neutral reason:

“[W]e . . . have concern with reference to some of his statements as to the death penalty in that he said that he could only give death if he thought a person could not be rehabilitated and he later made the comment that any person could be rehabilitated if they find God or are introduced to God and the fact that we have a concern that his religious feelings may affect his jury service in this case.” Id., at 197 (alteration omitted).

*244Thus, Nelson simply mischaracterized Fields’s testimony. He represented that Fields said he would not vote for death if rehabilitation was possible, whereas Fields unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation. Perhaps Nelson misunderstood, but unless he had an ulterior reason for keeping Fields off the jury we think he would have proceeded differently. In light of Fields’s outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike.

If, indeed, Fields’s thoughts on rehabilitation did make the prosecutor uneasy, he should have worried about a number of white panel members he accepted with no evident reservations. Sandra Hearn said that she believed in the death penalty “if a criminal cannot be rehabilitated and continues to commit the same type of crime.” Id., at 429.3 Hearn went so far as to express doubt that at the penalty phase of a capital case she could conclude that a convicted murderer “would probably commit some criminal acts of violence in the future.” Id., at 440. “People change,” she said, making it hard to assess the risk of someone’s future dangerousness. “[T]he evidence would have to be awful strong.” Ibid. But the prosecution did not respond to Hearn the way it did to Fields, and without delving into her views about rehabilitation with any further question, it raised no objection to her serving on the jury. White panelist Mary Witt said she would take the possibility of rehabilitation into account in deciding at the penalty phase of the trial about a defendant’s probability of future dangerousness, 6 Record of Voir Dire 2433 (hereinafter Record), but the prosecutors asked her no further question about her views on reformation, and they *245accepted her as a juror, id., at 2464-2465.4 Latino venireman Fernando Gutierrez, who served on the jury, said that he would consider the death penalty for someone who could not be rehabilitated, App. 777, but the prosecutors did not question him further about this view. In sum, nonblack jurors whose remarks on rehabilitation could well have signaled a limit on their willingness to impose a death sentence were not questioned further and drew no objection, but the prosecution expressed apprehension about a black juror’s belief in the possibility of reformation even though he repeatedly stated his approval of the death penalty and testified that he could impose it according to state legal standards even when the alternative sentence of life imprisonment would give a defendant (like everyone else in the world) the opportunity to reform.5

The unlikelihood that his position on rehabilitation had anything to do with the peremptory strike of Fields is underscored by the prosecution’s response after Miller-El’s lawyer pointed out that the prosecutor had misrepresented Fields’s responses on the subject. A moment earlier the prosecutor *246had finished his misdescription of Fields’s views on potential rehabilitation with the words, “Those are our reasons for exercising our . . . strike at this time.” Id., at 197. When defense counsel called him on his misstatement, he neither defended what he said nor withdrew the strike. Id., at 198. Instead, he suddenly came up with Fields’s brother’s prior conviction as another reason for the strike. Id., at 199.

It would be difficult to credit the State’s new explanation, which reeks of afterthought. While the Court of Appeals tried to bolster it with the observation that no seated juror was in Fields’s position with respect to his brother, 361 F. 3d, at 859-860, the court’s readiness to accept the State’s substitute reason ignores not only its pretextual timing but the other reasons rendering it implausible. Fields’s testimony indicated he was not close to his brother, App. 190 (“I don’t really know too much about it”), and the prosecution asked nothing further about the influence his brother’s history might have had on Fields, as it probably would have done if the family history had actually mattered. See, e.g., Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000) (“[T]he State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination”). There is no good reason to doubt that the State’s afterthought about Fields’s brother was anything but makeweight.

The Court of Appeals’s judgment on the Fields strike is unsupportable for the same reason the State’s first explanation is itself unsupportable. The Appeals Court’s description of Fields’s voir dire testimony mentioned only his statements that everyone could be rehabilitated, failing to note that Fields affirmed that he could give the death penalty if the law and evidence called for it, regardless of the possibility of divine grace. The Court of Appeals made no mention of the fact that the prosecution mischaracterized Fields as *247saying he could not give death if rehabilitation were possible. 361 F. 3d, at 856.

In sum, when we look for nonblack jurors similarly situated to Fields, we find strong similarities as well as some differences.6 But the differences seem far from significant, particularly when we read Fields’s voir dire testimony in its entirety. Upon that reading, Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecutors’ explanations for the strike cannot reasonably be accepted. See Miller-El v. Cockrell, 537 U. S., at 339 (the credibility of reasons given can be measured by “how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy”).

The prosecution’s proffered reasons for striking Joe Warren, another black venireman, are comparably unlikely. Warren gave this answer when he was asked what the death penalty accomplished:

“I don’t know. It’s really hard to say because I know sometimes you feel that it might help to deter crime and then you feel that the person is not really suffering. You’re taking the suffering away from him. So it’s like I said, sometimes you have mixed feelings about whether or not this is punishment or, you know, you’re *248relieving personal punishment.” App. 205; 3 Record 1532.

The prosecution said nothing about these remarks when it struck Warren from the panel, but prosecutor Paul Macaluso referred to this answer as the first of his reasons when he testified at the later Batson hearing:

“I thought [Warren’s statements on voir dire] were inconsistent responses. At one point he says, you know, on a case-by-case basis and at another point he said, well, I think — I got the impression, at least, that he suggested that the death penalty was an easy way out, that they should be made to suffer more.” App. 909.

On the face of it, the explanation is reasonable from the State’s point of view, but its plausibility is severely undercut by the prosecution’s failure to object to other panel members who expressed views much like Warren’s. Kevin Duke, who served on the jury, said, “sometimes death would be better to me than — being in prison would be like dying every day and, if you were in prison for life with no hope of parole, I[’d] just as soon have it over with than be in prison for the rest of your life.” Id., at 372. Troy Woods, the one black panelist to serve as juror, said that capital punishment “is too easy. I think that’s a quick relief.... I feel like [hard labor is] more of a punishment than putting them to sleep.” Id., at 408. Sandra Jenkins, whom the State accepted (but who was then struck by the defense) testified that she thought “a harsher treatment is life imprisonment with no parole.” Id., at 542. Leta Girard, accepted by the State (but also struck by the defense) gave her opinion that “living sometimes is a worse — is worse to me than dying would be.” Id., at 624. The fact that Macaluso’s reason also applied to these other panel members, most of them white, none of them struck, is evidence of pretext.

*249The suggestion of pretext is not, moreover, mitigated much by Macaluso’s explanation that Warren was struck when the State had 10 peremptory challenges left and could afford to be liberal in using them. Id., at 908. If that were the explanation for striking Warren and later accepting panel members who thought death would be too easy, the prosecutors should have struck Sandra Jenkins, whom they examined and accepted before Warren. Indeed, the disparate treatment is the more remarkable for the fact that the prosecutors repeatedly questioned Warren on his capacity and willingness to impose a sentence of death and elicited statements of his ability to do so if the evidence supported that result and the answer to each special question was yes, id., at 202.2, 202.3, 205, 207, whereas the record before us discloses no attempt to determine whether Jenkins would be able to vote for death in spite of her view that it was easy on the convict, id., at 541-546. Yet the prosecutors accepted the white panel member Jenkins and struck the black venireman Warren.

Macaluso’s explanation that the prosecutors grew more sparing with peremptory challenges as the jury selection wore on does, however, weaken any suggestion that the State’s acceptance of Woods, the one black juror, shows that race was not in play. Woods was the eighth juror, qualified in the fifth week of jury selection. Joint Lodging 125. When the State accepted him, 11 of its 15 peremptory strikes were gone, 7 of them used to strike black panel members. Id., at 137. The juror questionnaires show that at least three members of the venire panel yet to be questioned on the stand were opposed to capital punishment, Janice Mackey, id., at 79; Paul Bailey, id., at 63; and Anna Keaton, id., at 55.7 With at least three remaining panel members *250highly undesirable to the State, the prosecutors had to exercise prudent restraint in using strikes. This late-stage decision to accept a black panel member willing to impose a death sentence does not, therefore, neutralize the early-stage decision to challenge a comparable venireman, Warren. In fact, if the prosecutors were going to accept any black juror to obscure the otherwise consistent pattern of opposition to seating one, the time to do so was getting late.8

The Court of Appeals pretermitted these difficulties by stating that the prosecution’s reason for striking Warren was a more general ambivalence about the penalty and his ability to impose it, 361 F. 3d, at 856-857 (and the dissent presses that explanation here, post, at 286-289). But this rationalization was erroneous as a matter of fact and as a matter of law.

As to fact, Macaluso said nothing about any general ambivalence. He simply alluded to the possibility that Warren might think the death penalty too easy on some defendants, saying nothing about Warren’s ability to impose the penalty when it appeared to be warranted.9 On the contrary, though *251Warren had indeed questioned the extent to which the death penalty served a purpose in society, App. 205, he explained his position in response to the very next question: it was not any qualm about imposing what society generally deems its harshest punishment, but his concern that the death penalty might not be severe enough, ibid. When Warren was asked whether he could impose the death penalty he said he thought he could; when told that answering yes to the special issue questions would be tantamount to voting for death he said he could give yes answers if the evidence supported them. Id., at 207.10

As for law, the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and *252it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. 476 U. S., at 96-97; Miller-El v. Cockrell, 537 U. S., at 339. It is true that peremptories are often the subjects of instinct, Batson v. Kentucky, supra, at 106 (Marshall, J., concurring), and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals’s and the dissent’s substitution of a reason for eliminating Warren does nothing to satisfy the prosecutors’ burden of stating a racially neutral explanation for their own actions.

The whole of the voir dire testimony subject to consideration casts the prosecution’s reasons for striking Warren in an implausible light. Comparing his strike with the treatment of panel members who expressed similar views supports a conclusion that race was significant in determining who was challenged and who was not.11

*253B

The case for discrimination goes beyond these comparisons to include broader patterns of practice during the jury selection. The prosecution’s shuffling of the venire panel, its en-quiry into views on the death penalty, its questioning about minimum acceptable sentences: all indicate decisions probably based on race. Finally, the appearance of discrimination is confirmed by widely known evidence of the general policy of the Dallas County District Attorney’s Office to exclude black venire members from juries at the time Miller-El’s jury was selected.

The first clue to the prosecutors’ intentions, distinct from the peremptory challenges themselves, is their resort during voir dire to a procedure known in Texas as the jury shuffle. In the State’s criminal practice, either side may literally reshuffle the cards bearing panel members’ names, thus rearranging the order in which members of a venire panel are seated and reached for questioning.12 Once the order is established, the panel members seated at the back are likely to escape voir dire altogether, for those not questioned by the end of the week are dismissed. As we previously explained,

*254“the prosecution’s decision to seek a jury shuffle when a predominant number of African-Americans were seated in the front of the panel, along with its decision to delay a formal objection to the defense’s shuffle until after the new racial composition was revealed, raise a suspicion that the State sought to exclude African-Americans from the jury. Our concerns are amplified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney’s Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past.” Miller-El v. Cockrell, supra, at 346.

In this case, the prosecution and then the defense shuffled the cards at the beginning of the first week of voir dire; the record does not reflect the changes in order. App. 113-114. At the beginning of the second week, when a number of black members were seated at the front of the panel, the prosecution shuffled.13 2 Record 836-837. At the beginning of the third week, the first four panel members were black. The prosecution shuffled, and these black panel members ended up at the back. Then the defense shuffled, and the black panel members again appeared at the front. The prosecution requested another shuffle, but the trial court refused. App. 124-132. Finally, the defense shuffled at the beginning of the fourth and fifth weeks of voir dire; the record does not reflect the panel’s racial composition before or after those shuffles. Id., at 621-622; 9 Record 3585-3586.

The State notes in its brief that there might be racially neutral reasons for shuffling the jury, Brief for Respondent 36-37, and we suppose there might be. But no racially neutral reason has ever been offered in this case, and nothing *255stops the suspicion of discriminatory intent from rising to an inference.14

The next body of evidence that the State was trying to avoid black jurors is the contrasting voir dire questions posed respectively to black and nonblack panel members, on two different subjects. First, there were the prosecutors’ statements preceding questions about a potential juror’s thoughts on capital punishment. Some of these prefatory statements were cast in general terms, but some followed the so-called graphic script, describing the method of execution in rhetorical and clinical detail. It is intended, Miller-El contends, to prompt some expression of hesitation to consider the death penalty and thus to elicit plausibly neutral grounds for a peremptory strike of a potential juror subjected to it, if not a strike for cause. If the graphic script is given to a higher proportion of blacks than whites, this is evidence that prosecutors more often wanted blacks off the jury, absent some neutral and extenuating explanation.

As we pointed out last time, for 94% of white venire panel members, prosecutors gave a bland description of the death penalty before asking about the individual’s feelings on the subject. Miller-El v. Cockrell, 537 U. S., at 332. The abstract account went something like this:

“I feel like it [is] only fair that we tell you our position in this case. The State of Texas ... is actively seeking the death penalty in this case for Thomas Joe Miller-El. We anticipate that we will be able to present to a jury the quantity and type of evidence necessary to convict him of capital murder and the quantity and type of evi*256dence sufficient to allow a jury to answer these three questions over here in the affirmative. A yes answer to each of those questions results in an automatic death penalty from Judge McDowell.” App. 564-565.

Only 6% of white venire panelists, but 53% of those who were black, heard a different description of the death penalty before being asked their feelings about it. This is an example of the graphic script:

“I feel like you have a right to know right up front what our position is. Mr. Kinne, Mr. Macaluso and myself, representing the people of Dallas County and the state of Texas, are actively seeking the death penalty for Thomas Joe Miller-El....

“We do that with the anticipation that, when the death penalty is assessed, at some point Mr. Thomas Joe Miller-El — the man sitting right down there — will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected with a lethal substance until he is dead as a result of the proceedings that we have in this court on this case. So that’s basically our position going into this thing.” Id., at 572-573 (alteration omitted).

The State concedes that this disparate questioning did occur but argues that use of the graphic script turned not on a panelist’s race but on expressed ambivalence about the death penalty in the preliminary questionnaire.15 Prosecu*257tors were trying, the argument goes, to weed out noncommittal or uncertain jurors, not black jurors. And while some white venire members expressed opposition to the death penalty on their questionnaires, they were not read the graphic script because their feelings were already clear. The State says that giving the graphic script to these panel members would only have antagonized them. Brief