Full opinion text
OPINION OF THE COURT SLOVITER, Circuit Judge, with whom Judges MANSMANN, NYGAARD, ROTH, McKEE and AMBRO join, with whom Judges SCIRICA and FUENTES join as to Part II B, and with whom Chief Judge BECKER joins in the judgment. Appellant James W. Riley, a 22 year old black man, was sentenced to death on the vote of a Delaware state jury in December 1982. If the time intervening between that sentence and this court’s en banc consideration of the matter has been lengthy, it is not because there has been undue delay at any stage but because the case raises legitimate questions that go to the constitutionality of the original trial and sentencing. It was necessary to complete a series of proceedings in both state and federal court, none of them duplica-tive, before the case reached this stage. After all, there can be no reconsideration after the execution of a death sentence. I. INTRODUCTION According to testimony at the trial, Riley and Tyrone Baxter stopped in a liquor store in Dover, Delaware, on February 8, 1982, to get some beer and rob the store. Michael Williams waited in the car. Baxter testified that Riley, armed with a gun, placed a bottle of beer on the counter and announced the store was being robbed. When the store owner, James Feeley, a 59 year old.white man, backed away from the cash register, Baxter grabbed the money out of the cash drawer. Riley tried to take Feeley’s wallet, but Feeley resisted. At Baxter’s urging, Riley shot Feeley in the leg. Feeley, who was then hopping up and down, apparently from the gunshot, said “[Y]ou f ‘ing niggers.” App. at 327. As Riley and Baxter were proceeding to the door to leave, Feeley threw a wine bottle that struck Riley in the arm. Riley then shot Feeley in the chest, killing him. In May 1982, Riley, Baxter, and Williams were indicted on charges of felony murder, intentional murder, first degree robbery, possession of a deadly weapon during a felony, and second degree conspiracy. Riley pled not guilty to all charges. Baxter pled guilty to first degree murder and was sentenced to life imprisonment in exchange for his testimony against Riley. The murder and weapon charges against Williams were also dropped in exchange for his testimony against Riley, and he was subsequently convicted of the robbery and conspiracy charges. Riley was represented at trial by appointed counsel, a defense-side civil litigator who had never represented a criminal defendant in either a murder or a capital ease. His pretrial motions for co-counsel and funds for a private investigator were denied. The prosecutors in Riley’s case were James Liguori and Mark McNulty. Liguori, the lead prosecutor, was a friend and neighbor of Feeley’s, and they belonged to the same church. The State presented the testimony of Baxter, Williams, Baxter’s mother (who testified that Riley spent the night before the robbery at her house), and a witness who reported that Riley’s fingerprints were on a bottle of beer in the liquor store. In defense, Riley testified that he was in Philadelphia on the day of the murder celebrating his mother’s birthday. However, Riley’s mother did not testify in support of his alibi. The only witness Riley presented other than himself was an inmate at the prison in which Baxter was incarcerated, and he testified that Baxter had admitted to shooting Feeley. Riley was tried before and convicted on all counts by an all white jury in Kent County Superior Court (the Delaware trial court) in December 1982. Four days after the verdict, the jury proceeded to consider the penalty. The State sought the death penalty, relying only on Riley’s felony murder conviction and using the underlying robbery as the lone aggravating circumstance. Following a two-hour penalty hearing, the jury unanimously recommended a sentence of death which the court accepted. Riley was also sentenced to life imprisonment without parole for intentional murder, 20 years imprisonment for robbery, 5 years imprisonment for possession of a deadly weapon, and 3 years imprisonment for conspiracy. Riley’s attorney explained to the trial court that he spent only 14 hours preparing for the penalty phase because he had been too busy “with the defense and the merits” to spend more time building a case in mitigation. App. at 443-444. Riley appealed his conviction and sentence on numerous grounds. In July 1985, the Delaware Supreme Court affirmed, see Riley v. State, 496 A.2d 997 (Del.1985) (hereafter “Riley I”), and the Supreme Court of the United States denied certiorari, see Riley v. Delaware, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). Represented by new counsel, Riley filed a motion for post-conviction relief in Kent County Superior Court in March 1987 before Judge Bush, the judge who had presided at the trial (the “trial judge”), alleging, inter alia, that his trial counsel had provided ineffective assistance of counsel and that the prosecution had exercised its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After three days of evidentiary hearings limited to the ineffective assistance of counsel claim, the trial judge denied Riley’s motion. See State v. Riley, 1988 WL 47076 (Del.Super.1988) (hereafter “Riley II”). Riley then requested the Superior Court consider rear-gument on his Batson claim. The trial judge had passed away and Judge Steele of the Superior Court (“the hearing judge”) granted Riley’s request for reargument, finding that Riley had established a prima facie case of discrimination under Batson. See State v. Riley, 1988 WL 130430, at *3 (Del.Super.1988) (hereafter “Riley III”). After holding an evidentiary hearing, the hearing judge rejected Riley’s Batson claim and all his other claims as well. See Riley v. State, No. 200, 1988 (Del.Super. Ct. April 21, 1989), App. at 886 (hereafter “Riley IV”). On appeal, the Delaware Supreme Court again affirmed, see Riley v. State, 585 A.2d 719 (Del.1990) (hereafter “Riley V”), and the Supreme Court of the United States again denied certiorari, see Riley v. Delaware, 501 U.S. 1223, 111 S.Ct. 2840, 115 L.Ed.2d 1008 (1991). On August 12, 1991, Riley filed a petition for a writ of habeas corpus in the United States District Court for the District of Delaware pursuant to 28 U.S.C. § 2254. Again Riley obtained new lead counsel, although his post-conviction counsel remained as co-counsel. The District Court denied Riley’s request to amend his petition to add two additional claims and then denied his petition without an eviden-tiary hearing. See Riley v. Snyder, 840 F.Supp. 1012 (D.Del.1993) (hereafter “Riley VI”). Riley appealed, and this court held that the denial of his motion to amend was an abuse of discretion and remanded the case so that Riley could raise all the issues he sought to raise in an amended petition. See Riley v. Taylor, 62 F.3d 86 (3d Cir.1995) (hereafter “Riley VII”). Riley filed his amended habeas petition on August 28, 1995, alleging 12 grounds for relief. The District Court denied Riley’s petition without holding an evidentiary hearing. See Riley v. Taylor, 1998 WL 172856 (D.Del. Jan.16, 1998) (hereafter “Riley VIII”). We then issued a certificate of probable cause and Riley appealed, raising 12 claims. He asserted that: 1. The State’s exercise of peremptory challenges to strike all prospective black jurors violated the Equal Protection Clause under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 2. The State’s continuing conduct in withholding wiretap tapes of a key witness from Riley violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 3. Riley received ineffective assistance of counsel because he was prejudiced by trial counsel’s deficient performance at the penalty hearing. 4. The trial court violated Riley’s Sixth and Fourteenth Amendment rights by denying his motions to appoint co-counsel and a private investigator. 5. The prosecution and the trial court made improper remarks at the penalty hearing violating the Eighth and Fourteenth Amendments under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). 6. The trial court failed to probe equivocal responses during the death penalty voir dire in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). 7. Riley’s jury was unconstitutionally biased in favor of returning the death penalty because the trial judge’s voir dire failed to identify all prospective jurors who automatically would impose the death penalty. 8. Riley was deprived of his constitutional right to a fair and impartial jury because of pretrial publicity. 9. The Delaware Supreme Court’s proportionality review violated Riley’s Eighth and Fourteenth Amendment rights. 10. The trial court’s jury instructions failed adequately to guide Riley’s jurors on the law, thereby creating a substantial risk that the jurors would impose the death penalty in an arbitrary and capricious manner in violation of both the Eighth and Fourteenth Amendments. 11. The use of felony murder to establish both Riley’s eligibility for death and the aggravating circumstance warranting imposition of the death penalty is arbitrary and capricious in violation of the Eighth and Fourteenth Amendments. 12. The District Court abused its discretion in not holding an eviden-tiary hearing, in denying Riley’s motions to conduct discovery and expand the record, and in denying Riley’s applications for funds for medical and investigative experts. A divided panel of this court affirmed. See Riley v. Taylor, 237 F.3d 300, 2001 WL 43597 (3d Cir.2001) (hereafter “Riley IX”). The author of this opinion dissented on two claims, those raising Batson and Caldwell violations (claims numbered 1 and 5 above). On March 5, 2001, the full court granted Riley’s petition for rehearing en banc, and vacated the panel’s opinion and judgment. See Riley v. Taylor, 237 F.3d 348 (3d Cir.2001). Our order limited the en banc proceedings to the District Court’s denial of Riley’s Batson and Caldwell claims. See id. We now reverse and direct the District Court to grant the writ of habeas corpus. The District Court exercised subject matter jurisdiction pursuant to 28 U.S.C. § 2254. We possess appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. II. DISCUSSION Riley presents two arguments to the en banc court. He argues first, that the prosecution exercised its peremptory challenges to strike black jurors in violation of the Equal Protection Clause of the Fourteenth Amendment, and second, that the prosecutor’s statements to the jury in his opening argument at sentencing misled the jury regarding its role in the sentencing process in violation of the Eighth and Fourteenth Amendments. We will address each of these arguments in turn. A. THE BATSON CLAIM Riley’s claim that the prosecution violated the Equal Protection Clause by using its peremptory challenges to strike all three prospective black jurors from the jury panel because of their race, thereby leaving no black juror sitting on the jury, stems from the Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 1. Preservation of Claim The District Court held that Riley was procedurally barred from raising his Batson claim in his habeas petition because he failed to present that claim to the trial court. See Riley VIII, 1998 WL 172856, at *15. We do not agree. The Delaware Supreme Court concluded on Riley’s direct appeal “that no Sixth Amendment peremptory challenge claim was fairly presented to the Trial Court,” and also held, in the alternate, that Riley’s Batson claim failed on the merits. Riley I, 496 A.2d at 1010. However, the Supreme Court of the United States has since made clear that, “[i]f the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In his memorandum opinion granting Riley’s motion for a post-conviction evidentiary hearing, the Superior Court hearing judge stated that he did not think the State Supreme Court would maintain its position that Riley had failed to timely present a Batson claim. See Riley III, 1988 WL 130430, at *2 (citing Baynard v. State, 518 A.2d 682 (Del.1986)).' Thereafter, the hearing judge considered and rejected Riley’s Batson claim on the merits. See Riley IV, App. at 887-891. On appeal, the Delaware Supreme Court affirmed the hearing judge’s decision, using language that expressly refers to the Superior Court’s rejection of Riley’s Batson claim on the merits. See infra note 9. Moreover, in that passage, the Delaware Supreme Court expressly reaffirmed its holding on direct appeal that the prosecution’s use of peremptory challenges in this case did not violate the state constitution. Not only is there no reaffirmation of its prior holding concerning procedural default, but there is no reference to that holding, leading us to conclude it no longer relied on a procedural bar. See Harris v. Reed, 489 U.S. 255, 266, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (concluding that habeas claim was not procedurally barred where state court rejected the claim on the merits notwithstanding its observation that allegations “could have been raised [on] direct appeal”). If the Delaware Supreme Court had continued to believe at the time of its most recent decision that Riley’s Batson claim was foreclosed for failure to make a proper objection at the time of trial, it seems likely that the Court would have made that point expressly, instead of affirming the hearing judge’s findings on the merits. Indeed, it is unlikely that it would have made no comment on the hearing judge’s failure to follow its earlier decision on foreclosure. Thus, we interpret the decision of the Delaware Supreme Court in Riley V (its most recent) to be a rejection of Riley’s Batson claim on the merits. Accordingly, Riley’s Batson claim is not procedurally barred and we proceed to examine its merits. 2. Batson v. Kentucky In Batson, the Supreme Court reiterated the well-settled principle that the Equal Protection Clause prohibits discrimination on account of race in selection of both the venire and the petit jury. See 476 U.S. at 88, 106 S.Ct. 1712. This principle, which dates back at least as far as Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879), recognizes that racial discrimination in the selection of jurors harms “not only the accused whose life or liberty they are summoned to try,” but also harms the potential juror, whose race “is unrelated to his fitness as a juror.” Batson, 476 U.S. at 87, 106 S.Ct. 1712 (quotation omitted). As the Court noted in Batson, “[selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Id. The Court granted certiorari in Batson so that it could reexamine the evidentiary burden its opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), had placed on a criminal defendant who alleged that the State improperly used its peremptory challenges to exclude jurors based on race. In Swain, the Court had held that a defendant could satisfy a prima facie case of purposeful discrimination by showing that a prosecutor, “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries.” Id. at 223, 85 S.Ct. 824. The Batson Court noted that many lower courts interpreted Swain to hold “that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause.” Batson, 476 U.S. at 92, 106 S.Ct. 1712. The Court in Batson recognized that this standard had “placed on defendants a crippling burden of proof’ that resulted in “prosecutors’ peremptory challenges [becoming] largely immune from constitutional scrutiny.” Id. at 92-93, 106 S.Ct. 1712 (footnote omitted). Accordingly, it rejected the Swain eviden-tiary formulation. In the jurisprudence that has evolved following Batson, the inquiry has been characterized as a three-step one. Batson stated that “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. Once the defendant makes a prima facie showing of racial discrimination (step one), the prosecution must articulate a race-neutral explanation for its use of peremptory challenges (step two). If it does so, the trial court must determine whether the defendant has established purposeful discrimination (step three). See id. at 96-98, 106 S.Ct. 1712; Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir.1995); Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir.1994). The ultimate burden of persuasion regarding racial motivation rests with, and does not shift from, the defendant. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). 3. Riley’s Batson Challenge in State Court In this case, the hearing judge determined, and the State does not contest, that Riley made out a prima facie case of discrimination in jury selection, as the. State had used its peremptory challenges to strike all three prospective black jurors from the venire, “result[ing] in an all-white jury sitting on a first degree murder trial involving a black defendant and a white victim.” Riley III, 1988 WL 130430, at *2. The hearing judge then conducted an evi-dentiary hearing. The State proceeded to step two of the Batson inquiry by offering race-neutral justifications for its use of the peremptory challenges to strike Ray Nichols, Lois Beecher, and Charles McGuire, each of whom was black. Liguori, the lead prosecutor at trial and the State’s principal witness at the post-conviction relief hearing, testified that the State “wanted to have minority representation on the jury panel.” App. at 792-793. He stated that he wanted jurors who would be attentive and who would vote for a death sentence. He testified that he wanted “to make sure we were not only going to get a conviction of murder in the first degree, but also the death penalty.” App. at 797. With respect to Nichols, Liguori remembered clearly that “Mr. Nichols was an individual who, and unfortunately the record doesn’t reflect this, who was not, in my particular mind, not certain with regard to being able to return a verdict for death.” App. at 797-798 (emphasis added). As Liguori explained, “there was a pause and a significant pause in [Nichols’] answering [the court’s] inquiry [at voir dire] and that to me was enough to suggest that he might not be able to return a death penalty and I didn’t want anyone that wasn’t going to give me a death penalty.” App. at 798-799. With regard to Beecher, Liguori testified that he struck her because of her response to the court that she did not think she could impose the death penalty. App. at 804. As for McGuire, Liguori explained that he used the peremptory challenge because he presumed McGuire would be unable to “give his full time and attention” to the trial. App. at 801. According to Liguori, Mr. McGuire was an individual who had requested — remember, this was going to be around Christmas also. Mr. McGuire had previously requested to be excused from jury service. When Mr. McGuire came up, the first thing I wanted to make clear — as I said earlier, I wanted someone that was going to be attentive and you can read all the books you want with regard to selecting prospective jurors and it is always make sure you have attentive jurors, people not concerned about getting home early to take care of their kids, or vacation. Mr. McGuire himself had requested the Court to excuse him. The Court didn’t. When he went through his inquiry, we asked the judge to excuse him for cause. The judge said no. It then left us with no alternative but to think he would not give his full time and attention and therefore we struck Mr. McGuire. App. at 801. On cross-examination of Liguori, Riley’s attorney introduced Liguori’s handwritten notes from voir dire. Written next to McGuire’s name was the word “Out.” App. at 832. Among the names on the same page was that of Charles Reed, a white man who actually served on Riley’s jury. Next to Reed’s name on the sheet was written, “works Lowe’s, wants off.” App. at 823. Despite repeated efforts by Riley’s counsel to refresh Liguori’s recollection, Liguori testified that he had no recollection of Reed whatsoever. Liguori agreed, however, that the notation next to Reed’s name indicated that Reed had requested to be excused from service on the jury. Liguori offered no explanation for his decision not to strike Reed. Riley then presented McGuire as a witness at the state post-conviction hearing. McGuire testified that, in contrast to Lig-uori’s testimony, he had never asked to be excused from the jury. McGuire specifically denied ever indicating to either the prosecutors or the court that he was unwilling to serve on the jury or that he wanted to be excused. Instead, he testified that his supervisor had told him that he was going to make a “formal request” that McGuire be excused and that his supervisor did send a letter to the trial judge requesting he be relieved from jury duty. App. at 860. According to McGuire, in response to his supervisor’s letter, he was questioned by the trial judge whom he advised of his willingness to serve on the jury. App. at 849-850. Riley also presented evidence that in addition to the prosecutor’s striking of the three prospective black jurors in his trial, the Kent County Prosecutor’s office used its peremptory challenges to remove every prospective black juror in the three other first degree murder trials that occurred within a year of his trial. Counsel for the State objected to the admission of this evidence, arguing that evidence of general prosecutorial practices was relevant only to Riley’s prima facie case. The hearing judge rejected this argument and admitted the evidence, explaining that it was being-offered to show that “the exercise of the peremptory challenges in this particular case followed some kind of pattern that exists in the prosecutorial actions in first degree murder cases involving minority defendants and it is not segregable or severable from past history.” App. at 872. Counsel for the State then requested and received an additional four weeks in which to “attempt to prepare the same sort of information which ... would be contrary to the representations made by [Riley’s counsel’s] information.” App. at 874. He informed the court that he had not yet been able to obtain materials from other cases, but he assured the court that “they do exist.” App. at 874. Yet approximately one month after the hearing, the State advised the hearing judge by a letter dated January 27, 1989 from Jeffrey M. Taschner, Deputy Attorney General, that stated in full: “Please be advised that the State will not supplement the record of the post conviction relief hearing held in the above-captioned matter on December 30, 1988.” Letter to this Court from Thomas J. Allingham II (Dec. 16, 1999), Ex. B (on file in the Clerk’s office). The hearing judge ultimately accepted the State’s race-neutral explanations and rejected Riley’s Batson claim, without mentioning any of the evidence introduced by Riley at the hearing. See Riley IV, App. at 887-891. The Delaware Supreme Court affirmed, likewise without discussion of Riley’s evidence. See Riley V, 585 A.2d at 725. 4. Standard of Review A Batson claim presents mixed questions of law and fact. See Jones v. Ryan, 987 F.2d 960, 965 (3d Cir.1993). We exercise plenary review over questions of law and we look to 28 U.S.C. § 2254 for our standard of review of findings of fact. See id. Riley’s federal habeas petition was filed before the enactment of the Antiter-rorism and Effective Death Penalty Act (“AEDPA”) of 1996, 110 Stat. 1214, and therefore AEDPA does not govern our standard of review. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Instead, under the federal ha-beas statute in effect at the time Riley filed his petition, we must presume correct the state court’s findings of fact unless one of the statutory exceptions applies. See 28 U.S.C. § 2254(d) (1988). The District Court rejected Riley’s Bat-son claim on the merits by relying on this presumption of correctness. See Riley VIII, 1998 WL 172856, at *17. Riley contends that the presumption of correctness is not warranted because the hearing judge’s factual findings are “not fairly supported by the record,” 28 U.S.C. § 2254(d)(8) (1988), and because he “did not receive a full, fair, and adequate hearing in the State court proceeding,” 28 U.S.C. § 2254(d)(6) (1988). Because we resolve Riley’s appeal pursuant to § 2254(d)(8), we need not consider Riley’s latter argument. The limited nature of review underlying the requirement that a federal court must defer to the state court findings of fact if they are “fairly supported by the record” reflects important policy considerations. See, e.g., Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (presumption of correctness recognizes that “as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue”). In Rushen v. Spain, 464 U.S. 114, 122 n. 6, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), the Court stated that “28 U.S.C. § 2254(d) requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations.” The Court further noted that the statutory test set forth in § 2254(d)(8) “is satisfied by the existence of probative evidence underlying the [state court’s] conclusion.” Id. In the instant case, it appears that the hearing judge’s factual findings were based primarily on determinations regarding the credibility of Liguori at the post-conviction hearing. Such findings are generally owed “even greater deference” because “only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712 (“Since the trial judge’s findings in [this] context ... largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.”). Still, this does not signify that “federal review ... is a nullity.” Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir.1998) (hereafter “Maloney”). In Purkett, the Supreme Court stated that “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” 514 U.S. at 768, 115 S.Ct. 1769. In addition, the Supreme Court has suggested, albeit in a non-habeas context, that reviewing courts need not accept a trial judge’s findings based on credibility determinations if the witness has not told a “coherent and facially plausible story” or if his story is “contradicted by extrinsic evidence.” Anderson, 470 U.S. at 575, 105 S.Ct. 1504. Thus, we must determine whether there is fair support to conclude that the State put forth “a coherent and facially plausible” explanation of its strikes of the prospective black jurors or whether the State’s explanations are “implausible.” Ultimately, when we review the record at step three of the Batson inquiry, we must decide whether the state courts’ acceptance of the State’s explanation has been made after consideration of all the evidence on the record. 5. State’s Race Neutral Explanations At the post-conviction hearing, the State proceeded to step two of the Batson inquiry by offering race-neutral reasons for striking the black jurors. It did so primarily through Liguori’s testimony. Riley does not argue that the State failed to meet its step two burden. His contention is that the state courts failed to engage in the step three inquiry, which requires evaluation of the proffered race-neutral reasons in light of all the other evidence in the record. Liguori contended he struck Nichols because he doubted whether Nichols would be willing to return a death sentence. He based this doubt on his clear recollection of “a significant pause” by Nichols when asked about the death penalty. App. at 798. Yet, as Liguori himself admitted in his testimony, the record reflects no such pause and no such uncertainty on Nichols’ part. At voir dire, Nichols had answered the two questions posed by the court regarding the jurors’ willingness to sentence a defendant to death in a manner seemingly favorable to the prosecution: Q: Do you have any conscientious scruples against finding a verdict of guilty where the punishment might be death or against imposing the death penalty even if the evidence should so warrant? A: No. Q: Regardless of any personal beliefs or feelings that you may have, if the evidence justified it, would you be able to find a person guilty of murder in the first degree and would you be able to impose the death penalty. A: I think so. App. at 226-227. A prospective white juror, Angelo LePore, provided the exact same answers to the court’s questions, yet he was not stricken and actually served on Riley’s jury. App. at 231-282. The record provides no basis for distinguishing Nichols from LePore. Moreover, despite Nichols’ alleged pause, the prosecutors did not ask the trial court to remove Nichols for cause or to inquire further into his willingness to award the death penalty, even though the trial judge excused six venirepersons for cause because they said they couldn’t, or believed they couldn’t, impose the death penalty, App. at 234-237, 245-246, 265-271, and two more who responded equivocally, App. at 273-276, 282-286. This raises the question why, if Nichols actually did pause “a significant pause,” the State did not seek to have him removed for cause like the others. The record does not show (and the State does not claim) that the prosecutors ever expressed to the trial court the concern that Nichols would be unwilling to impose the death penalty, that the court independently expressed concern, or that any of the contemporaneous notes kept by the prosecutors as to some of the jurors reflected either the existence of a pause or the concern about which Liguori testified six years later. Thus, Liguori’s explanation is entirely unsupported by the record. See Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir.1993) (stating that courts are not bound to accept race-neutral reasons that are either unsupported by the record or refuted by it). Similarly, the record offers little basis for distinguishing McGuire, a prospective black juror who was struck, from Reed, a white juror who served without challenge by the State. Liguori testified that he struck McGuire because McGuire asked to be excused from jury service and he feared that McGuire would be an inattentive juror. Liguori, who claimed to remember Nichols’ pause six years later without benefit of any assistance, testified that he had no recollection at all regarding Reed. Lig-uori’s notes from voir dire, however, state that Reed “works Lowe’s, wants off,” App. at 823, which strongly suggests that Reed too was likely to be an inattentive juror. Yet at no point during voir dire did the prosecution ever express any concern over Reed’s place on the jury. Based on this record evidence, there is no basis for distinguishing between McGuire’s desire to be excused and Reed’s desire to be ex-' cused. Although the State strains to distinguish the two jurors by arguing that McGuire’s desire to be excused from jury service was stronger than Reed’s desire because McGuire’s employer had intervened to seek his release, its effort is not persuasive. First, Liguori did not testify before the hearing judge that this was the basis for the strike; in fact, Liguori testified to the opposite — that McGuire himself had asked to be excused from jury service. Second, even if McGuire would have been inattentive for work-related reasons, the prosecution’s notes from voir dire connecting Reed’s employment to his “wants off’ suggest that Reed’s desire to be excused from jury service may have been work-related as well. Third, there is no evidence in the record to suggest that a juror will be more inattentive because s/he wants to be off the jury for work-related reasons rather than for other reasons, which is the basis for the State’s position that McGuire’s desire to be excused was stronger than Reed’s desire to “want[ ] off,” documented in Liguori’s contemporaneous notes. With regard to both Nichols and McGuire, the state courts failed to mention in their opinions the weaknesses in the State’s explanations, and therefore failed to complete the required step three Batson inquiry. 6. Statistical Evidence In addition to Riley’s challenge to the State’s explanations at the post-conviction hearing for striking Nichols and McGuire by pointing to inconsistencies in the record, Riley introduced evidence that the prosecution used its peremptory challenges to strike every prospective black juror in the three other first degree murder trials occurring in Kent County within one year of Riley’s trial. It did so both for the other black murder defendant and the two white murder defendants. In these four trials (including Riley’s), the prosecution struck all 8 prospective black jurors who were called, i.e., 100%. By contrast, the prosecution used its peremptory challenges to strike only 23 of the 71 prospective white jurors, or 32%. After the prosecution used its peremptory challenges to strike 23 whites, 8 blacks, 1 Indian, and 2 jurors of unidentified race, the remaining racial makeup of the actual jurors in the four trials was 48 white jurors. See Letter to this Court from Thomas J. Allingham II (Dec. 16, 1999), Ex. A (on file in the Clerk’s office). An amateur with a pocket calculator can calculate the number of blacks that would have served had the State used its strikes in a racially proportionate manner. In the four capital cases there was a total of 82 potential jurors on the venires who were not removed for cause, of whom eight, or 9.76%, were black. If the prosecution had used its peremptory challenges in a manner proportional to the percentage of blacks in the overall venire, then only 3 of the 34 jurors peremptorily struck (8.82%) would have been black and 5 of the 48 actual jurors (10.42%) would have been black. Instead, none of the 48 jurors were black. Admittedly, there was no statistical analysis of these figures presented by either side in the post-conviction proceeding. But is it really necessary to have a sophisticated analysis by a statistician to conclude that there is little chance of randomly selecting four consecutive all white juries? The State never argued before the hearing judge and does not argue before this court that the selection of four consecutive all white juries could have been due to pure chance. Nor does it suggest that Riley’s evidence does not accurately represent Kent County prosecu-torial practices. Moreover, not once has the State offered an explanation for its use of peremptory challenges to strike all prospective black jurors in the four consecutive capital cases. The State has never sought to explain the data by variables other than race. Nor has it sought to rebut Riley’s evidence. The failure of the State to produce evidence from other trials is significant because it was the State, not Riley, that would have had access to such evidence, it was the State that asserted that such evidence was available and forthcoming, and it was the State, not Riley, that failed to provide it. Yet again, neither the hearing judge in his opinion nor the Delaware Supreme Court discussed Riley’s evidence that showed the systematic exclusion of blacks from the petit juries in Delaware. In fact, having stated that this evidence was introduced to demonstrate that “the exercise of the peremptory challenges in this particular case followed some kind of pattern that exists in the prosecutorial actions in first degree murder cases involving minority defendants,” App. at 872, the hearing judge discussed neither the statistics nor the State’s failure to explain them. Thus, once again by overlooking and ignoring a significant segment of Riley’s evidence, the hearing judge’s opinion does not satisfy the crucial third step of the Batson analysis. 7. Analysis At the conclusion of the evidentiary post-conviction hearing, the hearing judge issued a written opinion in which he addressed the prosecutors’ reasons for striking the three black jurors, as required by step three of the Batson inquiry. He stated: The State in this ease provided race-neutral explanations for the peremptory challenges on all three black jurors. After examining the demeanor and credibility of the witnesses and prosecutors at the evidentiary hearing, I believe the State exercised its peremptory challenges entirely within the strictures of the Fourteenth Amendment. No factual basis exists for a successful claim of an equal protection violation. The State successfully rebutted any prima facie showing of discrimination in jury selection based upon race. Riley IV, App. at 890-891. This determination that the prosecutors did not intend to discriminate on the basis of race in exercising their peremptory strikes against the three challenged jurors is a factual finding entitled to a presumption of correctness unless one of the exceptions in § 2254(d) (1988) applies. See Hernandez v. New York, 500 U.S. 352, 365-66, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The inquiry required by Batson must be focused on the distinctions actually offered by the State in the state court, not on all possible distinctions we can hypothesize. See Mahaffey v. Page, 162 F.3d 481, 483 n. 1 (7th Cir.1998) (concerning itself with actual reasons, not apparent ones, for state’s use of peremptory challenges); Turner v. Marshall, 121 F.3d 1248, 1253 (9th Cir.1997) (“The arguments that the State has made since the evidentiary hearing do not form part of the prosecutor’s explanation.”). Apparent or potential reasons do not shed any light on the prosecutor’s intent or state of mind when making the peremptory challenge. As to both Nichols and McGuire, the hearing judge merely repeated Liguori’s articulated explanations without any reference to, or analysis of, Riley’s evidence of pretext and seems to have accepted the State’s justifications at face value. „ Liguori simply testified that he struck McGuire because he would be inattentive at trial, and for no other reason, a justification that would apply equally to Reed. The State gave no explanation as to Reed other than Liguori’s plain lack of memory. Cf. Harrison v. Ryan, 909 F.2d 84, 87 (3d Cir.1990) (concluding that prosecutor’s failure to recall his reason for striking prospective juror did not constitute a race-neutral explanation). And the credibility of Liguori’s lack of memory is somewhat in doubt considering that he claimed to remember Nichols’ “significant pause.” The only distinction between the two jurors that is apparent from the record is that McGuire, who was struck, is black; Reed, who was retained, is white. A comparison between a stricken black juror and a sitting white juror is relevant to determining whether the prosecution’s asserted justification for striking the black juror is pretextual. See McClain v. Prunty, 217 F.3d 1209, 1220 (9th Cir.2000) (“A prosecutor’s motives may be revealed as pretextual where a given explanation is equally applicable to a juror of a different race who was not stricken by the exercise of a peremptory challenge.”); Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir.2000) (“Support for the notion that there was purposeful discrimination in the peremptory challenge may lie in the similarity between the characteristics of jurors struck and jurors accepted. Where the principal difference between them is race, the credibility of the prosecutor’s explanation is much weakened.”); Maloney, 159 F.3d at 653 (“[A]s a general matter, comparisons between challenged jurors and similarly situated, unchallenged jurors of a different race or gender can be probative of whether a peremptory challenge is racially motivated.”); Coulter v. Gilmore, 155 F.3d 912, 921 (7th Cir.1998) (“A facially neutral reason for striking a juror may show discrimination if that reason is invoked only to eliminate African-American prospective jurors and not others who also have that characteristic.”); Turner, 121 F.3d at 1251-52 (“A comparative analysis of jurors struck and those remaining is a well-established tool for exploring the possibility that facially race-neutral reasons are a pretext for discrimination.”). The comparison between McGuire and Reed is strongly suggestive of the State’s race-based use of its peremptory challenges. See, e.g., McClain, 217 F.3d at 1224 (concluding that Batson was violated where two of six proffered race-neutral explanations were “pretextual based upon comparisons of voir dire responses by non-black jurors who were seated without objection by the prosecutor,” and other four were contrary to the facts); Turner, 121 F.3d at 1253-54 (holding that the district court clearly erred in finding that prosecutor did not discriminate in jury selection where sole justification offered for striking a black juror applied equally to non-stricken white juror); Devose v. Norris, 53 F.3d 201, 205 (8th Cir.1995) (concluding that Batson was violated where the only justification prosecutor offered for striking three out of four prospective black jurors with prior jury experience was that they might be “burned out” by prior service and where at least five white jurors were not stricken although they had previously served on juries); Jones v. Ryan, 987 F.2d 960 (3d Cir.1993) (rejecting the prosecutor’s proffered race-neutral explanation for striking black jurors where the prosecutor did not apply the same rationale to similarly-situated white jurors); Garrett v. Morris, 815 F.2d 509, 514 (8th Cir.1987) (“The prosecutor’s rationale [for striking three black jurors] — the blacks’ purported lack of education, background, and knowledge — seems clearly pretextual in light of his decision not to strike white jurors who differed in no significant way”). Nichols’ answers as to his willingness to return a death sentence were the same as LePore’s, and were it not for Liguori’s testimony as to the suspect “significant pause,” there would be no significant difference between them as well, except, of course, that Nichols, who was struck, is black and LePore, who was retained, is white. Furthermore, each piece of evidence should not be reviewed in isolation. It is clear that “[a]n explanation for a particular challenge need not necessarily be pigeon-holed as wholly acceptable or wholly unacceptable. The relative plausibility or implausibility of each explanation for a particular challenge ... may strengthen or weaken the assessment of the prosecution’s explanation as to other challenges.” United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991). In short, “[a] reviewing court’s level of suspicion may ... be raised by a series of very weak explanations for a prosecutor’s peremptory challenges. The whole may be greater than the sum of its parts.” Maloney, 159 F.3d at 651. It is in this connection that we must turn to the statistical evidence presented by Riley of the pattern of the State’s use of its peremptories. It may be that such evidence, standing alone, would not be sufficient to show intentional discrimination in selection of juries by the Kent County Prosecutor’s office in the year in question. It is, however, particularly troublesome because the State failed to provide the rebuttal data as to Riley’s evidence when given the opportunity which it requested. In that circumstance, an inference adverse to the State may fairly be drawn. As has been recognized, “[w]here relevant information ... is in the possession of one party and not provided, then an adverse inference may be drawn that such information would be harmful to the party who fails to provide it.” McMahan & Co. v. Po Folks, Inc., 206 F.3d 627, 632 (6th Cir.2000) (quotation omitted). Indeed, the Supreme Court has stated, “The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse.” Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 83 L.Ed. 610 (1939). Accordingly, the State must accept the negative inference that flows from its failure to provide the rebuttal data, and that inescapable inference is that the Kent County Prosecutor’s office did not want blacks on its juries in first degree murder cases. The Supreme Court in Batson recognized the significance of evidence of systematic exclusion of blacks in jury selection. It stated, “Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the ‘result bespeaks discrimination.’ ” Batson, 476 U.S. at 94-95, 106 S.Ct. 1712 (quoting Hernandez v. Texas, 347 U.S. 475, 482, 74 S.Ct. 667, 98 L.Ed. 866 (1954)). It likewise recognized the relevance of systematic exclusion of blacks from the petit jury. See id. at 96-97, 106 S.Ct. 1712; see also McClain, 217 F.3d at 1224 (finding that “the fact that all blacks in the venire pool were struck raises an inference of discrimination” where 3 of 39 people in venire pool were black). On the record before us, it is difficult to avoid drawing the inference that the Kent County Prosecutor followed a pattern of using peremptory challenges in a racially discriminatory manner. Despite the State’s efforts to explain away the various parts of the evidentiary picture Riley has presented, the record as a whole squarely contradicts its position. The questionable nature of Liguori’s explanations for the strikes of McGuire and Nichols must be evaluated not only in light of the uncontested evidence of the use of peremptory strikes in Kent County but also in light of the nature of the State’s pre-Batson defense on direct appeal. When Riley’s direct appeal came before the Delaware Supreme Court in 1984, the State justified the use of race in selecting jurors in criminal trials. On that occasion, which was the State’s first opportunity to defend the use of its peremptory challenges in Riley’s trial, the State did not offer a single race-neutral explanation, not even as an alternate argument; instead, it claimed that it was permissible — even socially desirable — to exclude jurors based on what it called “group association,” App. at 896, which a Justice of the Delaware Supreme Court was reported to have recognized as a “euphemism for race,” App. at 1321. In its brief to the Delaware Supreme Court, the State interpreted Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), as “recognizing] how peremptory challenges, even those exercised on the basis of group association, foster the constitutional goal of an impartial jury.” App. at 896. The State added in a footnote that it “emphatically denies that the prosecutor [in Riley’s case] exercised any of his challenges solely on the assumption that the juror’s race, in the context of the facts of this case, indicated a verdict position adverse to the prosecution. Rather, the State will argue that even if such was the case, no constitutional command would have been contravened.” App. at 896 (emphasis added). Before this court, the State contends that Swain was “good law” at the time, so reliance on that case cannot be viewed as a concession that some of its peremptory challenges may not have been race-neutral. Tr. of Oral Argument at 31. Yet, significant for purposes here is that in response to Riley’s challenge to its use of perempto-ries, the State never denied on direct appeal that race played a role in its use of peremptory challenges; it only claimed that it did not exercise them solely based on race. Its justification for that practice certainly suggests that race was at least a partial basis for its use of peremptory challenges. And that suggestion further supports the conclusion we are led to by our earlier analysis of the record that the State’s proffered race-neutral explanations are pretextual. The requirement that we defer to the State’s findings of fact does not apply when those findings are not supported by probative evidence. The State’s position is that under § 2254(d) “all that is required” is that the state court make findings of fact, and flatly states that because the hearing judge did so, we must defer. Tr. of Oral Argument at 41. Although the State concedes that we must concern ourselves under Rushen, 464 U.S. at 121 n. 6, 104 S.Ct. 453, with whether there is probative evidence in the record to support the state court’s findings, it then seems to argue that since the findings are primarily based on credibility determinations, the mere fact that Liguori testified is sufficiently probative to support these determinations. Certainly it is not required that a federal court should defer to a state court’s findings of fact on habeas review as long as the state court accepted the prosecutor’s race-neutral explanation, no matter how incredible, contradicted, and implausible it may be. On the contrary, several courts of appeals have acknowledged that the traditional level of deference should not govern appellate review when a prosecutor’s explanations are obviously not credible. See McClain, 217 F.3d at 1221 (“ ‘[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’ ”) (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769); United States v. Griffin, 194 F.3d 808, 826 (7th Cir.1999) (noting that a basis for reversal of state court exists where “the reason given [by the prosecutor] is completely outlandish or there is other evidence which demonstrated its falsity”); Maloney, 159 F.3d at 651 (stating that serious questions of pretext arise when the facts in the record are “objectively contrary to” the prosecutor’s explanations). In light of the lack of probative evidence in the record to support the findings that the State exercised its peremptory challenges at Riley’s trial in a race-neutral manner, we decline to give these findings deference. Such deference is ordinarily based, at least in part, on the original trial court’s ability to make contemporaneous assessments. See Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. 1859. Recently, the Court of Appeals for the Fourth Circuit deferred to the state court’s findings on a Batson claim precisely because the court had that opportunity. It explained, Indeed, it would be an impermissible exercise in hindsight for us now to upset the trial court’s credibility determination in evaluating the prosecutor’s explanation. And as the district court correctly observed, the ‘retrospective parsing of the ‘curricula vitae’ of the jurors’ is no substitute for the observations of the trial judge, who witnessed first-hand the process. We simply cannot overlook the fact that the trial court had conducted an extensive voir dire of the jury pool, which was documented in several hundred pages of trial transcripts, and was able to observe the demeanor and hear the responses of the prospective jurors in court. This insight enabled the trial court to compare the prosecutor’s explanation with what occurred at the bench and in open court. Most significantly, the trial court was able to observe the prosecutor’s demeanor and conduct and evaluate the credibility of his explanation. Evans v. Smith, 220 F.3d 306, 316 (4th Cir.2000) (emphases added). It may be that because the findings at issue here wer.e made by the hearing judge six years after the State had exercised its peremptory challenges before the trial judge and the hearing judge neither witnessed the challenges first-hand nor examined the witnesses at the time the challenges were exercised, he did not note or comment on some of the troublesome inconsistencies in the State’s race-neutral explanations. Deference in a Batson case must be viewed in the context of the requirement that the state courts engage in the three-step Batson inquiry. As the Court of Appeals for the Fourth Circuit described step three: “If [the State’s] burden [under step two] is met, the court then addresses and evaluates all evidence introduced by each side (including all evidence introduced in the first and second steps) that tends to show that race was or was not the real reason and determines whether the defendant has met his burden of persuasion.” McMillon, 14 F.3d 948, 953 n. 4 (4th Cir.1994); see also Jordan, 206 F.3d at 200 (stating that step three of Batson inquiry requires examination of “all the facts and circumstances”) (quotation omitted). Here, the state courts failed to examine all of the evidence to determine whether the State’s proffered race-neutral explanations were pretextual. Not only is there no indication on the record that the hearing judge engaged in the required analysis, but there is no indication that the Delaware Supreme Court did so, by making findings which also would have been entitled to deference. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The omission of the crucial step of evaluating the State’s proffered explanations in light of all the evidence can be gleaned by the absence of the word “pretext” in both the opinion of the hearing judge and in the opinion of the Delaware Supreme Court. Nor is there any language in either opinion that suggests, whatever the words used, that either court recognized the nature of the analysis it was required to undertake. In Jones v. Ryan, we noted that the state court decision rejecting a Batson claim contained no factual findings relating to the different prongs of the Batson analysis, to which we could accord a presumption of correctness. See 987 F.2d at 965-66. The situation before us is similar. The State argues that our concern with the hearing judge’s failure to discuss critical evidence in his decision is merely a complaint about the manner in which he wrote his opinion. It states in its supplemental brief that “[i]t may well have been better for the state judge to have further explained his decision ... [b]ut the federal habeas statutes do not set standards for the writing of opinions by state judges.” Supp. Memo, of Appellees at 7. But the concern is not how the decision was written, a trifling matter. It is the failure of the state courts to complete the required Batson analysis by comparing the stricken black jurors with the sitting white jurors, acknowledging the statistical evidence of striking all black jurors in capital murder cases in Kent County within a year of Riley’s trial, and recognizing the State’s position in this very case that use of peremptories for racial reasons was both constitutional and socially beneficial. Comparable to the case before us is the decision in Coulter v. Gilmore, 155 F.3d 912 (7th Cir.1998). There the court acknowledged that deference is owed to the state court findings under § 2254(d), but rejected those findings and refused to apply the presumption of correctness because “the state judge made those findings without ever taking into account the totality of the circumstances on the record.” Id. at 920. It noted that Batson requires “that, one way or another, a trial court ... consider all relevant circumstances before it issues a final ruling on a defendant’s motion.” Id. at 921. In a compelling statement of the court’s role under step three of the Batson inquiry, the court wrote: In light of the deferential standard of the post-AEDPA § 2254 and the perfunctory quality of the second step of a Batson inquiry after Purkett v. Elem, it is more important today than ever that the Batson inquiry not omit consideration of the totality of the circumstances, both for itself and as it relates to the evaluation of similarly situated potential jurors.... Under the pre-AEDPA standards that apply here, we agree with the district court that [defendant’s] rights under Batson were denied. Id. at 921-22. The state courts in this ease rejected Riley’s Batson claim without discussing any of the ample evidence that throws into question the explanations offered by the prosecutor for striking two of the black jurors and there is nothing relevant in the record that might otherwise support the state courts’ decisions. Thus, we do not know why the state courts found the State’s explanation was plausible and credible in light of the other evidence. It is because of the state courts’ omission of a requirement under the third step of the Batson inquiry — of an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances— that the State’s argument founders. We cannot avoid noting that Batson was not a death penalty case. This is. If the State failed to accord Riley his constitutional right to a jury selected on a race-neutral basis, we must not shirk to so hold. As Riley’s lawyer asked at oral argument, “If not this case, what case? If the evidence in this case is insufficient to show that the prosecutors’ race-neutral rationales were pretextual, what case, short of a prosecutorial mea culpa would do the job?” Tr. of Oral Argument at 3. After consideration of all the arguments and the record, we are compelled to conclude that the prosecution violated Riley’s constitutional rights under Batson, and that Riley is entitled to relief. 8. The Dissenting Opinion — The Bat-son Issue It is fitting to discuss the Dissenting Opinion at this point because our difference with the Dissent is most acute in our respective views of the requirements of step three of the Batson inquiry. Although the Dissent takes issue with much of the majority opinion, its principal argument is that in a habeas case the federal court must defer to the state courts’ findings, in this case the finding that the prosecutor did not use the State’s peremptory challenges striking black jurors in a manner that violated the principles of Batson. We have already discussed in detail when a state court’s findings are entitled to deference and when they are not, focusing on the exception in § 2254(d)(8) for the situation where the state court’s findings are “not fairly supported by the record.” See supra Part II.A.4 (Standard of Review). It is manifest that a finding that Batson has been satisfied must be made in accordance with the process enunciated in that case. The Dissent agrees that under step three of the Batson inquiry a judge or court must consider “all of the relevant evidence that has been adduced.” See Dis. Op. at 321. As we previously discussed, the courts after Batson have described step three as requiring the judge or court to examine the prosecutor’s proffered reasons for striking the minority jurors against the evidence presented by the defendant and/or the weaknesses in the prosecutor’s reasons. See, e.g., McMillon, 14 F.3d at 953 n. 4; Jordan, 206 F.3d at 200. The Dissent sees no reason to believe that the Delaware courts did not do so in Riley’s case, even though the opinions of the Delaware courts rejecting Riley’s Batson challenges never commented on the weaknesses in the State’s case or, even more important, never acknowledged that there was a step th