what the district court did here was incorrect essential what the district court said was that the prosecutor's inability to articulate a race neutral reason for three of his strikes some twenty years after articulate credible reasons well the three step process your honor is a means of presenting evidence it is not meant as a procedural trap and the supreme court has been very clear in johnson versus california which i cited in our brief that that the inability to even articulate any reste race neutral reason at step two does not end the process the burden never shifts from the person making the batson claim and if the prosecutor or whatever that were the challenge lawyer may be can't articulate a reason even while trial is happening all that is is evidence of and find out how even assuming the sarcasm it could be neutralized that is when rogers got up and said he's breaking all the blacks and carpenter says or how awful so you take the how awful comment he obviously this is in context with the times though it's not quite as damning as it would sound in retrospect but you take how awful you got to fifteenth like the year two sides against blacks and then you've got the d a not being able to recall any race neutral because if it various reasons your honor and number one that the record shows that mr carpenter accepted least form probably five african american jurors four of whom sat and heard this case on the record also also shows the strike rate looked on as its own could raise an inference of discrimination but that well well past that i mean at this point the only thing left is whether or not you can say or the petitioner can carry his burden of doesn't seem to move much when he struck probably fifteen well your honor a couple of things first of all the idea that he could have if he that he the possibility that he beginning of the process i mean it's just that's number one number two i don't disagree with you and we've had this discussion before in other cases i don't think i've been very clear i don't disagree with you that all it takes is one strike but the question is how do you prove discrimination well i think they're threshold issues your honor number one does the district court should never have held a hearing in the first place because of the lack of contemporaneous objection and the failure to develop a record in state court  and i think it's appropriate for this courts to direct the district courts to dismiss the petition because it was not appropriate for the record to be developed any further in federal court if the court this quote chooses not to do that and holds as i think it has to go any further i think this court has to hold that it was appropriate to hold if an evidentiary hearing in federal court even despite the lack of a full record if we get to that was one cleaner i think this court would have to hold i'm saying as a matter of instructions that you know it's not appropriate to stop the inquiry at step two of the bateson test that that's since instructions at all relevant circumstances have to be taken into consideration work for the party not simply for the party making the claim but the party defending the claim and that is so that the district court would have to take into  five african americans and all of that should be assessed with with the understanding or under that the overarching principle that the petitioner mr lark has always carries the burden and if there is a difficulty with the passage of time in a case like this it's necessary for him to overcome that is it is it would it be proper for the court of appeals to make that assessment i guess i skipped a step my first step would be that this court could look at the record say as a matter of law this isn't enough to overturn a twenty six year old trial could we really say as a matter of law that that's because i think it's as a matter of watching it's kind of easier to see how a petitioner wouldn't be able to carry his burden and this at this stage rather than how as a matter of law we could not disprove discrimination it is what i think that's a tougher burden for him and for me before the problem is that that's in had not been decided at the time of trial that's and came down while the the judgment still wasn't final because on direct appeal so in all these cases we have to go back and do the best we can to reconstruct i think what we have to come away from that with is a respect that the passage of time is going to make things more difficult and that's even more reason to apply the general batson principle that all circumstances objective and subjective have to be taken into account because it at this point applying and i've made this argument you know in this brief in another brief of the three step process and even really apply in cases like this because it's a means of presenting evidence and at this point we really should just be arguing about whether or not on the record as it stands  assume that we we think that the matter should go back what are the factors that the that the district court should consider that the district court did not consider  the two step and making his determination at the end of stage two well your honor as i read the district court's opinion i don't think the court actually considered anything any fact in reaching its ultimate decision there were a number of findings of fact but i think they did not lead to the final decision which the the district court simply said there's no articulation of a race neutral reason therefore you lose i so i think almost the entire factual record is now up for review what are the what are the points that you would emphasize well as i was saying before that you know that number one that there are race which reasons apparent in the record both testified to by mr carpenter and you know independently of that mr carpenter's acceptance of of for five african american jurors his  far less suspicious exclusion rate which this court held in a boojum all was was relevant i should also say though that with respect to the lack of contemporaneous objection and three challenges being the time the trial occurred da could exercise room to each own just based upon a racial motive as long as the entire panel wasn't precluded under screamin that basically what roger retroactivity that prevents new claims from being made is the requirement that an objection be made at the record be preserved to take advantage it's a it to take advantage of new law it's a settled principle that you still have to make an objection sometimes you know to say he didn't he said i think the prosecutor is using is exercising his challenges in this your term matter he didn't specifically say and therefore i have no i'm not it's not at all a magic words thing first of all number one the only thing only time he raised any kind of problem at all was with respect to for jurors he said specifically i'm not saying what happened yesterday was was and you know and he never raised it again and his discussion of it and i'll read it he says can we have the names from the last panel preserved and i'll do whatever i have to do determine what sex what what race they are i'm asking you to give some aid in preserving the records in this courtroom so i can make a challenge if i find that to be the case he did not make the challenge i'm not faulting him for it but to read the transcript in this case that these two lawyers were so sarcastic to each other and we went into this is the evidentiary hearing below you know what one point mr rogers know judge rogers said to mr carpenter john you're not as stupid as you look at no time mr carpenter said when mr ryder said i'm going to be looking at what you do with respect i think it was to the bats and or to this thing he said on scared to death actually no wasn't it wasn't about him something else he said i'm scared to death the two of them you know it's not they didn't cover themselves on with respect to their sarcasm and mr carpenter testified about that but if you he clearly was not admitting that he had struck the blacks because he had and the only thing that was said at that point was that those i'm not saying before me see the records and i'll object some other time you're correct except saying that that would take out of the equation the jurors to whom he didn't object now remember of the three jurors that the district of relief on two of them were not in those group of four only one mr sista so you know even if your honor is correct and this was an actual objection that asked the district court to do something other then preserve records which no one really i don't even know what it means mr carpenter said well that's what the snog refers for and that was sort of the end of it if you're correct that that there was a natural objection would only be one one of those for mr cisco and there are talk about carpenter's general approach to strikes and he said that he's concerned about one of them was the age one of them had two young kids against it in seventeen one of them live too close to the crime scene the problem  with i think one of them had a background in mental health and you concerned about that which is understandable the problem with that is in this is what the case is also yes with that and what you have to do is go through the record with all of our gear to make sure that there were one of the wagers may have had a similar kind of social service in the whole background and kids that was allowed to sit in without having that calculus you really can't get a handle on it and they're poor i'm not sure that helps that much to say that there were reasons on the record for allowing the strikes as to some of the blacks that were that he was arguing about well i would disagree with you to show chief judge mickey in that the court is obligated to do these jerk comparison type things where in fact is as i see it now we made this argument where the compare those two types of comparisons were not made in state court in fact i think the federal court is precluded from doing that and  cite a number of cases in snyder vs louisiana from the u s supreme court it's true that the court did some comparisons there and and has in other cases but the court warned that comparisons may be very misleading and it allowed  itself to make the comparison only because specifically the state supreme court had itself made a comparison and the characteristic was the really explored by the trial court the the problem is and this is something that i see to a fault argument and he did ask for prosecutor a and b there were three african americans on the jury we didn't hear anything about the other jurors who the prosecutor rejected or accepted and the number three was actually wrong  diligence or default mean something significant it would mean that at that point it's not the rule that prevented them from making a profit was it was you know a lack of investigation i'm faulting them for doing for not doing that but but sending out an investigator as they did before they went to federal court is something that was something they could have done i also want to say really briefly about the comparison thing and this is something that's common to all equal protection tases that if you put if you mean to prove discrimination through the use of comparisons whether two people at a workplace under title seven or anything else there's a requirement that they be similarly situated that beyond the one characteristic now what we have here is this is just one example from this case that you know we one thing that mr carpenter said was that young people he kind of viewed with some suspicion as compared to older people you know the idea the way to that scene you know it's might have argued with you a few years ago if you don't mean something to so you have young to two young people one who was struck and the other was not struck now you can say that the difference between the two was race but you could also say the difference between the two was that one of them had a father in law who was a cop that's not similarly situated that's as a as a matter of equal protection law that's not proof so in other words comparisons can be made when they've been timely raised they can be made when they're carefully made but on this on this record having them these arguments not having been raised in state court and and the lack of sort of similarly situated analysis here that's one thing by the way that if you did we man to the court that instruction of that carpenter's the scotian we can argue we could argue from the record we already did argue from the record frankly i'm not sure what else there could what else is missing but you know that would be up to the district court but i don't think we need record setter well right if again if if we the appellant's lost on every other ground and got to that point judge greenberg i would agree that that is sort of where we need to go and i would say that that it's not a stage three case it's simply a stage is out the window case that now you just described decide discrimination the three step process at this point is only confusing things now we just have to decide whether the petitioner has comprehensive determinations but i don't think that's necessary and i don't think judge bit of it was wrong judge could over recognized when you read his opinion that step two of the backs of the giving of reasons was simply a burden of production he said that he recognized that but the burden of proof of discrimination never shifted from the defendant and that throughout it the defendant had the burden to prove discrimination he said and so when he got to step two and mr carpenter was unable to give reasons as to three jurors and the law is very clear johnson it and i don't disagree with that judge greenberg i think there's a lot of truth in what you say that you have to give him leeway because of the time just as i think the time cuts both ways it's harder for the defense to rec of i'll get to the second part of that in a second i think you're correct that by itself the failure to state reasons does not automatically give you batson really but i think you take that failure and the weight that you give it of fifteen not that that matters is that thirteen out of fifteen peremptory strikes which is where did i say twelve not that it matters used against african american jurors that's a strike rate of eighty six percent against african american j compared to striking only to using two as fifteen strikes against kazan jurors that's a rate against caucasian jurors of i think thirteen percent over six point seven times more likely to strike african american if you look at his acceptance rates he accepted four of seventeen african american jurors only twenty three percent although he made choices he had twenty nine african him he had twenty nine jurors who he could accept or reject seventeen of whom were black so so only four of the seventeen he accepted but he accepted ten of twelve of the white jurors who were before that's an acceptance rate of seventy five or eighty percent so his it i you have a very high strike rate against african americans a very low acceptance rate a very high acceptance rate of white people you have mr carpenter and let's take the sarcastic oh how awful we can take the sarcasm out of it he doesn't deny that discussion between mr rogers and the judge and mr carpenter where i think i think it's page six sixteen of the appendix around there that discussion goes on from like eight six eleven to six sixteen where he says i'm not systematically striking i left three i have three on that should answer the question so so he doesn't deny that he's using individual strikes against black jurors as he was allowed to do at the jurors and he says that's enough to prove the burden of discrimination to prove a batson violation that's sufficient for you to affirm without having to remain on for the comparative kinds of analysis and and possibly for the introduction of other evidence there was evidence we wanted to introduce before a judge but of a below we wanted to introduce the mcmahon tape and we wanted to introduce a statistical analysis of stripes to show the relationship the record that and what it's because what mr carpenter did as he didn't have a recollection of the particular jurors and he that he went through the notes of testimony he went through his personal notes and he tried to reconstruct what factors might have led him to strike certain jurors and what we see in that what we see and that is that the factors that led him to strike african american jurors weren't applied to caucasian  rely on or use the mcmahon tape and we're certainly not relying on it now but but i would point out one very interesting thing judge greenberg that strikes me about the mcmahon tape when when the man is training the young district attorneys he tells them that that these aren't rules and these aren't ideas that he made up and south he says that they came from the wisdom of the office what was passed down through conversation with older attorneys mr carpenter testified to the very similar things that the evidence you're hearing mr carpenter said he wasn't trained in how to take juries but he learned the folklore of the office the story is in the ideas that were passed out so so a lot and when you look  i'm sorry i don't buy it and we've already held even already held that you had and that's what i'm saying judge judge dover didn't rely on the mcmahon tape it's really not a part of this case in this appeal at this time it's something that could be considered for whatever weight it's worth if we go back to judge bit of a but it's not anything that i'm suggesting to you here but i did want to go back to the comparisons because my friend mr dalton that's mentioned you know that he said he didn't have like young people but there was a young person who he rejected and a young person he accepted but the young person he except that had a father in law in the police office who is a police officer there was a young black woman named lisa patton who  who lived at home with her parents was a full time student at emory university was working while she was home for the summer had an uncle who was a retired police captain and had another uncle who was an active police young white woman who was working part time and going to college i think if villanova so again when you look over and over again he says he says he was concerned about women with children around larks age because they might be more sympathetic to the defendant and yet it was only african american women with children around lark's age or with unknown age children who he struck and white women with children around lark's age he accepted he was concerned he wanted people who had jobs and stability in the community and yet there is a juror weena green who worked for the federal government her husband worked for the federal government as green was going to school two nights a week at st joe's they owned their own house they they were stable members of the community and yet she was struck and similarly situated people were not  says you have to be careful about the comparisons but but miller l miller l i think it's miller l two the second one recognizes that you're not going to get identical jervas you're not going to get jurors whose all their the comparisons are useful when you see a pattern of reasons that are being applied to african american jurors that aren't being applied to caucasian jurors and that what was going on over and over in any number of reasons and and they're listed in more detail in our brief that that reasons that he's using to accept african american jurors are to accept caucasian jurors aren't being applied to african american jurors reasons to strike african american jurors aren't being applied to caucasian jurors let me let me go back and address a couple of the other the the preliminary points the question of objection judge mickey you said what else could mr rogers do and and i would agree with that sentiment i i think that's right mr there's a six page colloquy there six page dialogue between rogers and and the judge and mr carpenter and rogers at least four or five times says judge he's striking all the blacks he's striking all the blacks in this panel he's striking all the blocks i can see i can look at who's coming in and i can see what he's doing he's striking all the blacks he says that's wrong he says he's not allowed to strike on the basis of race he's not allowed to summarily do that and and the trial judge he says i want to make a record i want to the courts helped to establish that these were black jurors who were being struck and and at each stage the court refused the judge says i can't tell who's white and who's black just by walking it i'm not going to make that decision i'm not going to help you get any records i don't know that there are any records to get everything rogers tried to do the judge refused and and in the end the judge says he can make peremptory challenges for any reason he wants from that that's correct that was not uncommon at that time judge greenberg there were no statutes of limitations in either federal law or in state law at the time that required  defendants to file p c r raise in any particular time after direct appeal people on death row had very little access to legal information they didn't have access particularly to lawyers there wasn't  anything like the federal defender does now or resource center in pennsylvania that didn't come along until nine hundred ninety four when there was some institutional basis of of lawyers being there to assist death penalty prisoners a death penalty prisoners were left like mr walker left pretty much to their own devices without any any prods from the law that would require them to file  couple of months counsel p c r a counsel filed a motion in the pennsylvania supreme court to remain and so that he could raise those issues and have a hearing and then when the court denied that within thirty days he filed the second p c r a petition raising the batson claim with the mic man issues and asking for an evidentiary hearing and his request was repeatedly denied even though the pennsylvania supreme court unlike some of the twenty a j letter that i sent the court last week and in morris purses horn the prosecution the commonwealth made very similar arguments to what they've made in this case and judge hardiman writing for the  wrote where is here a state court gives no reason for denying the petitioners hearing requests other than his failure to comply with the subsequently invalidated state statute of limitations we cannot say that the petitioner was not diligent for purposes of twenty two fifty five two so morris was also a case where an issue was raised in the second post conviction petition the state court found an untimely that was an inadequate bar under bronstein all these and all the other cases this court's previously decided and morris says ah so long as he rates that in the time of relaxed waiver which is what mr had that new evidence as well and so long as he asked for an evidentiary hearing he has been reasonably diligent and so it was proper for just good of it to hold the evidence you're hearing so so i think so to just s up i think it was proper to hold the evidence you're hearing mr rogers could not have done more other than to utter some kind of magic words and terms of his objection at trial and and judge  better proper determination and stage two that there were no reasons given as to three that he properly recognized that the burden of proof was still on the defendant and he probably found that based on the record before him coupled with the stage to failure that mr locke was entitle to relief i would say that that is that if you have to get to a more comprehensive if you think that there should have been a more comprehensive stage three review then perhaps it would be better to remain than to judge because of it to do that but i don't think in this case you need to get to that question of whether there should have been a more comprehensive stage three review i think one of the things that's different here is is the normal question we ask in step three is were the reasons given by the commonwealth pretextual that's that's the normal question in proving discrimination you can't really ask that question where the common law hasn't given any reasons at all it's not a question of pretext anymore so judge bit of took what he had had found that that's in violation  it can be affirmed for that reason but if if a reviewing court thinks the reasons were given let's for the sake of argument let's say that maybe they're not necessarily compelling but that they are that that even without the reasons you have to reach the question of of did wark satisfy the burden of proof the burden of proof doesn't shift so so going back to stage three and having walked satisfy the burden of proof are very similar carpenter the better practice would be to remain but certainly if this court feels the record is sufficient for itself to reach that question then then the score cap is whether promotion that's right such crap right but what i meant to say if i if i if i if i misspoke i apologize what i meant to say is the usual question we face in stage three in determining whether whether we've shown purposeful discrimination goes to the pretexts of the reasons like but you are certainly correct that the ultimate question is did the defendant show purposeful discrimination  similar packers and whether or not comparing black and white jurors are comparing dissimilar scenarios you mentioned the young lady with emory and how her situation was similar to some whites who were trapped in that kind of analysis that it does seem like the best way to resolve it is to get to step three and forward that hearing to be in front of the district were the attorneys can make these kinds of subtle arguments between white jurors that works have to in black jurors that were struck think i think i have four points number one mr live says that this record properly engaged didn't make a sort of an automatic step to determination and that's that i'm quoting here from from the the opinion where a state fails to meet its batson duty of production and step to the end now says ends with a finding of the existence of a batson violation as i understand that i mean it is an automatic  you don't need step two you lose and that's clearly wrong number two mr lay was talking about as evidence of discrimination that mr carpenter did not deny using individual strikes against african americans but that's because that wasn't the objection mr rogers said i think you striking all blacks and mr carpenter responded no i'm not essentially so in other words if you bend over backwards to say well that was an batson objection which again we we disagree with i don't but you can you can go even further and say mr carpenter's response was somehow evidence of this woman discrimination because he didn't actually respond to an argument that was not if you read the opinions there they're quite clear that they don't move the bar much at all with respect to mcmahon tapings specifically remember that the one part of this claim that was decided by the state court w in this case involving a different prosecutor involving a trial that had before bats in was not enough to revive a claim that had not been made or had been had been waived i think that is the one piece of all this that actually gets at peer review so i think it's not fair game to go down to the district court and start arguing about that more in fines and start arguing about the is not the best solution in this case is because the district court reached its result by using improper analysis and you know asking somebody to decide the question of discrimination once they've already attempted to do so and sort of done so and then and then you say the process was wrong i'm not sure you know i respect judge over a lot i don't want to say that that we wouldn't get a fair hearing but it would be perhaps more of an uphill climb than then than the law mandates if one last point in the sky is to the the evidentiary hearing again one of the threshold issues as to whether the evidentiary hearing should have been held in the failed to develop the record in state court that's a diligence standard it's in morse versus horne it's true that the court said well if the state bar that was eventually used to bar the claim is inadequate we're not going to go further and ask more about diligence on the other hand this court has held in other cases lewis and in taylor that issues that were raised and subsequently barred p c r a proceedings where those bar were bars were found inadequate they were barred by the diligence and are no other words whether the p c r a time bar is an adequate doesn't ultimately decide the diligence question it's especially true in a batson case because unlike morris forces horn which is an conflict of interest claim were all of the facts took place outside the courtroom here you're talking about you know the jurors are there the judge is there the lawyers are there there is a form to raise the bats in class there is a