and like reserves five minutes in this may be yes martin walker was convicted by a jury that was selected in a racially discriminatory manner and was instructed with constitutionally division journey instructions  the certificate of appeal ability should be expanded to include the jury instruction the california supreme court held that it was guaranteed not instruct the jury that felony murder special circumstance required intent to kill instruction  are not prejudging it i loose asking if we were to agree with you on that one we have to reach the question certifying the other issue in other words if there were a new trial presumably the same grampa and grant on the instructional grounds but just standing on the battle grounds would be sufficient so the record on the instruction plain demonstrates that the jury focused on whether mocker could be found guilty merely for being present at the scene as an accomplice so they asked questions regarding and an accomplice liability three times over the course re days of  taken hook at it and we're reviewing the california supreme court for their own law under their courts with very parties and so we give a lot of deference in that regard at the supreme court says well no harm no hol and they said looking at the record as they are the virtually impossible that he didn't shoot them and then they say but even if that's wrong the jury that it didn't matter shocking that argument by the prosecutor in closing argument just bolsters the back this is not arms here and rd the supreme court failed to consider that walker was actually the younger three times never repeated that intent requirement and never repeated that argument and so when the jurors are asking the judge and telling the judge like we're comfortable with the fact that you only have to be there use the state supreme court simply doesn't look back to the record and recognize that many of these justifications are either will or are undermined i would record so in fact we see  view when i was a district court judge i had to look at people and it wasn't necessarily the words they say i took a look at them and people have facial things they do they have sometimes  wide variety of things that you get when you're trying to determine whether a person is telling the truth and we are saying that someone else can now without even seeing that they look at the call the words and be on an equal footing we can trial i remember when i was your trial judge and and the park or did that it made you quite disturbed how do you respond to that it just seems to me that is very difficult claim the trial court found the prosecutor credible the trial court expressed the rules i'm satisfied that the district attorney has not engaged in any discriminatory practice by excusing the jurors and this was after the trial court  asked the prosecutor let me ask you directly mr district attorney what did your intention to excuse and exclude these three or any of them because of their race the prosecutor said no i think i thinks that they're being discriminatory and even if they do think so they're probably not going to say you know fall on their sword and say sure i want them off there if they were african american and i wanted them all  jared don't we still have to look at all of the other circumstances and and consider whether that is a valid  absolutely or on a very fair point look at the game the game is over once the prosecutor says no but i think this speaks to judge humans point about how we have the trial judge here making a credibility determination with respect to the to the district attorney based on what he was saying how you said it so then we go to the next step what is the california supreme court do the california supreme court found substantial evidence to support the trial court's credibility the reasons implausible or fantastic were some based on mis characterizations of the prospective jurors testimony and are some of them by comparative your analysis i don't think that we have that at all unpersuasive demonstrably false or apply equally to the non black jurors who were not permitted to were permitted to serve on the jury so i think curry is just exceptionally that case there was a substantial difference between mr kulis and mr george mr george his experience with on sports meant was exceptionally negative he filed the internal affairs complaint  testified at length that he was the victim often of what he called the average black man syndrome he was around he would be supposed somewhere and he would just automatically be assumed to be the perpetrator when there was a crime your bike mr cool if his testimony was is drunk driving to chew ation which handled fine by the police he had no negative feelings towards the police and with respect to mr george the other two reasons that the prosecutor gave was that mr george dressed in appropriately for court and it volunteered concerns about the death penalty counsel keeps saying that the proud court rejected that demeanor based reason and that he dressed in appropriately for court what the trial court said was these were just these are just matters of taste personal opinion in the trial court didn't seem and didn't see anything wrong with how mr george dressed but that doesn't render race based the prosecutor man was an eyewitness to the murders or robbery so what what makes an timely i assume relevant here well there were there were going to be well let me say that's enough in a criminal case anti riot for smith bias is always a reason to reject a juror from the prosecutor's point of view and in this case there were going to be police witnesses there was the undercover officer district officer mcavoy who bought the gun from m walker so i think on the facts of this case a bias against law enforcement would be a legitimate reason for the prosecutor to excuse your limits let me and then on a different issue what  what what do you make of the fact that group or group or the brother in law mr walker later in that confessing that he was the shooter let's let the fact that he does that happen is ok that that comes from one of the parole hearings i believe early on and then later he recanted that at another parole hearing and maintains that mr walker met marvin walker at the shooter so that fact it isn't really relevant to the two issues here that was a parole hearing they ask you something about mr george that if i understand it there were three reasons given for removing him from your in one was that he volunteered which you're about to say isn't correct which i grew where the nd was that he was wearing a medal that a leather motorcycle jacket and the supreme california supreme court input no five reject that as a he had been stopped by the police and of the felt that he had to have an excessive force situation at one time so where does that fit ok fair point this is what mr george did say with respect to the death penalty i do have feelings on that subject which everyone else has certain feelings on that too if we should cross that bridge you know we'll consider that but the thought of having you know having that control or being in that position it would it doesn't it will affect you know personally i will have some feelings i just couldn't do it at the drop of a hat think nothing of it i will feel bad i will consider it everything that is put to you know toward me and that's a page one thousand and ninety of the excerpt of records is it objectively and reasonable that the prosecutor may have spelled out in that statement that mr george i have i must confess your honor i did not think mr kulis was one of the comparative jurors with respect to the penalty i thought it was mr alvarez to i can't speak to that all i can say is that know appropriate level of concern about the death penalty in this case the trial court found prosecutor credible we we have one reason with mr george that is supported by the record it's his experience with law enforcement in my view this statement from mr george could give the prosecutor concerned that he wouldn't be a good you're in a death penalty case and then we have the inappropriate dress that the trial court said was not inappropriate in my view giving double deference and the benefit of doubt to the state court there's no bad to violation there if this doesn't compel a race reason which is what this court has said would just be taken off of the penalty now why why was she allowed to do it and not any of these why i don't know your honor why did the prosecutor had i believe two more  i don't think so if i did win reasonable minds can differ then under that a d p a this court must deny relief and i think that the best we can say here is that reasonable minds can differ on whether the prosecutor was offering do not your honor counsel was correct if this court grants really be a batson then the judgment is reversed and you would not have to reach the issue of feel way because the c r weight issue only goes to the instructional error having been taught what the right instructions are or the those those would be those have been corrected your honor that's no longer an issue thank you thank any other question then you think here are i believe not thank you the case just started is submitted we very much appreciate the arguments from both counsel and we particularly appreciate your patience as we have to