we are ready to hear the st case on our docket johnson versus martin ready to hear from the you need to have your audio is  issues in this case there are there are a couple of things i'd like to emphasize to the court about particular about this batson claim that would complement the  the st one is the the nature of patterns and impacts in itself the supreme court as recognized that a pattern of striking minority d jurors can constitute facia case of racial discrimination now as a practical matter when defense counsel is physically present in the moment during jury selection the nature of patterns is that we see them in the president only by looking at the past so when a prosecutor strikes a minority juror for the st time is that pattern well typically not and what i'd like to emphasize to the court is that you know defense lawyers myself included have done this before we're not flippant about making bets and challenges it  in a row is that not right or at least fifty five minorities whether they were in iraq or i don't recall that that if that is when defense counsel raised the question of whether or not that was too  much that's correct and that's kind of the point i'm making is that some and i've done this myself in jury trials sometimes you let some of that though because you're not really sure but there's a tipping point where we have a problem here irrational way we have a so we have a summary opinion here which is basically one paragraph but with conclusions devoid of really have any analysis the primary way is that  and this is actually fairly shocking to me the court of criminal appeals viewed this record as the trial court you know when it came time for the prosecutor to strike the last african american juror on the panel it was the trial court that actually said wait a minute i didn't see a pattern when you were striking them all before but now you want to clear them all out so i'm not going to let you do that in our view that is a implicit if not explicit binding of a pattern of racial discrimination the court of criminal appeals view that and said well the because well even if there is deference the conclusions the legal conclusion reached are isn't reasonable because an analytical framework and there's a reason why the supreme court did it that way because is there a prima facia showing if so it is the duty of the trial court to inquire of the prosecutor to articulate a race neutral reason well then can i stop you there counsel because this isn't isn't that kind of a problem is that your argument you're making here and you did make it at the post conviction but you didn't make the argument at the direct appeal level that you're making now which is that step two step two it's the prosecutor who must state his race or her race neutral reasons and here the district court stated essentially stated them but she didn't object to that at the disc at the direct appeal level and the state points that out now in their briefing now that this wasn't the basis for your objection and i don't see that you really responded to that in your reply brief and isn't it procedurally barred by not raising it on direct appeal  you didn't discuss the fact that it was the judge who essentially provided the reasons versus the prosecutor and if i'm understanding your claim correctly that's set that's sort of the essential aspect of your claim at this point well it's not the essential aspect of the brain it's the reason why the opinion of the court of criminal appeals is incompatible with bats maybe that's just well i guess i'm not sure that the court of criminal guess that would be the only way you get to the point of whether or not you argue that the trial judge relied on his own race it's well it was raised and decided by the court of criminal  how how was that while and i i think you're arguing something different here that was argued on direct appeal is that not right no your honor i disagree with that i have a question counsel do we know the racial makeup of the jury not from the record i do not in the how do we decide anything my other question is does when you say minorities are you know how many minorities were left on the jury we know what trial counsel said trial counsel objected to five out of the six and we know what the reaction was of the district of the traffic court judge giller didn't say you're wrong about that those of the people that didn't get on the jury that we know about we don't know lots left in terms of minorities well i don't know that that is even relevant under batson the evil that we're come back to here under batson the supreme court has told us is the racial strikes themselves not the composition of the jury the ultimate composition of the jury i don't think it's part of the best analysis well if the remaining jurors are fifty percent african american or that mr johnson was convicted in her words on the basis that he was quote unquote black so sometimes in these bats and claims it is difficult and maybe this goes to your question it is difficult to determine the prejudice what is the harm apart from just the racial distract itself i think we have a unique case here where i think we can show the harm and to go to your question if there was a more diverse jury panel would would racial considerations be part of the jury  sentencing calculus i think it's very unlikely not and then you have to do it and i have to emphasize you know judge it will hurt refused to allow the state even if he's finding no racial discrimination he's not allowing the state to strike the last african american juror to me that says a lot it really drives the point home here the that's and that we do not then i was looking for that comment by the district by the trials and that is and i quote well you would have effectively eliminated all of the african americans and i'm not going to do that so we know that there was one black juror correct that is going to see more is point we don't know if there are other minorities on the jury right one other aspect of the case and this is the i guess goes to the gruesome photographs or gruesome testimony claim and i got to be honest that this claim very rarely gets any traction much less  certificate of appeal billy in this court but you know i think there is a reason for that the you know number one is it the testimony and photographs were clearly excessive but the main point is there was no dispute during the trial factually mr johnson did not personally committed the murder here very attenuated entend general harked he had if you believe the state's theory of this case it's so when when the court considers this issue there's a reason why and you know when defense counsel i've done this myself a trial will stipulate that there is a day i will stipulate to the manner we're not contesting any of it and typically the prosecutor will say no we want to put on all this evidence there's a reason why the prosecutor does that and it's because they can make the closing argument that they made here in emphasized this sort of evidence that is based on an emotional reaction to who are not accustomed to hearing graphic descriptions like that much less seen color photographs so that there is in this case i think the  very clear to me but the other claims are as well and then when they're when you inject the cumulative error component to the issues in this case there palpable prejudice on all of them i see him about out of time i would think that's thank you that's all i have to say unless there are some questions thank you the prosecutor provided the race neutral reason that mr deck ins was a english professor he had a ph d in the arts and in his experience such jurors which are exacting and he didn't want someone like that on the jury dollars strikes so far of the prosecutor had been a minority jurors and hasn't that a pattern no it just looks like one that was all he offered as far as argument to we're giving the trial court a great amount of deference because the trial court is the one that's watching this and that can gauge credibility and the trial court was faced with simply an argument of well here's five of it's a three step process yes it is a three step process but the st step is for it via petitioner to present a crime and face a case and raise the inference of discrimination to the trial court and because the petitioner argued nothing more than the number and because the trial court could see mutual reasons on the record the trial court clearly did not see discrimination in an effort i'm sorry ok so what about the fact that the trial court st sentence and he says well i don't think that establishes a pattern the next sentence again in terms of miss martinez i won't state their reasons for them meaning the trial court seems to be saying i'm going to ask the prosecutor for reasons i'm not going to state them for the prosecutor and then what is the core do it proceeds to state the reasons apparently what else would you call that one of them says but mr martinez she was involved in the process miss kuranda had difficulty with english on a guess what would you call that other than stating the reasons when it says i when he says i'm not going to states reasons but then he  france of discrimination on behalf of the prosecutor by pointing to those obvious neutral reasons on the record for why these jurors were struck the trial court didn't feel it necessary to go further difficulty with the english language and earlier and what dear the prosecutor had actually attempted to strike mr lawson for cause because of the english language barrier english was her nd language and she had only been speaking it for about fifteen years and she said she felt uncomfortable and didn't know if she'd be able to understand everything so clearly when you have that from the prosecutor previously trying to strike her for cause that's obviously a right and neutral reason on the record that the trial court can see what was the remind me what the miss martina as the trial court said she was hardly a mauled in the process what did that mean there are several different things from the record st of all she explicitly said she didn't want to be on the jury she also mentioned that she didn't believe it was fair that her brother was jailed for a dui she didn't think jail was appropriate  and then in other instances during what here she just didn't seem interested and she would respond with very short responses and she just wasn't engaged like the other prospective jurors rain gauge dimitroff well that sounds like something to me the trial court should have inquired about the prosecutor fairly there might be several reasons why the prosecutor might have struck miss martinez we don't even know what those were because we got this general statement she reserving strout hora racially discriminatory reason that is what is the motivation of the prosecutor it's not what the judge thinks it's what is the motivation of the prosecutor which is the question that the judge should be asking the prosecutor right is that the correct reading a batson well i think if the inference of discrimination is not raised to the case law you rely on for that place and so johnson versus campbell from the th circuit is one case where the court stated that there were what were the obvious reasons in that case prosecutor race neutral reasons that were offered in argued that the racial reasons were untenable and that the trial court shouldn't have found a lack of discrimination he did not however raise the argument that the trial court improperly imagined race neutral reasons for the prosecutor that was not raised on direct appeal and was not raised to the core criminal appeals and is not as if it isn't enough who are the sound has been violated here no not necessarily especially when he focused his arguments on such a specific piece of ba argue on direct appeal that the prosecutor and by omission of that some systematically and intentionally removed minorities from the jury was that not right yes he did argue that and did the o incorrectly determine the facts on that question yes they did was a pastor and perhaps wouldn't be willing to impose judgment upon petitioner and that she had worked with drug addicts in the past and perhaps would favor a treatment rather than imprisonment in most cases  neutral reasons on the record no but again that aspect that specific aspect of that claim was not raised to them on direct appeal it was not raised until well  concluded that the prosecutor game the race neutral reason and when we look at the record and see in several of these instances there was no race neutral reason given by the prosecutor but instead it was given by the trial court many of them three you have nothing nothing at all for i'm just from the prosecutor as to the race neutral reasons for three and the objection was to the pattern and so presumably that's the objection that the o c a was dealing with and so the l c c a clearly did mistake the facts if it's if they suggest that the prosecutor gave race neutral reasons as to the pattern objection the discrimination in the trial or its mind maybe the press there said nothing because the trial judge had already set up for him so you're saying in this case there's absolutely no evidence of a pattern of racial discrimination in the striking of yours no and we have to who don't know what that is your view there is no because they are there and they are experiencing it and they're viewing it st hand and can judge the credit credibility of the prosecutor can judge the credibility of their prospective jurors conflating your role in a federal direct appeal where trial counsel doesn't say the words appropriately and is that plain error procedural default is did a state appellate court impose a procedural rule appeals doesn't even have to be aware at bats it just has to issue an opinion and this court has to review that opinion it can't be squared with miller l b dred or flowers be mississippi quack you thank you both for your arguments this morning they're very helpful