this case involves a violation of mr hernandez's equal protection rights when he was prosecuted by the state of nevada during his trial the prosecutor excused a juror story for the reason that she sp spanish the action of the prosecutor violated clearly established federal law set forth in the united states cases of cats and versus kentucky in hernandez versus new york well you know asking about your problem that this might be or might not be about some violation but when you when you look at nearly ability to speak a foreign language and our challenge the race neutral reason and then the judge has to engage in the third step and allister's where the judge determines whether  isn't it reasonable to not have that you're not not because they're hispanic heritage it's because of the differential and language and language transactions i mean translat there were two jurors and he asked them about their ability to follow the translations and then sure wouldn't make eye contact with then they said they would try based on their events or as the prosecutor had reason to believe that they would not case you don't have to ask a doctor g i e willing to put aside your fifteen years of medical training and believe the witnesses you know you could ask questions like that but you know it's hard for the interpreter i mean it's very hard well if you speak two languages but you know and when somebody speaking the other language it's very hard to sort of shut your eyes but then your honor in any case in which you had hispanics who were part of the trial and there was an interpreter then anybody who was spanish speaking would be removed from the in mclean versus presently that there's nothing to defer to because the trial court never reached the ultimate question of the judge that was she looked white to me and then he sa d i accept the race neutral reason but there's no waning of of whether there was purposeful discrimination so there is nothing in fact for this court to defer to under in mclean this court said that that was contrary to that sent however i believe that under the supreme court case of early versus packer which made it a little more restrictive that it's perhaps just an this trial court judge who was in the best position to determine whether this was pretextual or not didn't do anything but saying that he found that the race based or the race neutral reason by the prosecutor was standard under hernandez it seems difficult to see how when the state court system chooses one path that somehow that's an objectively and reasonable are in conflict with what the u s supreme court said three if you're using it as a pretext to attack a native linguistic community spanish speaking russian speaking whoever whatever the immigrant group is then it really starts to look like ethnic discrimination but we don't know that that happened here because all we know is that i don't know how to pronounce his name ziad and all we know is she spoke spanish to my my dad speaks fluent spanish he's married his fourth wife is was born in mexico but we're german and scottish we have no hispanic as at all and so my dad would be in the same kind of position here that he'd speak spanish and yet this is not the kind of case that i would be concerned with where language is used as a pretext to remove members of a of a linguistic community that also w said what's different is somebody who's fluent spanish they may be some problems the court said she doesn't look hispanic to me all we know is she speaks spanish that's the situation as you said where she may have a ph d in spanish and she may be i don't know italian i don't i don't know what her ethnicity is but i think when the court came up with its conclusion it was engaging that was the product of the third batson step in this case but i'm not sure i counseled town council did a good job in finding where we went past the first step but in fact that the count the state prosecutor offered a race neutral reason the difficulty here is if you have a translator going off one direction and you've got one or two jurors going off a completely different direction there is an issue and there's an issue that's nondiscriminatory and the issue is that in some circumstances you're going to have two different lines of testimony in the ears of different jur different juries are hearing different issues and ultimately i don't know how the courts are going to deal with legitimate versus illegitimate use of linguistic strikes there are many cases where agree but that was my question my question was just criminal tory impact is not unconstitutional in this sort of arab public policy i think in this circumstance franchise a large of your community if you're in a diverse community i think i think so i think i think it's a difficult issue but the position i would take is there are there are legitimate argument for requiring jurors to hear one line of testimony and this gets this is a difficult area and i think this is really going to require at some point more than what the supreme court did hernandez when they said well you know might it could be an issue at some point in time this is not that case because there was no showing of of in a discriminatory intent but certainly we could all come up with a situation where it really is if you've got a situation in a community where everyone who speaks spanish and i agree with judge kozinski it doesn't always happen but if you've got a situation where everybody in a in an ethnic group speaks that language you know at some point time it starts to look moot once we get to step two analysis the prosecutor hears that while she speaks spanish but then all the trial court did was say that's the race neutral reason and there is defense counsel so as when they give the reason that they don't want any spanish speaking people on the jury which incidentally they didn't ask any of the jurors if they spoke spanish it's sort of odd if that's a concern of theirs they don't ask those questions mr the defense counsel is the one who asked this question primarily but defense counsel says after the proffered raise race neutral reason if they use the excuse and she wasn't asked the question do you speak spanish so she approached the pain left and explained that she was probably in response to that ok thank you