and your you really are objection is overruled is unite however in that same category verse with relatives who have been involved in criminal proceedings there were other jurors who were allowed to remain on the jury with that if the prosecutor gives that reason but if a judge at the trial gives the reason or if an appellate advocate gives the reason it's coming from the wrong mouth it should come from the mouth of the prosecutor saying i believed so many so many courts now because you it is i don't recall that there were juror questionnaires in this case so i don't believe that but the ones that category has been established that other african american the african is there any reason why you can't be fair in this case and everybody asterix i can this doesn't affect me to the point where it would affect my deliberations in this case and what i'm in for sizing  and i'm saying that that is an inquiry that should be gone into in step three a process rather than step one where we're asking whether the prime of the asian kids in this case the african american juror for example had sat on two other criminal jurors at least two prosecutors obviously didn't think that she was the kind of a juror that was biased in favor of the defense and when you take a strike if you start balancing these things it's really a  balancing test that is more appropriate in the step three of the analysis rather than step one in that those reasons i come from the prosecutor and the judges that by golly gradually right mr bush would have no  criminal proceedings and i'm suggesting that once that happens that they plan to fish case has been established and yes we can come up with reasons well this one was robbery and maybe she was closer to her brother than this person was to her spouse but statistical excuse me disparity that would emerge per se from the removal of one person and so that as a matter of law would not create either in california or in this court a presumption of biased but the more important point is and i know there's been discussion of these categories that i think are kind of ad hoc descriptions of this case the more important point in this case is that this juror was in a position fundamentally unlike any other apparently in the new year and that is the juror had no less than four relatives who had been involved within the last five year period in serious criminal conduct she had a spouse who was on probation  following in conviction in a federal court for bank fraud or tax fraud her brother had been convicted within the same five year period of murder a murder in which her sister in law was complicit and her nephew was also involved no other juror in this veneer had a scenario remotely like that there were no other jurors with spouses currently on probation and there were no other jurors of the total of four relatives recently in broiled in such serious proceedings and i think that is why you know the suggestion was also made that the judge somehow truncated or interrupted this motion from being made by usurping the role the prosecutor thing that the judge did was comment on the obvious regarding the fact that the sole basis for the motion was the fact that the juror happened to be african american but that the juror had circumstances that were unlike others on the veneer and there was really no response to simply says denied and the only thing i would add is that the trial court had before it at that time the prior removals that you alluded to earlier which were different in those circumstances the remov jurist fifty five ninety eight also known as german before and their move of the juror for twenty nine who at one point was your fifteen another point was juror can so i mean the judge list these things which  to what his basis for the motion is it really as i read it the motion is a a complaint about the cross section requirement about to the new year that it's unfair that the stall african american potential juror has been removed and that i don't think is is aimed at the same reasons that we're discussing here that we this under the strong likelihood standard for determining whether there was bias and that that has been overruled lead courts have decided that a lesser standard is required but the district court in this case recognized that change in the law evaluated the case to no go and for reasons similar to the reasons that i'm citing found that there was no will or a batson violation the role of the prosecutor and giving the prosecutor's reasons which may or may not have been the prosecutor's reasons well the only thing i can add to that your honor is that there is the judge does perform a threshold function of deciding whether or not a crime official case has been made out and the judge in this case i submit was doing nothing more than recognizing a parent's circumstances that indicated that this was not based on the the argument the minimal graus articulated by the defense attorney that this did not rise to the to a level requiring a response given that there were these glaring discrepancies and those same discrepancies between this juror and others i think were the ones recognized by the state of public order by the district court and were sufficiently obvious that the judge did not determine that the prosecutor had to suggest that if we allow this analysis as to the motivation of the jurors to take place at step one it's going to be very very easy for the courts of california and perhaps even the federal courts to find that there is not a badge and violation because we can always find some reason or some statement in the jurors  said was i find that she has relatives who have relatives who are involved in certain criminal proceedings and that category applies to jurors that were left on the jury also