factor substantially outweigh the mitigating factors that you could return a verdict of death answer i don't think so question you don't think so answer i don't think so skipping down a bit question you don't believe that you can return a death verdict in were told the court has issues with the whole concept of special circumstances seems to me it is legislation by politicians to get tough on crime with the three strikes law i don't happen to agree with either one of those i personally don't believe that the robbery is such a special circumstance that would require the death penalty all right would you say that in those circumstances you would not impose the death verdict answer it would have to be a very heinous for me to impose the death prosecutor did the prosecutor in justifying his excuses said to the court i believe it's on  of their answers well of course it's subjective judgment because it's his opinion but you know this is one of these and the judge and the judge believed them well except it wasn't true and not only wasn't it true but one and this is one of those odd circumstances where the facts straight to the contrary i mean we had two jurors who the prosecutor kept on the panel who explicitly stated their opposition to the death penalty and explicitly stated the appeal distorted california court of appeal distorted the look it's hard to avoid the conclusion that the public like the liberally misrepresented the facts in this opinion the jury said she was undecided didn't make the statements or didn't make the factual findings in the same terms used by the court of appeal that's correct the trial court did hear and deny a challenge to the jury selection that's true and the trial court had the advantage of being able to watch the process and form his or her own assessment well you know so i need to be very specific what isis hard for me except in the proposition that that we do the reason is that you know when you talk about sitting as an appellate judge of course one would be difficult it would be difficult to judge the witnesses credibility because you don't see the witness but we don't have to do that nothing vague about saying i am opposed to the death penalty there are the issues where the demeanor that the trial judges observations are important are not present in this case because there is no gray area perhaps a poor choice pledge black and white they said i'm opposed i don't believe in special circumstances i don't believe in the death penalty and we have a glock who says i could impose that that i wouldn't have any problem doing that so credibility also speaks to the credibility jury who are opposed to the death penalty and you can't want to walk who says that she's if you can do it that's not credible i mean this is one of these rare cases we have a situation where the transcript the bare cold transcript is sufficient to conclude that the prosecutor was not telling the truth that credibility determinations are not involved here as to what the jury said to mean or is not involved what is involved it's black and white what is involved if you have t the prosecutor gave race neutral reasons i don't believe that the fence is seriously claiming that the reasons given were not raised race neutral so the question boils down to were they were they not pretextual that's a question of fact for and therefore at least as to the their opposition to the death penalty and therefore the prosecutor stated reason as to disqualifying or challenging juror to ten that she was undecided about the death penalty was a pretext the before the court the issue before the court was had that's an error occurred and as you pointed out in our letter brief it's our understanding of texas law that in texas you are allowed to do a comparative pass an objection allows you to do a comparative analysis for the first time on appeal based on the record in the trial court you can introduce new evidence but even though you didn't ask the trial court specifically to do a comparative analysis texas law allows so therefore it would have been permissible to do it and miller l for that reason because the state law allowed it california law is clearly contrary to that proposition so it's not permissible and i think there's good reason for that remember you know when once you get to step three once you get to step three the prosecutor has given his reasons now the court has to make a factual finding as to whether those reasons assuming the the way that your spoke to me or the way that your did you didn't in his or her chair some sort of body language which will of course not appear on the record if there's been no objection based on comparative analysis the prosecutor got no reason to bring that out and a host of other reasons and in this case let's you know assuming assuming we do a comparative analysis juror to ten in this case said during war dear sometimes the police treat people differently in different locations of this county and in fact i believe i was treated unfairly differently than other people in this county and other locations in this county and in addition to your if you turn stated that  e thought that that presence of hispanic descent and drug dealers were more likely to commit crimes than other people and the victim in our case was a hispanic so the prosecutor had good reason are good reasons vailable right on the record to show why this juror was not identical to the other two jurors neither one of those jurors said anything about some sort of anti police bias or indication that they had been treated unfairly by the police and remember although this was a capital case where penalty was an issue the prosecutor also had real face considerations to take into account as well he had to weigh everything in the totality of circumstances and sixteen we difficult as that you can't say by clear and convincing evidence at this stage of the proceedings that the other jurors were so identical to juror to ten because they didn't express any anti cruelty spies or any claim that they have been treated unfairly by the here are we allowed or what point are we allowed to go beyond what reasons really offered by the prosecutor at the time well the reasons offered but i mean as a general matter i agree that the miller l seems to indicate the court is restricted to now yes but that he's not been put on notice that he should also say and by the way if you're going to claim that those same reasons apply to yours a b and c  those jurors are otherwise different than this juror who has no notice that the thirty that he's been it's necessary for him to make those kinds of statements it seems to me somewhat unfair to say the least to do to reverse the case to hold the prosecutor accountable for not giving reasons when he's not been put on any notice it's like there's been no objection on that ground and it seems very unfair particularly i think such questions question as to rex and to the because if you are going to engage in a comparative analysis then you've got to look at the whole record and the whole record shows that juror to ten had the reason how can we take the reason that's not given and compare it with anything th reason that's not given is not a reason why he disqualified or to challenge a juror to ten the reason not given is a reason why is distinguishable from other jurors who now for the first time on appeal the defendant is claiming were similar to those reasons are not reasons for why he's challenging zero to ten the reasons for distinguishing juror if you turn from other now assertively for the first time on appeal claims that  identical to other jurors i believe have no idea now of the prosecutor even consider those factors that you've identified right we have no no idea well why can't we just take the prosecutor at  to the extent there's any argument that those reasons apply to jurors a b and c posters are not the same these reasons are right here on the record and that the court doesn't have to go outside the record and in fact i think that  some basis for believing the prosecutor's reason was a pretext compared this case to miller l where the court said that using comparative analysis than an inference of discrimination could be made and then look at all the other factors which the court used to find by clear and convincing evidence that the that the state court finding was one reason objectively and reasonable you have an outright policy in miller  a long term policy existence at the time of discrimination against black yours you had the jury shuffle system and you had the overwhelming percentage of blacks who were disqualified or who were who were challenged none of that exists in this case and in fact we've given reasons why if you even if you do comparative analysis there are good reasons or distinctions to be made between that yours so i think even if even if even accepting that you can do a compar is not told who he's supposed to compare the given how a member well he may offer a justification that applies to seven panel members but doesn't apply to over here and if on appeal we have ok one of these two over here is there something to the argument that says well if you're going to disregard the big mass and pick out an individual one over here then we ought to have all look ok side by side with everything on the record for the two things first of all the judge had an independent duty to evaluate the credibility and the accuracy of the prosecutor's representation is the prosecutors said compared to other jurors this jury is not strong on the death penalty so the prosecutor was one knows that he had to give those reasons and he gave those reasons now they'll just pick one example the the reason given that one of the number to ten but the police were treated different we treat people differently depending on where they live in the county well joy number forty three a white sure who was kept on there felt the same way in fact k makes the point shouldn't do this comparative analysis first time on appeal but even if we do that then opens up the record for us to look at all of the all of the features of each prospective jur you agree with that well you know we have to take our guns from the united states supreme court there's a certain surface life to what you're on i said but the united states supreme court has said in miller l which which is the reasons we proffered way before backs and that we have to go by the reasons proffered by the prosecutor so that whether it makes life a little sense to open up the whole comparative analysis which i think frankly still works favor is granting of the written this hearing the post batson hearing at which time the only focus of attention was whether there had been discrimination and that's correct that's and well that point the prosecutor knows what the whole game is about and will and will have an opportunity to examine and that's why the supreme court said well that may be but you can consider those because what the prosecutor said controls so that we have i think this is clear example where prosecutor was on notice and the court let's talk about juror number two ten for second juror number two ten said that she thought the defense attorneys represented jailbirds she was concerned that life without parole really didn't mean life or a parole and that they would that