way the jury the jury in question here are both african american after that second step was that district attorney in the case must give a race neutral explanation for that strike and that leads you to the third  that must be taken by the trial court in determining whether or not a facts in violation occurred is that the court has to determine whether the reasons were creech extra for the purposeful discrimination in the case in terms of this issue before the court there is a couple different issues at play here with facts and the first dealing with the trial court at the trial court level here what we have is a trial court that didn't engage in step three they went into step two they determined that there was race neutral reason to kick the african american jar of the woman off the off the courts and there was no well evaluation of what the pretext was and if you take a look at what the is certainly a nonracial reason a little bit in artful in terms of his language being that this councilman this woman's son is in prison for murder maybe sympathy involved in the case so i think it's a legitimate reason i don't see any pattern nonrational patterns and racial reason so i'm going to deny your bason objection all the judge you have talking about here before and after the one comment that it's a nonracial re a fair amount of time reading trends scripts almost never there's an articulation orally taken down of a transcript that the language that's used in written opinions you have to try to figure out what he's saying here and and i read this to say that's i don't see this as being racial i see this as being something else in effect saying it's not a pretext i think the nonracial reason offered by the prosecutors will judge him so i'm going to deny your objection he doesn't use the language of the court uses in describing the third step but it sure does sound like the third step to make and i would i would disagree with you there and the reason the reason i would disagree is that if you if you go with that and if you go with that an son was convicted of murder and is in jail and the judge and the prosecutor think that it's unlikely and i think she can appropriately serve on this j it's not a racial reason at all i understand however what i would point what i would point to is looking at exactly what she said in terms of that because the trial court an emotional experience for her because the first time the problem is when you look at the questioning that occurred between the court and between that sure she's very very specifically says that she's and i prefer for the courts of volume one you are citing one sixty eight it's where the conclave begins between the port and i'm sure you have again i don't want to pry into your personal affairs but the fact that your son had that problem and this is  murder case would you feel a little uncomfortable sitting in this case you'd be thinking about your son known and yes i do but not thinking about my son so much as i've been on a murder case before about twenty years ago and that was an emotional experience i don't like i mean with the fact that you had this other murder during the fact that your son's in prison and it's not going to affect your deliberations a little in this case no do you think that you could be a fair jury i read that i could see that we're not talking the father knows best kind of family i mean she doesn't seem to really care very much that or so i'm just in for murder and teach when asked what the a fast was that well gee i think you know it was murder by golly i got to think hard about this what they go out for this time anyway and it's true she relates back trouble because you don't want to be they're going to think of others on the fact that she does have a relative so close even though she's not really putting arms around a whole lot but it's a close relationship on some level and it's exactly the same charge of murder let's not make that decision a very easy one to understand and as a result you look at what the judge says it make it easier in the cycle that's not racial she does happen to be to be black but reasons and my and my answer to that would be yes when you go into what the third means to be in a batson challenge and what didn't happen here and you have a contradiction in terms of the trial court the trial court focus on the woman's son being in prison for murder and the trial court as your honour's are well aware is in the best position to look at what they believe to be the most important issue here and about a supreme court's when they look at it focused on the fact that she didn't e and that's what i see and again i'm trying to personalize this deal with the cases as it is but so i look at what the trial judge is saying he shouldn't be saying i don't see a pattern here because there's not a requirement for patter but ambiguous information i think you get i believe that you can to objective and objectively and reasonable if you compare the jury that actually sat on the case and do a comparative analysis which has been done in numerous cases before this court in terms of about it looked about the other jurors looked at the other jurors that were sitting in the box and decided that they were what the reason was not pretextual in that case here you had a bunch of other jurors and you had to find jurors in this case that had similar when you look when you're looking at the overall composition of that jury i don't think that it's insignificant and i think that that third step didn't happen there when you are looking at five jurors that had family members that i think prosecutor in requiring mr pawle to testify on cross examination that nine of the state's witnesses were liars violated due process and a fair trial in his case the standard in terms of prostrations contact him rises to the level of a jury find premeditation deliberateness as well in the other one the three categories and you made the argument the nevada supreme court has itself changed the instructions suddenly changed the instruction it seems to me the issues here have to do with premeditation and deliberate your argument is that the jury was an astral required to find deliberate because it was given a definition of premeditation that led into the finding of all three on the fact case is there a goal for a gap of any real kind between the two could it could it be rational for a jury to include based on these facts that the act was premeditated as defined in the instruction they were given but my not have found that it was deliberate under the instruction that your client sought to have the jury instruction on the definition of deliberate i think that yes it would have made a difference here  old instruction had was that there was not enough emphasis on what deliberation meant i believe that there are facts here in terms of arguable facts here of the spontaneity of the verses whether or not there was actual pre and then it's not constitutional and we don't have to and we're not going to show this is a state law determination can we overturn that well i believe that it please the court and counsel my name's robert whelan i'm the senior deputy attorney general employed by the office of the attorney general of the state of nevada and i have the privilege of representing the responsibilities in this particular matter counsel was arguing about the bat aspect of the issues before this court and i noted in counsel's brief that counsel was arguing that the state if not strike mr court going to was in fact struck by the defendant and that shows second preemptory challenge was against mr cochran the state did not have the opportunity to strike mr cochran and i think it's him inappropriate for counsel to suggest we should draw a negative inference against the state because essentially they  some ne'er do wells for either for brothers but the difference as as has already been observed is the closeness in the familial relationship between the between baden where and the other people this is the circumstances of this as it was noticed that she's a lady whose son is in prison for murder the self same crime with which the prosecutor is  defendant i would suggest that have the prosecutors relieved parents whose have children who have children on their juries who are in prison quickly become former prosecutors the point being is that in this matter how strange it might appear to be but what do you make of the the words actually used by the trial court making reference a couple different times to like a pattern why i think those not should be got a requirement for a pattern is there no but if a pattern can be evidence of racial discrimination underpasses i think the judge may have been in articulate he maybe could have said it more more clearly but i think he said it clearly enough and the evidence and the that is in the record in this particular case shows very clearly that there was convicted of a drug offense may argue that he presumably spent time in jail there is absolutely no evidence of that in the record and indeed juror green stated for a fact i know that he did not serve time mr reich had a cousin in jail for drugs those are the jurors that he or the points that the petitioner makes in his brief suggesting that the the prep for a challenge exercised in a racially discriminatory matter the simple those points as i've shown are negated they simply do not have the weight the council would like to have them in the comparative analysis judge's finding of the credibility of the prosecutor what it does is it says that the judge is in the best position the trial judge is in the best position to make the determination of the credibility of the prosecutor and i submit in this particular case the judge circumstance is that the west has justice kennedy said unless the court they find the trial court determination to be unreasonable can't get you can't get relief on the that's a challenge turning an issue of state law be that as it may even if even if the court were to decide that there were as instructional instructional errors in this particular case the evidence presented by the i believe it was jeanette peach heard about it and as a matter of fact this was just prior to the homicide she told the victim to watch out for mr cole he defended himself on a previous occasion had said i'll shoot him i won't fight him he won't let in i won't even let him get near me there was a situation where the where the defendant was driving his girlfriend lustily heiress they had seen the victim at the bus and believe it to be the same bus stop where he was shot the defendant decided to drive by rather than to pick the victim up this is a previous occasion what we have in this circumstance too in addition to the to the bulletproof vest is the fact that the  had a firearm he had it concealed somewhere yes everybody knew that he earth excuse me at least gun that peach knew that he had a firearm and lastly arrowsmith that he had a firearm they had asked him one or the other of them and asked him to get rid of it and he had in the victim are arguing about something on that night because they're riding together i guess there's some evidence that they were driving together yes they had they had been they were driving together they went to a location they smoke some blunt marijuana with p c p or whatever there was indication as well that the defendant was mad at the victim because you are still having because the evidence shows that on a prior occasions earlier if he said he was going to shoot this guy to the victim it shows that he has a reason for doing it it shows as well that he did not dispose of the gun the gun was a thirty eight special with one hundred ten grain semi jacket hollow points that's not a target pistol that was the weapon that was apparently testimony about how they had had a fight how the defendant hugged scuse me how the victim hugged the defendant apparently to make up and the defendant did not respond from this whole inference this whole chain of events culminating in the homicide the manner in which it was getting somebody in the car letting him get out of the bus stop shooting from the car i can go t four shots two of them struck the victim in the chest one grazed grazed in the back panteley but they found two slugs that had gone past the victim in this case in the wall checker auto parts or whatever it was so we know that the defendant fired not just two shots he fired four shots that tends to show the whole preparation plan of this thing and to show premeditation deliberation it was a setup pm bush got him in the car with they were going to go somewhere he let him out of the bus stop  professional in this case when he can't train pushed the defendant into sanely on that one lived in that one line in the states a brief answering brief on direct appeal the state of hell out of turning point it out that there was at least a split of authority there were two jurisdictions two state courts as i recall that accepted the idea or that condone the idea of it's not my office as i said i didn't try the case and i've tried a whole bunch of cases about one hundred felony jury trials myself that's not my customary practice the point being your honor is that in the first  county district attorney's ok what do you know what are their policy and no i do not i would expect that they probably don't do this very much regardless of whether or not it constitutes prosecutorial misconduct or not conceding that it is but even if it were misconduct it did not have a substantial an injur effect on the jury's verdict in this case given the given the evidence in the nevada supreme court noted that there had was not an objection by defense counsel in the air if there was one even assuming that it was there did not amount to play near the result once it's more than it should happen especially in a case here where you have a prosecutor over and over and over and over again stating to this person why did this person in line to this person why did this first and why i don't see how that can be defendant who's on first trial for his life here in terms of what's happening and the prosecutor is saying is this person lying is this person lying is this person line defense counsel says objection your honor the court 's i can't keep up with this i was trying to do some work i've got to really listen and pay attention now all right agreements they grew up together it's a tough neighborhood they dated quite a few of the same women and had disagreements at times over those relationships that were occurring and not happening and i would say that it's overwhelming evidence is not the fact that he was driving around with a girlfriend and didn't pick up his friend on one occasion i don't know how you're showing that that's deliberate in terms of him intending to kill him and it just so you have a firearm two months prior the state is trying to say that because you have a gun and that must mean that you're going to go out and kill someone with it i would submit that that's not the case the evidence that they were fighting that night what you have is a situation where mr hodges tried to hug and he didn't