give enough attention to both but i want to begin with the fair cross section claim here three judges have reached the merits of this claim judge nice denise page good thomas ludington and david lawson all three have found that there is merit in this claim and in lawson as a court is likely aware recently changed his mind about this case and found that mr parks has a meritorious claim putting aside for a moment the procedural default question has a meritorious claim that fairness or the appearance of fairness on his veneer didn't cure the underlying fair process in violation no judge has phone this claim doesn't have merit in a federal judge rather it would be unfair to deprive mr parks of a prejudice in korean now and you know it says it leaves open the possibility race of the jurors to fan the victim might have some relevance in the precious and courageous that helps you particularly some of the arguments you've made but then it says the most important aspect  on two fronts one i don't see an argument i mean i don't actually see an argument on this point so that's problematic by itself but i i think i kind of understand why there isn't one seems like a pretty tough it seems like a strong case the evidence was strong here yeah exactly so why doesn't i mean so even though you may be right that some of these cases deserve hearings deserve to move on i'm not sure i'm understanding why this one does here's why ambrose the three of us argued this i think close to two hours with three combined cases and nobody took the position that it was possible to show actual prejudice we all agreed there are three united states supreme court cases say it's impossible it's unquantifiable the ambrose panel sent it back for hearings didn't resolve it on its own and where we are today not in this case but we have a much more robust record which includes a lot of empirical evidence saying that minorities are less likely to convict across the board even accounting for the strength of the i'm just so i just want to tell me if i'm missing something i get all that stuff i'm willing to accept that ambros may allow courts to think about it and whether that requires a new trial but i can understand given what  why a significant part of the inquiry is a threshold question i mean for example don't even make it this case just a hypothetical is it's not just that the defendant doesn't testify that just there's just a lot there's one hundred witnesses that the rape i mean everybody saw the rape the defendant doesn't testify there clearly was a rape you wouldn't go into this all of this evidence about race in veneers which you would say you wouldn't be at nor it was coun for the attorney general who asked the expert witness during the evidence you're hearing we had in front of judge ludington did you read our brief in the in the parks case did you see how strong the evidence was there and the witness said yes i did and yes my findings would apply under those circumstances but white jurors are l evidence from another case that's true and that's why every man has a is appropriate i'm not saying the strength of the evidence you're saying is irrelevant to your answer is i understand it your answer to my question is if you have a situation where you know it's a rape  saw it there's no contrary evidence you would still send it back that's what the record shows in the court should consider the strength of the evidence alongside the empirical evidence in the way that to make a decision whether or not  race could have played a role here now it's my position of the embryos on the stand admitted he did we don't we talked a little bit at the hearing about the sort of long plea types of cases that maybe the death penalty cases were some to go through the guilt phase just to start setting up mitigation or aspect of it when you look at the opinion ambrose and ambrose has actual prejudice and then you go off on all the strength of the evidence to offer ambrose also tells us that for consideration of the cross section klein who actually showed up what jurors actually appeared to dave his trial is not a consideration in evaluating the merits of the fair cross section kline is it relevant in the decision with regard to actual prejudice that's a point that the respondent brought up in their letter brief and i agree that's an important question how even if we have merit to the claim how can we show his purchase we had four people in the  room you're saying that more than four i mean it was it was the right number the problem is is that there were there was also one on representation of hispanics that we have a twenty seven percent let's assume that you've got some problems with that what's the answer to the question finds that the hispanics as a new claim that was an exhausted and can't reach that and can only focus on the fact that he can't be actually precious because he had four african americans in the room my answer to that is it would be patently unfair to for mr parks to be looking in when this court has an opportunity to reexamine ambrose in light of the empirical record that we're developing in the district courts now he has a meritorious claim on the merits and they are i mean i assume were  ambrose i have some i mean i have some questions frankly about ambrose in this actual prejudice climb given the nature of a cross section violation but there will be a time the rig's salmon but that the white male we're operating within we are and we're considering actual prejudice do we consider him the the rational composition of the panel that actually appeared on the day of trial i think the court can but i'll say that was that was  if i see the difficulty making the argument that it should be different we had exactly what we should have had but the problem is we were excluding hispanics both through the fair cross section violation in the equal protection claim violation it's not a claim here he disavowed it that's correct he didn't want to exhaust it my argument would be even if you take into account the rightful composition of the panel that appeared on the day of trial the day of jury selection and even if you take into a k out the strength of the case against mr parks there is still something to consider on re may and and that would be with respect to actual prejudice and that would be evidence of the  then the difficulty would be the first instance that of the district court yeah figure out how that you had after four edges but again maybe i'm just missing this but it just doesn't seem fair to the district court we've got hambro saying i couldn't the most important aspect is the strength of the case you're saying it doesn't matter how strong it is send it back so they can kind of think of it all it seems to me don't we owe it to them to say listen and i know this doesn't help your client but i'm just telling you straight up my instinct there are some cases the top get further inquiry there are some sufficiently weak cases are ones where there just isn't a plausible argument as to the merits and we just we're narrowing what an ambrose claim is narrowing but just by saying it's not everything which is i think and i get why you're arguing it's everything but i just can't imagine it's a district court supposed to do how do you weigh you know it's how long racist really but that's what it did and so it would be unfair to exclude this case from the class when the underlying merit based on ambros as well again ambrose i think there will be a time when the record is there to reexamine that what happens to the argument there wasn't the record amaryllis and again my my primary point as to this is is yes to hispanics that is not a separate claim he was a pro se petitioner he said african americans were excluded he could have said minorities the state court would have kicked him out of court for the same reason that he didn't he didn't raise the claim before the jury was sworn had nothing to do with the term he used african americans versus minorities the claim was preserved and based on hispanics alone that's hearing in federal court and i said it with all respect that's just wrong that's not what pin holes are says unless justice brier was reading can also wrong that's not what it says what it says is you resolve twenty to fifty four d based on the state court record but in a case like this he asked for a hearing consistently although he alleged every fact that he needed to prove a little bit different situation from a lot of the defendants who don't do that here is he's in a much more advantageous position who saw the issue who allege those facts but this situation is not uncommon this catch twenty two rulings by the michigan appellate court to say we're not going to give you a hearing because you haven't proven your claim this court has an opportunity in this case to substantially improve the quality of state court post conviction litigation in michigan how in the world this just keeps bother if you sit this case that for an evidentiary hearing it is impossible to replay what happened and whose fault is that in years ago and i mean it's just impossible and whose fault is that mr parks asked for a hearing but i think that here to defend it is in some ways disadvantaged by that because i mean the government maybe but i mean he's got theoretically a private face a case of discrimination but now the government can look up look at a code record and perhaps the government says well i pressure on the state courts pin holster was a game changer absolutely judge and you were right when you said to me a few years ago that that this this is not a good case for his petitioners but as a seventh circuit now is reckless recognize the fifth circuit is not recognized when the state courts don't give you that hearing that you need to prove your claim the federal hearings to know now and what stronger incentive can there be for the state courts to give somebody the first shot that's supposed to be the main event when he brings up the state court within a year they need to give him the hearing and if they make the finding that there was a strategic reason where there was no discrimination that's basically going to be untouchable in this under twenty two fifty four d but if they punt they can't claim shelter under that but when they wouldn't resolve the factual issue themselves your red lights on judgment yes let's just make sure i'm understanding what if there's still deference to state courts about whether to have a hearing right here so why wouldn't why wouldn't this work this way that you know you asked for the hearing in state court which happened state courts and now we just don't think once worn it because we think on the record we can deal with the claim in it and i guess what i'm struggling with a little bit is don't you have to pierce that before you get a federal hearing and that seems like a very tough thing to pierce it's like an evidentiary ruling the state court has the complete braga to say based on the allegations you've given us you're not entitled to really for the following reasons ok and if that's a reasonable decision based on the allegations before the court then it stands up under twenty to fifty four days but the allegations we have here are that the prosecutor exercise or peremptory is for racist reasons for racially prejudicial reasons and that a bad some objection would have been sustained those are the allegations so the state court wants to rely on the allegations themselves go ahead but your own peril if that's not where you want to be remanded for here is the record show how many peremptory as for use by the prosecution i believe it does but i can't say for certain elso system tourney general for the state of michigan on the behalf of warden paul klee appellant has asked this court to remain in this matter back to district court so that it can be the one to determine whether or not there is a actual prejudice so as to excuse the procedural default of his fair cross section claim under ambrose b booker and i think as judge sutton as you were alluding to during the discussion with brother counsel i think such a remained on the facts of this particular case is entirely un unnecessary and quite frankly would be a waste of time and the reason i think has a little bit more to do than just the the overwhelming strength of the evidence and i can get into that a little bit later but one of the factors and i think you it judge givens in questioning brother culture was the fact that percs had four african americans on his forty five person the near what's interesting about that particular fan act is that that almost perfectly mirrors the percentage of jury eligible african americans and can county michigan in other words ambrose said we didn't look to that correct in deciding whether or not there was a fair cross section problem for the merits of a fair cross section claim that's correct that you would look at it at a range of the nears not necessarily the veneer that the petitioner had but what we're asserting is that that evidence may be won not as a political tool to a merits adjudication of  process claim is nonetheless very powerful and very relevant when we're looking to determine whether or not perps has shown the requisite actual prejudice is there and is that you would rely on to say that the presence of the four african americans on the near is relevant to prejudice i don't have a case citation specifically and it's something that's it may very well be this case ultimately when it when this court issues as opinion but certainly  and i agree with what i said it differ depending on the merits as you put it versus the actual prejudice is whether there were for the near of forty five well because in terms of actual prejudice we're looking at his trial his pettitte jury his the new year those are the things that we look at in addition to the evidence to determine whether or not there was actual prejudice in terms of the merits adjudication of a fair cross action claim that is is much dicier and i think i have to agree with brother counsel that i think after especially after the ambrose decision trying to say well there were the presence of for african americans that somehow that shows a no disparity  for purposes of the second prong of fear and i'm not so sure that would fly now but it certainly we believe is very relevant to demonstrating actual prejudice and what would you rely on for that statement are there the classic cases that tell us the factors to rely on for actual prejudice that well would support your view i think the ambrose decision it did state as judge sutton reiterated that the most important factor is the strength of the evidence of it that  or in looking at the vin year for the actual prejudice problem no i have to concede that point i don't have any case isn't the simplest path here that if the most important thing is the strength of the evidence and they're not arguing strength of evidence i i mean that that's not going to be a lot of claims it just happens to be this one and then you avoid the issue because it's i will say it seems really strange the four forty five is not relevant to merits but it's relevant to prejudice that's a head scratcher to me it is a bit  it's a why would i why do we have to go do that this court doesn't have to i think it can look at the strength of the evidence in this case and determine based on that it doesn't need to send it back to the district court this case has been kicking around the conviction occurred in two thousand and one he found his he views petition in two thousand and five we're now in two thousand and thirteen we send it back to the district court let's just assume we do that and the district court makes ruling on actual prejudice it's up here again i mean we're probably looking at two thousand and fifteen or later i mean usually we look to district courts to make factual kinds of finding and that would be appropriate in most cases i think this is one of those cases though where the evidence is so strong it's almost ind e that it could be denied that the evidence the standard that ambrose talks about where there's a case that so strong and the defense so weak that it's highly improbable that an unbiased jury would have quit and in this case i mean when you think about the facts you had a police officer bursting into the apartment she's screaming he has his pants down around his knees she's screaming she has blood all over her face furnitures is tumbled around in the apartment in it but i don't even i'm not even sure we have to go there he's not arguing the strength of the evidence no he's not so i just i guess i stopped there i mean i think the legal question presented in this case is in order to show high actual prez's do you have to make a threshold showing that there's some strength of your kit you have to have something on that balance but i think i'd argue there's anything in the balance and they're saying it doesn't matter because there's enough other factors that you could potentially make up for it and i guess my question is is that really so i would think you'd have to have some strength of evidence to move on that's been our argument in the district courts and what's happened is we counsel has tried to to have a hearings to bring in expert witnesses about jury selection and so on what we've tried to argue is is in some of these cases the evidence is so strong it is a threshold question in a sense because that is the factor the most important factor opinion so it's been our position in the district courts that you don't even get to this worrying about whether or not certain reasons would be more likely to acquit or convict or or any of that scientific evidence or social science that the petitioner is trying to present some other cases in a case like this i don't know how you dispute that this isn't one of those cases that falls squarely within ambrose when it's talking about the strength of the evidence being overwhelming and the defense so weak i mean this defense was absolutely absurd i mean his he made a statement and he testified at trial when i was walking down the street and she saw me and called me over and you know these women are always calling me to have sex with them and i sometimes give the money and i didn't see any injury on her face i have focused you on set or else you tell judge moore that you didn't know of any cases on the point for whether the actual composition of the new york could be considered in determining prejudice do you know of any cases in and now in this context i'm thinking of things like let's say there had been a problem in the selection of the veneer but it wasn't such that of to miss lee the panel actually selected was not representative or in a batson situation where s ask there was i wish there was this is sort of a novel situation and in fact one of the first judges to even come up with this in some respect was was judge lawson who was the lower court judge in this case who said that he was addressing the merits that well how can you say there was a fair prospect of violation when there wasn't fact for african americans on this particular jury veneer we're taking that and we're saying well all right he's now and i obviously judge lawson has said in another case that he now repudiates that language in this particular decision and that's fine but but i don't think that precludes us from saying it is a relevant factor beyond the threshold question of the actual evidence presented and the strength of the evidence presented could you address the batson challenge absolutely i'd be happy to do that what what happened here was and i think it's  it's important to to really look closely and one of the things i did when preparing for a like human as well as the attorney for my office who wrote this brief was look very closely at the white deer and before i even get into that that the bets in claim itself was was waived error was extinguished alternatively it could be considered a procedural default now the ineffective assistance of counsel claim that was in our position addressed by the michigan court of a appeals and i think they're pretty clear in stating that based on the record we have before us based on this record we don't see any evidence of misconduct on the part of the prosecutor doesn't the court of appeals isn't the problem here is the court of appeals doesn't reflect any understanding of the paradigm that the supreme court has established within which these that sin issues are to be considered i mean that on this record had an objection been made the proper conclusion would have been that there was a pram a face a case of discrimination and the prosecutor would therefore have been called upon under that paradigm to explain i mean to explain in we would have gone on from there but the the pattern of challenges under the applicable paradigm itself provide the evidence of discrimination does and well i think the record of this case reflects i think you can reasonably infer and i think this is what the michigan court of appeals did and we have to presume looking at this as a as a federal heebie as court giving the state court every benefit of the doubt when they said there is no evidence of misconduct on the part who are speculating back going beyond the pattern of of the challenges that were exercised not looking to reasons pretty well i think yes i think i don't know that i would call it speculation i think it's a reasonable inference of them certainly the prosecutor was never called upon to provide any articulation of the reasons for the exercise of the challenge because there wasn't an objection wasn't an objection that's correct and that's part of the and just to fit the process was short circuited that the lack of an objection  nothing in the record in the void your transcript itself which indicates what the race of these individuals were there were some documents that were attached to motions to re mandan responses to motion to remain and the affidavits in those affidavits have come up through the vs process of well in which there were three individuals who identified themselves as african americans and one of the affidavits references a fourth african american and they all say i was excused from tora lee by the prosecutor from this case and there's a fourth affidavit the in all white jury and once you have that i think i think the michigan court of appeals could have and let me just very quickly say one or couple of words about each of these four jurors  i wouldn't call it speculation i think it's a reasonable inference from the record the michigan court of appeals said there is no evidence of misconduct on this record and so you can read this and say oh ok this is why i was removed because he worked with w defendants in a ministry com you're talking about the michigan court of appeals is this the opinion of august two thousand and three is that the yes i believe so yes and what it is i see it just simply says nor does the record indicate that the prosecutor exercised her peremptory challenges to remove african americans from the jury because of their race and that's that's advice i just was wondering if there's something else that you were relying on that i had missed no i think that's that's t s you're relying on the transcript you're the transferring out scenarios that might have made since but we're not articulating it right and he b s but i mean that's the way it works you have an opinion and you have a transcript and you decide with the opinion transcript match break and that's federal habeas practice that's that's what richer a perimeter is that you know you're ordinarily not called upon to explain that that's batson constitutes an exception that that's crept in and we can assume from the facts or the presumption under strickland and the double deference afforded stricklin and under ed but is that he performed objectively reasonably that there wasn't deficient performance so he observe all of this occurring u turn he said i'm not going to drop i don't see a problem with this and that's a reasonable inference from the facts of this case and i think looking at the what the commission court of appeals did i think there's nothing wrong that that simple statement judge moore is enough to say there's a merits adjudication here and let me just very quickly say what would be the point of having a hearing even six months or six years later i mean quite frankly the time to do it would have been right when all of this was occurring it's going to be very difficult whether it was six months later or now six years down the road for the prosecutors they want try to hundreds of cases since i don't know that you know i don't know how back cuts because i'm at this think that shows the cost of victor the trial just because there's a new trial and i don't know him well i assume courts have said that you wouldn't you would now round everybody up and decide whether you can sustain the verdict based on everyone's memory i think all these years ago i would have just thought the courts would say listen if we got this kind of a problem we have a new trial well i think the prosecutor what should have happened if i may answer your question which would have happened if the defense counsel believed that there was a potential batson issue claim well the michigan court of appeals denied the motion to remain and then it looked at the existing record and said look there's there's no need for any further record here based on the record we have we see no evidence of legal frame the analytical crime work permits or requires a finding of discrimination on this record then that then that analytical would prove that the inference of discrimination not some affirmative evidence as to what was in the prosecutor's mind well and when i have seen these hearings if i can continue to answer your question  they tend to go through the whole the whole gamut even when they're done later on i mean that that seems to be the history what i've seen these cases come back for evidence or hearings on a motion or email and or even in a federal court context so it it that seems to be everyone's trying to justify what happened the prosecutor trying to recall while i did what i did defense counsel trying to recall why didn't i object and it's just a difficult thing to do any time other than contemporaneously right but it but assuming that there is a potential i see clay there has to be some way that this can be got into in an appropriate caves in an appropriate case this one was not an appropriate case because  the record itself demonstrated there was no misconduct on the part of the prosecutor they looked at the end and we can test that out by looking at what the questions were yes and the colloquy in the  review that would be exactly how we believe it should  that's from the factual allegations in the motion to remember an evidentiary hearing filed within a year of conviction with the mission court of appeals this court of appeals rejected that the court of appeals rejected a hearing to test that world is his opportunity to prove that claim oh so i'm just now speculating but i suppose that defense counsel could have actually david's that he could present i'm making this up so you tell me that i'm buying that he could present to the michigan court of appeals that every viewing court in michigan supreme court or a hey b s court could investigate it had affidavit it from the prosecutor saying i'm a racist right apparently that is in their mind the only thing that could possibly render this decision unreasonable as though there were affidavits presented to them ye reach this and then a couple paragraphs later i think they said you moved for hearing we previously denied it so we're stuck with the record we have and you haven't proven that the prosecutor was racist it's it makes you bang your head against the wall and this court has an opportunity i understand the practical difficult ones are tell me exactly what you're asking us to do you're saying the there is a constitutional requirement to have the hearing that that was the mistake i mean because obviously courts of appeals can rule as a matter of law on some things and they can look at the al compare him to the transcript i mean you can get make the argument that that doesn't work here because you're going to miss too much or you've got this whole problem of what could what is the transcript reveal of certain questions weren't asked but i'm not saying the mission court of appeals has to remain for hearing every time somebody asks for one of what i'm saying is that when they refuse when this court refuses to remand for a hearing to develop the actual facts what actually happened then it binds itself to the allegations the petition makes here i mean how many years before pinholes to where we he made the strongest set of possible allegations he could have made and still didn't get that hearing that's that's the record against which the reasonable miss of the state court decision is judged that's not his problem is not this court's problem if the michigan courts want questions of i c and bats and things like that to be resolved when people's memories  when when they might recall the case with part of it to do we've been hearing and we're part of that program using here we saying this when they say so i guess the key point was they thought it was not ineffective assistance pran one was in a failing and prodding one because they didn't think there was a problem so they're there for the first point in our ideas to say that was clearly unreasonable or the record before the state court did not allow for the reasonable rejection of the bats and strickland claim ok that was and we have to clear twenty two fifty four d there's still a question and we have proof problems and they have proof problems they're still a factual question though of whether or not there was a bat some strickland violation and that's going to be at the novo hearing in federal court of the seventh circuit said no the fifth circuit said now it gets better but it's up to the state courts if you want the protection of this extremely deferential standard given the hearing yourself you know it strikes me that if i think we're back to kind of there we started but the when you have articulated and structured this particular issue in your brief in your argument sounds more like you are arguing that we have some review the discretionary denial of a never did three hearing in state court it's not that i would actually i mean the stronger position is that you're not precluded from getting that's under this statute and and but then you've got to show you got to take what actually happened and structure that within the context of  unreasonable for denying a hearing that wasn't my that's not the way i chose to frame yeah i don't think you can i believe the state court decision on the record before a perp and holster strictly looking at the record before the state court decisions on reason we can when somebody makes those allegations and ask for and to prove them you're stuck with those allegations if you don't give them that hearing that was an unreasonable decision i kind of get what you're saying you're saying we only think of the allegations that's not quite true there still is a record w some that there were some explanations for what the prosecutor did that's nice but that's not what she said that's not what the prosecutor said you're saying it's not in the transcript no i'm saying that was not her reason for there were coming up with reasons that may have supported a nondiscriminatory nine batson violated i'm just asking about reasons that are in the transcript or not some of the transcript we don't have the batson where the three step that's an inquiry that has to take place in this circumstance we don't have it we're we're putting it together we have his allegations and thats it thank you very much thank you very much and you're the federal public defender so we can thank you may criminal justice act people will thank you thank you for your representation of the state thank you both it's an interesting case and it will be submitted