start with the standard of review because i think the case is particularly easy on an overview we've identified three reasons why an overview applies in this case number one is the state court improper legal framework number two is the state courts declaration to merits or the minimum certain aspects of step three on the merits and number three is the state courts unreasonable determinations of fact and i think the unreasonable facts tion closely of course with the substance of the claim and so i'd like to address those in more fact the this court has held that they're essentially no decision to review no factual determination to review so you conduct an overview just collapses into itself in a sense it does ron i agree with that and that's what that it's not important  miller l two williams versus runnels johnson versus finn also say that we do not do speculation under bat's particular bats in step one and unfortunately the california state courts persists in permitting speculation in trying to figure out whether there'd been a promise facie case and i don't think at the stage of deciding whether there's a prime officially case the prosecutor the prosecutor or whoever is being challenged is required to state his or her reasons am i right on that true yes wrong well then if the prosecutor i'll say prosecutor although it's not necessarily usually is that if the prosecutor is not entitled not required to state his reasons i think the trial judge in figuring out whether the prime official case has no choice but to engage in speculation to a certain extent i agree or r and williams versus runnels i believe wrestled with this issue specifically and it and it wrestled with these sort of tension that we have between the supreme court telling us that we have to review the totality of the circumstances and so in that sense you want to correct we have it's not necessarily a permissible to think about possible reasons why the strike might have occurred but williams how the wood johnson versus finn reaffirmed is that that cannot be the sole reason you don't find a prima fascia case and that's precisely what happened in this case the trial judge said the reason i'm denying a prima fascia case is because i'm imagining a reason why the strike could have been permissible and that's the sole reason why the california court of appeal a firm and that is hear what my colleague from the attorney general's office view is because i the big us about the state courts court of appeal decision three who was a qualitative difference between drug use and drug arrest i'm sorry  what is ambiguous about the state courts court of appeals determination that there was a qualitative difference and therefore raise neutral he says between drug arrest and drug use but what i was saying was ambiguous or on or constitutes an adjudication on the merits for purposes of twenty four boy because what they said what they first said was we don't believe this is a stage three case and then it would proceed to discuss stage three but the question is whether that's an alternative holding su running very low on time i want to basically that with the time i have left we should discuss the inconsistency rationale this was david brown's big rationale he was his protection rationale encouraged to which the trial court rejected he returned to it  again as excused for belated questioning after he had already passed on george jones for cause it was the first explanation out of his mouth when he started reciting his step three explanations this was his go to explanation this is what he was really hang his hat on and it false mr jones was never inconsistent in her questionnaires she repeatedly and clearly explained that her relatives were subject to uncharged arrests under a questionnaire in the first question where she is no she even specifies supplemental questionnaire and he's putting shorthand on the form the handwriting on the form is not as round not that some understanding just the trial judge notes this distinction what's that but it doesn't help this distinction so the judge was aware of it as well with the judge she was not inconsistent if she was inconsistent your honour's five other jurors we've identified in our briefs nonblack seated jurors made the exact inconsistent answer that david brown accused mr jones of and he ceded and you never questioned them about it he put them on the jury because they weren't black let me ask you questions that it was the trial judge found that there was a race neutral reason for using a peremptory challenge against mr jones in that her brother had been arrested for drugs whereas a white person had abused drugs there was a qualitative difference let's suppose but the question here i agree with you the question there was improper explanation let's suppose further that the failure to read the charge or no no the charge was another improper question if we've got two improper reasons and one proper reason under ed when required to find this is a reasonable inaccurately referred to as drug prosecutions which was not true i believe at least five times truck court said there prosecutor very close relations prosecuted for drugs one with their we have no information that they were close relations at all they we know that the nature of the relationship five personally you so much cocaine methamphetamine pot and alcohol that he gave himself grand mal seizures and was unable to drive for six years not to mention i think he said a least two duis now we're saying that drug use is a drug use by somebody close to you is a brace neutral basis to kick somebody off the jury all we have here it we have we have what we have what we have george jones is the brother getting arrested for drugs and some other drug use and her childhood with her family journal thirty five gets on the jury without a question as far as i understand despite the fact that he gave himself seizures because essentially with all due respect to the gentleman he was basically a junkie for some pure if it's life and so if the argument is i don't know whether this is a meaningful distinction for our purposes but of course she's being asked about drug use arrests and so on with respect to relatives and with this other guy it's his it's his own drug use now whether that's a meaningful difference i don't know but this is a distinction you want to do it certainly  would seem to me that personal one's personal use of drug use of drugs is closer to home than one's brother but to the one we have no information because david brown never inquired about the actual nature of the relationship with the brother ok let's hear from the other side we've taken you two minutes over but know this this is a really troublesome case to me we've got a prosecutor who have visually violates that some of the track record of this particular prosecutor is all too clear and here he is again challenging the one african american person who sits on the panel ordinarily of course one swallow is not enough to make a spring one one challenge is not enough to give us a successful about mass and challenge on the other hand what do i do with the background of this particular prosecutor who has a clear record that i have ever seen with respect to a prosecutor who is a visual violator a babson he does have a past history anthony putting in this attempt to select a jury resulted in the trial judge granting the pats on motion was it the same judge was a kennedy both times i believe it was yes and it was also i mean sort of curious but he went about it i mean his general in same way there i mean i don't know quite what that tactic manes maybe it means he's hoping that the other side will knock them off first but in any event he's you know proceeding in at unusual fashion and he's and what he's doing as a result is is making it very difficult for the judge because he's got to start all over again i think i think fines of that's in violation which is what happened the first time yes i believe you're correct he is making it difficult for the judge and do you agree that the consequence of sustaining the batch and challenge by the judge in this last time around would be that you start all over again was that was there was that was going to happen oh yes if if the should grant the pats in motion than they would have had to start the jury selection process is the time they tried to come up with another solution and didn't and did not know he knew that if he did this it was going to start all over again whereas if he'd knocked her off earlier maybe something else what happened yes and what you've got is you've got a trial judge who is conscientious enough that if he's not convinced that this was no crime officially case he would have gone through and done another jury selection terms of i mean do you agree that we should i don't think they are your honor i think that the situation is that at the prime official stage it's up to the trial judge to make that determination now here you've got a prosecutor who has had problems explaining let's say that the trial judge is watching the jury selection and is thinking about you know if i were the defense attorney if i were the prosecutor will i want this juror on my panel and he's got a prospective juror up there and the trial judge is thinking to himself if i were the prosecutor i would never ever no matter who the prosecutor is i would never want this person because of this person's demeanor because of the overall situation ms jones does not appear to be such a person she's well educated she answers the questions very clearly she's quite an ambiguous and saying that these other things would not affect her judgment i mean i understand that if you have a notion that a black person is more likely to acquit you  person's demeanor not just what she says but how she says it why is it pertinent what the trial judge thinks he would do if he was that the prosecutor and i said turn it well it's it's important if the if the trial judge was thinking you know prosecutor would allow this person to be on the jury but that's not what he said he said this and that's not the standard he was applying maybe that's standard for fly but the standard was were there reasonable reasons for excluding her and that can't be that there was no red flags that one could see in terms of somebody who was just unacceptable the just wasn't there well the trial go back to that might have been reasonable reason for minimal and if it is supposed to be that minimal then that's fine i mean what we have here and i'll move on because i don't think i'm going to convince you this morning if i haven't done it in the the the appellant had failed to show with with respect to the third stage this is an unusual third stage in that the trial judge in announcing why he thought there had been no crime fresh case shown handed to the prosecutor on a platter reasons that he the trial judge would accept so the prosecutor being no dummy says yeah what you said judge i agree with that those are my reasons and then he adds a few that are really elaborations on the very same reasons the judge has already suggested to him would be acceptable that bothers me i have to say it doesn't mean that the prosecutors reasons weren't the same  says yeah yeah that's my answer but i have to say that whether or not prime official case was shown i find it deeply distressing that when the trial judge says there's there's no crime officially case the trial judge says out loud in court here is why there is no parameters of case here what are legitimate reasons why the prosecutor could have done that and then he asked the prosecutor what were your reasons and he says the ones you gave me judge terrific but also aside from that and the other reasons that i think there are some that were somewhat different from what the judge said i mean one was this notion and inconsistency notably he also found  and that was clearly wrong and you agree with that i'm sorry that he said there was an inconsistency between the two questionnaires because he said first that nobody in her family had been a defendant and then said that and these questionnaires have interesting questions but you know if they get interesting answers well exactly and to seize on that seem especially when many other people to the same thing seems like you're looking for something that's number one answer the question town question is have you a family or household member a close friend been a victim witness or defendant in a criminal matter she checks no later question twenty one have you any member of your family  close friends ever been arrested yes if yes please describe friends family members parenthesis arrested for drug related issues and then some questions were charges filed no was there a trial no do you feel the person was treated fairly yes well if the person if there are no charges were filed and there was no trial there was only an arrest well they were not defendants she's not this is perfectly consistent in fact  when asked if she would presume innocence she said yes i don't know anything about the case and he says that's an inconsistency because she was actually read the charges first of all why she read the charges i thought before that point read the charges what she was she read he is accused of murder but not he did this stated that he did that and you would try to find out whether she had a preconception about the case and she was trying to say she didn't the there was so that was also a made up thing it was just not there are any good are the reasons the judge said here are reasons why you could legitimately have have struck so one of my life with i'm left with the prosecutors is yes judge and here are some additional reasons that turn out to be not speaking today i've handled several cases of that nature and so i agree there are there are challenges of that nature i just i have real trouble closing my eyes to what's right here in front of me and question it's a judge the trial judge found there was no prime aphasia case yes he wasn't required to go on to step two instead three correct under california decisions he was required to go ahead and ask the prosecutor his reasons he was usually when he was not required to make a ruling at stage three but he was required to ask the prosecutor his reasons because answered my question argument well but the california supreme court had had to instruct the trial judges to have the prosecutor state his reasons for the record so that there would be a contemporaneous record of what his reasons were but that would be useful only in the event that well the idea was that it would be useful only in the fact that there was a reversal on appeal and then the case went back to the trial court to make a third stage ruling and that's going to be on a cold record at that point because it's going to be years later and so if the trial if the prosecutor or the defense attorney depending on which where the challenge was if the if the attorney had stated his reasons for the record at the time of the trial then there would be some contemporaneous record issues just didn't do it i don't actually know your honor i'd have to know i'd have to go back and look at the opinion in more detail to see exactly which issues they did a comparative analysis and i i know they did a comparative analysis but i'm not sure the extent of it prosecutor is reasons to already have stated the reasons so that the prosecutor can say i agree judge i think i think you have a point there and i think that you know that is something that perhaps hundred being basically a step to case and what the court said was because the state court applied an improper legal standard at step one we're doing the remaining steps to novo and in a footnote by the way we're also doing the noble because they didn't in a certain way because if you have a record saying we define no prima facie case but we're going to say some cursory things about steps two and three it's doesn't make sense to pull out of stock in that because you don't really know what their analysis is and in this case itself  david brown's explanations for this strike the inconsistency thing is false it's also applied to numerous other jurisdictions between drug charge and drug use not race the difference between drug well is that not a qualitative difference those are yes those are those are those are distinct reasons for the law enforcement context with the was the explanation provided by the trial court which i'm asking this court to ignore because it wasn't david brown's original thing but it was also wrong  addressing the issue i have not seen any published authority on this particular question i think it's absolutely inconsistent with batson to credit an explanation which is provided by the judge who was ponce under california precedent put that's the language that's been used yes but with the court has already identified and we have identified the numerous unreasonable determinations of fact this is a this is it's clear from cass are in other cases we're doing this on a twenty to fifty five d two as if it's a fact thing these are absolutely unreasonable facts she was not inconsistent she was told by the judge that she didn't know anything about the case she repeated that in her questionnaire she repeated it to david brown's face when he was questioning her he never pos to ask about it he never expressed concern about it he just let he just kept questioning her about using her as a sounding board to rehabilitate pro prosecution jurors because she was the one giving right answers