prosecutor purposely discriminated on the basis of race during jury selection seven jurors are at issue and if the prosecutor struck even one of them on the basis of race that violated the equal protection clause i want to focus in particular on patricia wu the african american perspective juror who was the subject of the first batson motion at trial and more specifically i want to focus on why the record doesn't establish that the prosecutor struck patricia wu on the basis of race but first a comment on the standard of review this court should review this issue do novo that's because the trial court in this case failed to reach step three in the batson analysis he denied the motion only clearly refuted by the record and the magistrate judge i would note in the district court judge both agree that the trial court in this case that the record does show that the trial court failed to reach step three but i thought that the magistrate judge in this case she did not she missed it missed what the public court said on this issue or still least didn't discuss it yet and i would say it's only the latter and i would i would point out that she noted the the state appellate court's finding when it came to the second motion and noted that she needed to defer to that so she was clearly aware of the neet defer to that determination but she it must have determined that that that that that was refuted by the record here and that indeed the tr make this error so if we have a fine in by the state appellate court that in fact the trial court did rate did address the third step what how do we review that determination you ask whether there's clear and convincing i mean that's that's presumed correct answer that question first that's correct ok and i think it should be accounted for that the magistrate judge and the district court do agree with me on this point that that that the trial court failed in this way and do we have to conclude that the court of appeal california court of appeal was unreasonable in concluding that the superior court judge in artfully expressed his reasoning with respect to the third step but actually its job and followed batson that that should be reviewed under each one so i think the question the question is only whether that there's clear and convincing evidence in the record demonstrating that the trial court erred in this way and i think there absolutely is because the trial court again stated on the record this is my understanding my inquiry is limited to whether i can glean some records some reason that that would cause an attorney to use a strike that is simply not the so here's why the record does a status purposeful discrimination with respect to patricia w first she was the only african american jerk and i bet that made it into the panel and the prosecutor struck her second it's important to no court commented on the record that the prosecutors reasons were not very good as the supreme court has said the critical question step three is the persuasiveness of the prosecutor's reasons and the trial court has this pivotal role to play and his evaluation of the reasons were that they were not very good so even if that isn't decisive in the opponent's favor and i contend that it should be it's at least highly relevant that the t least two of the prosecutors reasons out of three at least two can't withstand scrutiny the first was that patricia wu had visited her grandson in prison and the prosecutor said she s uncomfortable anyone who has been inside a prison including in that context but two jurors served number six the numbers in number twelve who also had relatives or close acquaintances or both who had served time prison prison and the magistrate judge focused on the fact that the record doesn't indicate whether those whether the jurors visited their relatives in prison but the only reason that's the status of the records because the prosecutor asked patricia w whether she had and didn't ask any question whatsoever number six or number twelve and this court in green versus the mark focused on that fact that the lack of the prosecutor's questions that you would expect to see her answers that her stated concerns were genuine and in very similar facts to the issue there the prosecutor adds had said that the juror had said she visited her stepfather in prison and they didn't ask but several other jurors who had said that they had relatives who had been arrested or convicted about whether they had visited their petition so that's a crucial point it's astonishing if we're to believe that the prosecutor was concerned about this that she allowed to jurors to serve without even asking them this question and the second reason that the prosecutor gave was that patricia wu had a brother who was an attorney and he was a probate attorney and the magistrate judge recognized that facts on the record actually suggest that this one was protection and those are the fact that the prosecutor accepted the panel several times with a joy p on the jury it wasn't until the very end of jury selection that the defense struck her and she had no clue who was an attorney in fact a probate attorney and in addition the two alternate jurors who did serve reason when she did and so it cuts both ways it her reasons whatever they were weren't so overwhelming that she struck her at the very first opportunity but eventually she struck her i mean at the second she initially separate her once so she had reasons and the question for this court is what were the the cases that are usually cited for that point for or it's really a similar point it's not the same point in our cases where other jurors are the prosecutors accepting the panel with affect her as a juror but also didn't ask any other jurors whatsoever and it was the prosecutor's normal practice to ask i mean i mean in this case anyway to ask the entire panel a question at once does anybody hear blank and she didn't bother to ask the question is anyone else here also closely involved with their church and was she with her husband was the pastor yes right so it's more than just being involved didn't even bother to find out with respect to the jurors that's correct and so and i'm and again i'm pointing to the fact that the other two reasons she gave clearly don't withstand scrutiny and the fourth i would call this a category of reasons i s time is up but is everything that we know about the the hispanic or so the prosecutor gave a series of in persuasive unpersuasive implausible reasons that should all be brought to bear not just with respect to whether those hispanic jurors were struck off for improper reasons but also do those reasons and what happened with respect to those jurors is that that raises a question about the prosecutor's credibility in general and should also be even considered with respect to s please the court vincent la pierre tra on behalf of responded the district court properly determined that petitioners of fails to establish that the state court's decision was contrary to or an unreasonable application of supreme court pre with respect to the first that's a notion the important thing here is that the state court of appeal conducted its own comparative analysis and as the court noted in green such comparative analysis by the state the petition or cite several reasons why they believe the comparative analysis was incorrect or reached of the wrong conclusion however as the supreme court has routinely stated debatable inferences from the facts are not sufficient to establish an unreasonable application of precedent here the state appellate court clearly knew what its role was under batson and applied it and the decision is clearly understandable with respect that family members who had been to prison the two jurors that petitioner cite juror six and twelve stated that very clearly yes i have a cousin in law as well as a nephew who are in prison for drugs at this location and p w was the only one who had a much closer familial relationship or a grandson and she claimed to not know at all why he was in prison in los angeles and it was sort of that unusual answer you don't know why your grandson is in prison that prompted the prosecutor to further inquire when it was so turned in so that supports the state court of appeals comparative analysis which they explicitly compared p w against these honor and the second batson and when i tried cases as a prosecutor i liked people who worked retail so i'm just curious is this something that the state prosecutors are being trained that retail jurors are bad i just an odd i have to say i'm not sure it's the turn of this case but it's an odd reason to be given that someone works in retail as a reason to strike a juror yes or i do not know this this kind of prosecutor as i'm sure the court is aware even hunch sufficient as long as their race neutral in discussing it with colleagues you know perhaps based upon the posture of the case in the witnesses oftentimes retail employees it's an entry level position and you're trained to  be very customer oriented and non critical of your customers and in a case where you're really tasked with evaluating witness credibility perhaps the prosecutor felt that retail employees weren't suited to that sort of maybe said ways people who claim to be in retail don't go into any depth in that i'd again i don't know the prosecutor and i didn't discuss this with him but as the district court noted in its comparative analysis the prosecutor was consistent in that reasoning in that he did strike others non minority jurors who you think that a retail employee is particularly sensitive to this after i mean they're also trained to detect report and not particularly to like shoplifters now this wasn't a shoplifting case this was a violent robbery but i mean to expect that a retail person because of his or her position as a retail clerk should be sympathetic to or inclined to acquit reasons as long the other hand consistent if the reasons are nonsensical that is some reason to at least think you know maybe that's not the real reason yes your honor which leads to the comparative analysis and as the discourse said that may concerned about whether people are deeply involved with their church and therefore it's a real reason why p w was disqualified you never asked anybody else about their involvement in church so how do you respond to that what i believe bringing up her connection with the church and i can certainly understand as you bring it up spontaneously i believe bring it up in response to a question i can remember of the typical questions in the trial court include the occupation of your or your spouse and others adults who live in the who live in the household so she probably was responding to i live with my husband and he does this i can certainly understand why the prosecutor would not want to be interrogating everyone as to their possible connection with the church court correctly found that the state court decision was not unreasonable with respect to the first motion the district court did not find that that is not a conclusion that the district court reached the magistrate judge decided that we lose on grant the argument that the trial court failed it's impossible to conclude that the appellate court corrected that error because the appellate court stated that it was only reviewing whether the record had that minimum minimal evidence necessary to