a prosecutor simply has to state is reasons as best you can and stand or fall on the possibility of those reasons here the trial judge found those reasons implausible given right because of a particular driver one of them is at least arguably protection but the other one is absolutely solid what happens can you still exclude the juror based upon the the legitimate valid non ok if you have one good reason and one possibly protection reason under the case law what happens isn't that ok then the bajan challenge fails to honor actually in this case in this circuit that question is still open the california courts have recently a recent case douglas i think within the last few weeks has affirmed that makes motive from the title seven doesn't apply because we're dealing with something particularly sensitive here which is actually the integrity of the court system in the right and we talk about that because i spent some time this week thinking about that to about two reasons and the whole scheme as i read this case of the idea is that it's really hard to get it pretext which is why we say right now on your feet what's the reason why yes the idea that you don't go back to your office and think about it i want to know right now that's the i that's what the courts must do and by the way it strikes me the court was really trying to do that here so i'm not sure if there's two reasons if we ought to be looking at the first reason the comes out of the prosecutor's mouth rather than the ones that the prosecutor can think up upon reflection i don't know that that hypothetical helps here but i but i think it is an open question and it seems to me that we need to look at for the most spontaneous answer your honor and i think the only juror that the that the prosecutor the two reasons for both of those i think scream out is pretext i would like to make one other mention it's a pretext to use a per defend a printer and challenge because a potential juror has a relative to who was criminally prosecuted and who's in prison in the abstract no your honor but in this case that wasn't the answer george smith's question i don't think so because we're looking at the the prosecutor's actual reason and her actual reason in this case wasn't that striking everyone with a family member with a negative law enforcement contact was a quixotic adventure in this case  law enforcement contact and close relatives in prison but yes yes in fact the prosecutor accepted five different panelists with personal or family arrests and i just to qualify your question judge hawkins there wasn't someone who ms hamilton's father wasn't currently in prison all we know is that back in one nine hundred ninety four almost thirteen years ago he had been in prison we don't know what crime it was for we don't know how long it was for we don't know anything about the sentence it could have been an overnight detention and all of those unknown uninformed details the prosecutor can ask about which is also an evidence of pretext at whether the state court's decision this case the court or he'll was based on an unreasonable determination of the facts in light of the evidence presented yes a court yes how do you meet that burden i mean these are not it is not bad people the trial judge did it this job could be done presumably the court of appeals sincere people that went through it what is it in the record that meets the standard of ed to overturn this conviction this in this case the court of appeals comparative analysis was fundamentally flawed because they disregarded every other juror with law enforcement contacts because those people didn't have tattoos and first off that's contrary to mill around which explains comparative analysis is not based on assuming jurors are product of cookie cutter sites but it's also an unreasonable interpretation of the prosecutor's own litmus test purport what if she didn't ultimately i mean it that's part of the problem is that this rolls out over a period of time and now with hindsight we can see that she did not but what did the trial judge know at the time at the time which the challenge was mean but we still had several still it's just difficult the judge has to make the call at the time back in and now with hindsight we know that there were several jurors who were seated with as you said contacts to the right to law enforcement but the judge didn't know that at the time that he correct do now that the that that that rationale wasn't applied consistently but i think one of the things that's important is so yes for the court of appeal from the court of filters for perspective they they knew how this played out from the trial judge's perspective one of the things that i found prop problematic was that he he does he rejected every one of the reasons he ultimately said he was going to find it for reasons other than racial bias and i find you personally you credible and he didn't instead of focusing on the prosecutor's reasons and that's why i started with that quote he rejected the reasons but went to the prosecutor at the end of the day he says i think subjectively prosecutor you believe that this tattoo indicates some kind of disrespect for authority or something like that so what do we do with his basically it is a credibility that you know from i'm not sure if you sense that because he says it's a silly reason it only says i find you credible i'm going to find you credible nine of these meaning this really is your reason you're not doing this is as as a pretext should not read it that way and if not why not i don't think so i think he is he an reason i have we ever said that we're trying to get at whether the reason is racial bias that's what we're trying to get at actually around are racially motivated so i think that's another problem is it's easy as you know i think we do we are dealing with people who aren't they're not overt racists but i think that i think it's especially the prosecutor with mr belton is acting on racial stereotypes and perhaps with ms hamilton as well because what counsel with with respect you ended up in this case with the number of african american jurors you ended up with some people that had law enforcement experience as it turns out there was somebody that had a tattoo under a collar that was seen but whatever but that but the reality is that at the end of the day in an ed appeal that the trial judge has to determine whether the reason given by the prosecution is legitimate ultimately it's like any other credibility determination is it not i mean  the judge looks at the whole totality of the circumstances considered perhaps the reputation of the prosecutor for past experience i don't know for sure but then that he made a determination that there was there  credibility then you got the court of appeals that went through this and found the same way you've got a very steep climb here do you not when you have these two in effect credibility of determination one on the trial level and then whether you have an unreasonable one i already mentioned which is contrary to miller out by trying to do a cookie cutter analysis and refusing to analyze because juror one son was arrested only two years ago in contra and the prosecutor said i'm looking at recent arrest recent and then she admitted that her and hamilton's father's arrest is not she used word not a short time ago so she's calm she is just making up are reasons and i don't think they're i think they're pretext or i think the record shows that right now it's very inconsistent to be sure and it's troubling and then i'm troubled by this credibility determination what i keep calling a credibility determination it sounds like we argument is that the prosecutor what the what the judge is failing to see and what the court of appeals is failing to see is that the judge has made the call which is these these reasons don't make sense these are silly reasons and that and that and that's where they used objective lee believe them or not what we're getting at here is implied racial bias the prosecutor may not even recognize in her own self is that right i think that's an aspect of it i think that's an aspect of what's going on there we get back do we not to the question that i started with which is if you have a legitimate that nobody really questions and you said that alongside of what my colleague is aptly referred to as a silly reason do you not still give the trial judge and a basis for making this determination of whether one solid reason one silly reason if the judge thinks ok they got a solid reason i'm going to affirm that this was not pretextual does that work or does it not work your honor it would help me if i had some factual content because this is a factual case with a solid reason is the hard one so and that's that you know about the contact with law enforcement if your argument there that it wasn't consistently what is your argument that my argument for equity purposes like this court can do  if she's going to make another challenge to a racial minority she's she's going to think long and hard about it but that's what that's all speculation and i understand your reason for saying that there's nothing in the record to back that up is there a record that i just speculation that you're offering the trial judge on the other hand had to deal with the actual situation perhaps one really solid one with the law enforcement connection the tattoos maybe not so much so we are dealing with the question of what do we do with a judge who has once solid reason and one end quote silly reason and quote which she said her reason was recent arrests she said that was her reason and that was the only way she was going to actually get at one thirty third of the panel that but will give you a little bit of extra time but not much so think hard about what you want to say ok let's hear from the government to be more than just silly but pretext to do with nor is it in looking at the second reason it's possible and rice versus collins there was somewhat of a similar situation with respect to a prosecutor giving multiple reasons for excusing or jor and i believe it was the argument was that the court gave too much weight to the gender possible gender reason for excusing and the court stated in rice that they could look to the other neutral reasons that were given to determine that the prosecutor was not being prete and i would like to remind the court i respectfully that the reasons given whether the court finds those silly or perhaps trivial namely the tattoo reason that's the step to process and to the extent that those reasons on their face are race neutral we're down at that point unless there's something inherently discriminatory in there in which case they are not  suspect is the prevalence of tattoos correct which is why the court loading the deputy the second chair in the prosecution of this case right i think that what the trial court did when it was looking at that reason offered by the prosecutor is that yes tattoos are prevalent in society but the reasonable inference is yes the court didn't like that reason and it would have chose not chosen that reason perhaps as  judge kristen pointed out the trial court says he even felt awkward for not having a tattoo but that's the step to now you go to step three and you have the trial court doing exactly what it's supposed to do pursu and that is looking at the genuineness of the motive for the prosecutor's reasons for excusing hamilton in this case but that's why it matters a lot to me that the reason that that's why i'm calling it  silly and he says i believe that used to ject if we believe this it makes no sense to me i believe you subjectively believe this so satisfy the law enforcement for a contact of law enforcement but do we do do we just look at the credibility to terminations are we supposed to be satisfied with that if the prosecutor is given a reason that really has no it had no property value if you're trying to look to what she said she was trying to look to which is somebody who is demonstrating a disrespect or or are not nonconformity i think at step three you have to look at what the trial court did and analyzing the prosecutor's reasons and as the supreme court has repeatedly said the trial court is in the best position to look beyond the facial reason and that's the genuineness of the motive and looking at the demeanor and the tone of the prosecutor the way he's handled the case and that's exactly what the trial court said yes but you're not answering the question that he's really raising the deeper issue here here is the what the supreme court is caution about right which is the employee the racial bias that all of us have and don't even know we've got it we don't even know we've got it so so so it seems to me this case really tease that she's at that issue she really believes something makes no sense to me and at what point does a trial court have to say you know what you're acting on implicit bias you don't even see it yourself it's not what the supreme court saying that patents all about i think what but still what's at issue here is the trial court has to look at the totality of the circumstances and again still looking at the demeanor the tone of how the prosecutor is handling the case so while that may be true you have to look at the totality of circumstances and not just the reason that's proffered ok so walk me through that what am i missing then in the totality of the circumstances about this concerning challenge well what we can't see on the record the cold record is just  the atmosphere that's in the courtroom there at the trial court is as the supreme court has repeatedly said is in the best position to view these live i don't know tones demeanors how the prosecutor is acting maybe how she's explaining how she just you know what's in her heart and in his in mind as the trial court said when it was denying the motion is her you know letter tony is when she's explaining she just doesn't believe that anyone with a visible tattoo that i believe you you subjectively believe this reason and this reason makes no sense to me he's made clear on the record just makes no sense what do we do with that i think that you look beyond that and you go i'm and i sound like i'm sorry repeating myself but you know you take that for what it is and as you pointed out the trial court essentially is finding that to be silly or trivial and that step and that's that's the step to process where batson says or per cat perhaps says that it doesn't have to be possible or chris ways of at that point ok two of them an american flag visible that shows disrespect for society you don't know the context of the tattoos or she would have an issue with that i think sounds like she she might because she said even though that it wasn't mine she said you have a visible tattoo you're out correct so i was in the marine corps during vietnam and a lot of my buddies officers that were in the vineyard panel that had visible tattoos she was not going to be picking them for her jury but that is her belief that she that's her non racially mode of facial nondiscriminatory belief that visible tattoos contact with law enforcement but it's a reason that is applied here quite inconsistently does that give us a another shit that we should be weighing when deciding whether this what we've really got here is this is a sincerely held belief that really is indicative of racial bias racial racially motivated challenge with respect to the reason for excusing hamilton because her father was incarcerated i don't think it's inconsistent because the fact of the matter is that her father was incarcerated as the district court pointed out and scuse me in analyzing this issue in addition in combining the two reasons that you have a record cite for the what you just said that he's still incarcerated i don't think we know but just th this district court with saying that her father was actually incarcerated at the time given that recently and she and the prosecutor really responds that this is a recent episode and there are other jurors seated who are have much more recent contact recent sorry the difference i'm trying to make is that her father had been incarcerated we don't know when that ended we know that he passed away in two thousand right we don't know where he died while incarcerated or not but the point being is that he was actually incarcerated the three jurors that remained on the panel their contacts family contacts were arrest we don't know if they led to convictions or incarcerations and that's a distinction that the district court pointed out and it's  determining overall in combination with the two reasons that the prosecutor was not being purposefully discriminatory in excluding and i think that's that distinction shows that we're not having an inconsistent application here there's a there's a strong difference between someone being incarcerated versus just being arrested is the distinction you're making one that the prosecutor ever pointed out it did not this is one that the district court pointed out that's the only place i side actually i woman said then what do we do with it but sincerely doesn't believe sincerely right yeah right i mean what do you get beyond that at some point don't we have to trust unless the record makes it absolutely clear that this is a  lie we have to trust the balance in the weighing that the trial judge does and in this case while there were certainly inconsistency the reality was there were some number of african americans remain there were a number of people with tattoos  or involved it was not consistent but it's like everything else in our jurisprudence it's not perfect so we're really dealing with the situation of where do we draw the line here you know what troubles me is the fact that we have what surely by the case law is a legitimate reason for excluding people from juries which is prior law enforcement experience because of the fear that they will be against what the law enforcement has done whether it's true  solid reason based on case law and the judge says that's ok we're done with our analysis is that correct i believe rice gives us some guidance you know that's the case that i can find that was similar to the circumstances that the court is contemplating what to do when you have multiple reasons and one of the reasons may or not be questionable again that's the at this point the court is you know taking the effort to separate those out however on this record what the court the trial court did the court of appeal did and the district court did because what the prosecutor did we took those together and together it makes sense of what ultimately happened in this court and the presumption here is it not the presumption is that the petitioner must show some level that the trial judge made an error and that the court of appeals unreasonably applied the facts right correct your honor and as bateson says and as other case softball and it says the ultimate burden is always with the opponent of the objection and in this particular case on this record it remains respon its position that he simply failed to we accept that this was her lips objective legitimate belief it just doesn't make any sense and that and that's an indicative of racial bias the court could do that but i think you know you're asking us to do it to make a different credibility determination you're look at the prosecutor's reason it was about recent arrest his brother forty years ago the trial judge called her on it and she didn't back down she acknowledged but i do want to answer your own your very first question i think judge smith ok fabricated reasons four dash eighty five and four eighty four dash eighty five yes ok and i think it's important that the the prosecutor never asked jurors one and two to respondents counsel mention that there were three jurors on the panel in fact there were four jurors that actually sat on the panel with negative one for second and the prosecutor didn't ask any questions about the more unfortunate contacts for juror one or two wow any questions at all she was perfectly fine and comfortable with th