and and one of them were struck that will still be fifty percent more than that that's correct and that's i think the court raises an important issue which is well we know that it's illegal to discriminate against even a single african american shore but we also know that striking i them were against african americans ours so so we then at the time of the challenge we know that who african americans had been challenged do we know how many non african americans had been challenged compared to their back the percentage in the jury pool we found that and although they were only sixteen percent of the jury pool the prosecution was using twenty nine percent of its challenges against african americans  can't reconstruct this from my own knowledge of the record at this point so there was a question you know these two women before they were from floyd challenged and you said something about a lack of question before work was any prospective juror or accept  there on several occasions and never been seated but i have observed that there's a general question sort of if this is true raise your hand if that's true racial hand and after that general questioning the lawyers are given an opportunity to question individually  and that was very important because the government was arguing that he had thrown the jacket over the fence in order to make sure he could keep it and then climb the fence and continue to run and that kind of like you know i ran through i just dropped it i was scared and said that i only ha because he's a very simple man he wasn't on the street you know but nonetheless he had one story he stuck to it he knew details about his story he said when he picked up the cd player to try it out because he never tried one before he didn't like that ton misunderstood the question you answered that he didn't he did drop a cd player he didn't but i think he was already hiding when he took it off it couldn't he couldn't just drop it he had to get it off himself and so far away  americans at the time of the other challenge the primaries exercised worked against african americans and five against none that's correct your honor and i'd like to point out that in the record the record reflects that  you can take that into consideration that is true but ultimately i think it's only fair to both parties to look at the entire range of numbers not just the ones that were private at the time and simply what the statistics warning here and i think that that means that the statistics at the end at the final four of your panel can be considered in this case their particular significance for a couple of different reasons first because when you look at the statistics at the end of now counsel has contrast to that with a number of percentage of minorities in the heat are in the veneer as a whole which is only sixteen percent and has pointed out that that number is greater but what i'd like to point out is that the percentage of minorities that were left on th jury at the end which was three or one quarter actually exceeds the number of african americans that were in the panel as a whole that were available to the prosecution to challenge so when you look at the final disposition of the jury panel you see that one once all of the four cars challenges were and were were completed and even that number is not entirely clear the number that we have pushed her is that there were five jurors  challenge into african american women which obviously would be one hundred percent and as this court has already observateur we don't have any statistics with respect to women in general versus men challenge so at this point i think it's inappropriate  at this time which i would also like to just make a brief comment about the motion supplement the record i'm not sure if this motion is our opposition has made it into the court's hands and push only the late opposition on considering what he claims to be the policy back in one thousand nine hundred sixty and is not at all relevant or considered either by the state court or the district court in this case with respect to a challenge that was made in one thousand nine hundred seventy the other point i'd like to make about well and we're arguing that it's not required under federal law either by mandate of the u s supreme court and so the point being that it would be inappropriate under the a t p a for this court to reverse gallop state court decision that i think that this can be broken down into two different issues first you have the jurors comment that the expense was in severe disrepair and it was cut important down to such an extent that in my opinion there really wasn't any what i think opposing counsel at college really objects to the jurors then conclusion that in his opinion there is really no difference between climbing over it or running through it because it is that opinion that tended to undermine the credibility contest that was set up between the defendant and the and the officers and with respect to that opinion i don't see that there's any difference then common knowledge then a juror brings say for  say you know i'm looking at the stipulation and there's the been falling down but part of it looked ok and there was a hole here and we don't know exactly where the hole was in my opinion maybe these two reputations were just two different misconduct it was never alleged that the juror intentionally withheld information that he knew about the crime scene that he knew from the time was born here that he was familiar with the crime scene and intentionally withheld that so any cases dealing was withheld deliberately or whether he understood the nature of the questions that were posed to him and whether that evidence say for example some actual bias on the part of this church and you certainly have cases in which juries intentionally withhold an interest that they have in the district court what i understand the argument to have been named was that essentially a juror brought in extra as it information it may have then obviously at some point the juror became aware that he knew something about this case and rather than  don't see that as being the controlling question here and that's certainly not the way it's been analyzed in the litigation to this point i don't know how answering your question i know that your question was posed mostly so you think it's all a question of whether  extraneous observations really turn the balance for this jury as to whether this defendant harbored an intent to steal or not and i don't think they did for several reasons first of all masters credibility even to the extent that it was that issue as to what the  other defendant doing jumping over the fence running through the fence i don't think had anything to do with the credit card ability with respect to whether the defendant was rooting through the car because those are two nations and certainly one can see that it might be easier to  to get behind in this garbage enclosure where he still retain property he didn't drop on the property as he was running he retained the cd player in the cd and he was hiding in the garbage enclosure where he was found by an officer and where he proceeded had again and my reading of the record which appears that artie's one ninety one one through one ninety three is that he jumped a fence to get out of the garbage area and then ran and attempted to jump yet another fence which we the one that was covered by the razor wire and i think it's that flight with the property and the record reflects that he had to add the compact disc player and the tape and the headphones and up until the time he was hiding in might get caught you're just as likely to drop it as to keep going the point here was that and i don't think there was a dispute about this the police were coming down this road very early in the morning many cars where no one else there making rather loud noise because