good morning for the record melody federal defender office on behalf of rodriguez laura and i ask you to speak up just a little bit yet act like you're in front of a class a junior high students and you do just fine before i began i do have a correction to my argument in reading it over and reading it over i noted that for some reason i had stated in my brief that mr rodrigue one where there those were the first series of motions that he filed requesting an opportunity to inspect the records requesting an opportunity to have an a demographic expert and to make the request prior to trial and then during trial that's correct actually the last discussion was immediately prior to jury selection and th i think we have to look at the eligible jurist but we also have to look at that was part of the struggle for mr rodriguez fluorite in gathering the materials and figuring out where he was supposed to go and noted as i looked again through the cases that both things were done but at some point it's clear to me that you have to look at eligible jurors district there are or may be because we don't have the numbers we don't know how many there are there may be truly there are people who are spanish speaking we know that who do not speak english people who there are several prisons in the area and i think that would be remiss to walk away from that part of the analysis i think you do have to look at that at some point with you but you have to start jurors because i'm saying they've been deprived of educational opportunities and yet there was a very large hispanic population are you saying to me you think they would only  well i i wouldn't say that you would you would draw the line at the educational level but it's clear to me obviously we would have to start with an individual's ability to eligible for community why you have to start with the community so much the way i am vision that your honor is that you have to start with the community then work down from there but ok i guess i don't understand what the working down is you would start with the community why what what i maybe i'm misunderstanding the court's question but what i'm thinking is that when the individuals come in ok as the population that the next step is going to be there's going to be some review that takes place within the court system to determine who may be eligible who may not and that's what i'm looking at as as at least one of the steps that will have to take place so perhaps i'm misunderstanding what the courts implication is from the question do you compare the jury wheel to the population at large or do you compare the jury wheel to the voter eligible population what's the what's the equation what's the proper in your view what's the proper equation i think you compare the jury wheel to the population at large and what's your best case on the point it is the supreme court case your honor for the exclusion of women and it was the sixth amendment violation and they can in that case they compared the wheel with the general population they compared the what the proper standard is to determine when there has been a systematic exclusion from the jury pool that is where the analysis in that yes you're on you're down to about two minutes did you want to save any for rebuttal i did i don't believe the district court would have excluded that information your honor we're not talking about the conclusion that the judge might ultimately comes to we're talking about what the judge considers correct isn't that the question in this case isn't the question in this case whether the defendant should have had an expert that he requested to help support his motion related to the composition of the jury pool and isn't one of the factors in determining that whether this would have been available to a paying client why i think the question in the standard is whether a reasonable attorney would retain  expansive client couldn't afford the it's services of that experts that i think think the question is whether a reasonable attorney looking at the record and what the potential record is would retain the services of a paid rodriguez laura attached to one or more of his motions or make reference to experts that have been retained in other cases in the eastern district in the fresno division yes he had some paying clients who could afford to pay for counsel had hired experts correct and submitted information about the democrats never graphic makeup of the jury pool in the fresno division right i'm not sure your honor where he obtained the documents from but it's not important for the purpose of my question counsel where he obtained them he did attach or did make reference to experts that had heart been hired by paying clients right i don't know whether the expert that had prepared an affidavit which turned up in this case had been retained or not what do you have some information to suggest they were volunteers that record was not developed a i ask you to assume the on the for the purpose of the question i'm going to ask you for the third time is assume that they were paying clients and that the experts were paid in retained and provided the information that considered correct and isn't that our inquiry here whether i would concede that the court reviewed everything in its record and i'm not sure i understand the court's question now there were past instances in which the eastern district has considered the declarations affidavits or testimony a paid experts on this issue that's correct whether the jury make up the jury selection process in the eastern district and specifically in the fashion of the vision satisfies constitutional muster right yes so i guess it i like the old saying sauce for the goose sauce for the gander if it was ok and they privately retained case why isn't it ok and in the case of someone who can't afford counsel and is asking the court to provide funds to court funds for the retention of an expert you're out of the district court looked at the ultimate result of the case which apparently that prior affidavit had been used in and that went to the ninth circuit and the ninth circuit looked at the entire process and found that there was no the fact in the jury selection procedures in place in the eastern district and specifically in the fresno division and the court as noted background and they were finding that for the approximate one year prior to mr rodriguez laura coming into court that about eighty percent of jurors were reporting their ethnic background  and that very closely correlates to the same percentage of jury eligible persons within the district and the division which are hispanic so there's really no apparent disparity there  hispanics or whichever minority as a percentage of the population as a whole but rather jury eligible persons because i think that's how did this case until several other cases now what  forty five i believe that the reasoning is that there are obviously a percentage of people who are not on the rolls for potential jury service given that they're not registered to vote and for that reason they they may not they may not be registered to vote and they may not be a united states citizen they also have to be conversant in english they can be in prison or on parole well i understand of the more narrow community of persons eligible to serve on the jury and i think that there have been determinations made that that's the best source of jurors in the jury selection and service act which congress can act on which has been uphe peers are in the jury pool well your honor if we truly used his his peers and we would have to look at people with his background such as a criminal record and he's not a united states citizen so i don't think you could ever have truly a jury of his peers because they're not qualified counsel rebuttal argument which if my memory serves me correctly at this point was not until very close to trial time it's not that big before trial time he didn't even have all the materials that he needed because when he received the report discussed  face showing on its own and it obviously didn't have the expertise either and the argument throughout i think from june to september every time we were in the court kind of became in  mind a circular kind of an argument you can't have the expert because you don't have the materials and you can't you can't make the argument because you don't have the materials and you don't have the expert  so the argument kind of took on a circular nature but i think the focus was that he didn't have he still didn't have the materials that he needed even when he finally got them and it's our position that he should have been able used just argued will be submitted for decision and will proceed to the