good morning your honor is and may please the court my attorney for the appellant and i have asked to reserve five minutes on rebuttal briefly this is an employment discrimination case where my client alleged st amendment retaliation mr landwehr was replaced as the public works director for the city of gerald at the meeting immediately following a municipal election by the mayor into alterman mr landwe supported his brother's candidacy for mayor and mr way mayor who was the successful candidate for mayor was heard at the polls that day by another candidate saying that mr landwe support for his brother would be reason enough to get rid of him and that because of a mailing that was attributed to my client brad land where being distributed during the campaign that was also reason enough to get rid of him that's the background of the case but the two real issues that we've raised in this case is one is a batson challenge and the other one is an issue about exclusion of of evidence with respect to the bad and challenge during more dire standard to be applied here in terms of analyzing the batson challenge but a bad sense challenge is analyzed by seeing whether there's a prime facie case that the strike was motivated by race and then the party that made the strike is required to provide the neutral reasons for the strike and then the court is required to take into account all of the evidence to determine whether or not the strike was motivated by st purposeful discrimination what's our standard snyder case what the court the supreme court said is that the court has to look at all of the circumstances to bear on the issue of racial and animosity and that if the actual planation  given is itself fun convincing that can be grounds enough for this court to find that there was a bad scene error and what's the evidence of racial landmines in this particular  for the prosecution and this juror is saying things that would generally the person that's on that side of the case keep that sure because they're saying things that make it sound like they would be favorable to the case yeah but miller that was a clerk that term and that was that was an entirely different case there was a history as i recall of racial discrimination in the prosecutor's office and there is that we don't have anything like that here and i don't disagree with the judge but you know you can you can gather that kind of evidence when you've got a prosecutor's office and you can see a pattern in practice because there repeatedly taking circuit certain actions before court went when you're involved with civil litigants like us and the supreme court has made it clear that bats in applies equally to civil cases criminal cases that part of the analysis is almost always to be virtually impossible to make and so i think then you have to look at whether the articulated reasons for the challenge you know it's the same thing that we're doing in the underlying discrimination case are are the articulated reasons which are always going to be race neutral really nothing more than pretext to this to to disguise illegal discrimination against an african american your seems to me that our and i'm not i don't see that as an equivocal record of the store or attitude toward the case and i want to be clear judge my my argument would be and i may be agreeing with you that right when you asked so many repeatedly if they can do something and then they say yes that that does not show equivocation and then when you asked that last time in their kind of frustrated and they basically say well i'll try or if you decide i'll do my  to trial the defendants gave four reasons for striking this your ag actually i would argue that one of the reasons was was suggested by the court in the defendant's jumped on that reason they really gave three and then kind of joined into this other reason that was offered by the court but one of the reasons they gave was that they were concerned about him having had a negative experience is the defendant and there was a cock asian female she didn't she she had said that she had a she or her experience was and totally satisfactory solution i mean she used different words but she also made it clear that she had not been totally satisfied by the outcome being a plaintiff in a civil case and there was no strike of the white cure when she was dissatisfied with the outcome of the case and actually mr williams had said he was dissatisfied with the outcome of the case he said he was dissatisfied with the way it was handled i'm assuming that that might relate to his attorney you know again if you know a lawyer listening to those words  you've got a defendant who is somewhat dissatisfied with how his case was handled you could you could make the conclusion that he's going to be defense friendly in that case and keep him another issue that we raise in the in the in the briefs that's also addressed by the supreme court is this whole issue of if they were so concerned about whether mr williams could be fair and impartial or whether he equivocated why didn't they ask follow up questions which they were certainly free to do and they didn't do any of that and so the follow up questions aren't asked because i think it shows evidence that the decision really been made that we're basing this decision on stereotypes not on what mr williams said that would would qualify me let me challenge you a little bit because you know that all of the all of the reasons given at least most of them strike consistent theme which is that this germy be more unpredictable than most because he comes in with with personal experiences with the legal system is not he says he's actually tried but he's not sure that he can be impartial and you know i'm just i'm just sort of throwing sort of what i'm thinking that they might have been might have been thinking about out there which is we've got a good case or we think we got a good case and what we don't want is an unpredictable tour and this tour might just be too unpredictable for us isn't that a legitimate nondiscriminatory reason that is supported by what happened here i would say no not again because of the record and rights to two of the reasons they give is that he's a wild card in that they think that he's that they have a difficulty predicting his view on the case but this is a juror who already said i'm an employer you know i i do this i know what it's like to be an employer i know what it's like to have to hire and fire  people and as an employer i believe employers should be able to fire somebody for any reason even in a legal reason so i don't think his views on the case are unpredictable i think they're somewhat predictably defense friendly which again is evidence that would support a finding that this was intentional discrimination to start a curiosity why if he so if you view him as so pro defendant why not why did the plaintiff strike him if you really want to know the answer judge i well we had a heated debate about this i had co counsel in my my client was there we had a heated debate about this in our room and luckily i was right because i was the one based on my experience i kept telling my my co counsel and my client we don't have to strike this guy that the defendants are because he's african american we don't have to do it and they kept arguing with me and saying he is too much of a danger for us to have on the jury for us not to strike him i mean they they were they you know if i had been wrong about that i probably would have had to surrender my license that day because it was such a huge ask your question and that is why were you are you so sure we're going to do that only because he was african american judge i mean he was the only african american on the panel and you know that that was helena's correctly knowledge is that there has to be clear in the decision the the problem with this is the trial court is essentially evaluating the people who are making the strike and it's important to recognize that in the context of striking jurors the only one word not to we're talking about is not juror number seven there are lots of them out there in the course of doing that my experience has always been is set there and you pick at them and you look and you decide how to exercise a group of strikes individually and in this particular case the question we had is we're not exactly sure how this guy is going to deal with deciding the case not what his leanings were not what his predispositions were we weren't sure how he was going to take the instructions and apply them to the evidence and the point i think is very well made and my partner and i talked about it during trial i bet you never sure about what a jury's going to do right never so so why is this person that particular while ages struck us as a concern the main reason is we had race neutral reasons for those concerns it had nothing to do with him being african american and again he probably if he were the if if if it were between well let's put it this way he probably wasn't the st one that we chose to strike there were others that we will more concerned about that's why they're peremptory challenges you don't need to have a reason you simply can't do it for a a racially motivated reason and the way that the district court did it is the way that the case law lays out that it's supposed to be done and that is we have a chance to explain ourselves and the district court without having witnesses in cross examination and all the rest of that is essentially a fact finding by the district court of what the attorney articulate says a reason and based on all the factors that a district court considers when evaluating anybody that's talking in front of them they concluded that the district court judge ross conclude that we had in a race neutral reason for striking in the age when we did the routing that the transcript of the proceedings i did it seems to me that there's this particular gentleman that s so ok yeah no not no doubt but again he'd had a bad experience it with a case that he'd had before notwithstanding the fact that he did indicate that he felt that an employer  indeed discharge anybody for any reason they wanted if i were convinced that that was exactly what his mindset was what course we probably wouldn't have stricken him but he had a bad experience with the judicial system before with the case some aspect of it and we don't know how that a problem with rivers but a geisha express of the satisfaction you are correct i can't remember that your honor i'm assuming that it's in the record of the court wouldn't have asked me that i don't recall that juror and take it i just remember that it was my concern with respect to this one and you know again you just don't know how some people leave those things and we're watching of or die or we have an observation of what's going on in the room in an observation of people as they're being asked and they're being often with any credibility finding a district court is required to make a determination based on a lot of things that the district court sees that don't appear in the record which is precisely the reason for the clearly erroneous standard in cars  but a chance to observe the manner of birds for and there is a case st and there is a case that we cited in our brief that says exactly that these are credibility determinations that are made by the trial court in the moment  of the time that is going on in the trial and i obviously we didn't give the trial court the indication that we were exercising this decision for a racially motivated reason and that again it is very much like any other finding the fact i wasn't under oath at the time and my partner wasn't under oath at the time that we were there speaking to the trial court but he's making a decision about what we're saying he's making a decision based on the information provided by the prospective jurors he's got the ability to see these things that we don't have the ability to project or explain in this court and that's why the standard is so high for reversing on the basis of a batson challenge and why the standard is so high any fact finding that the trial court makes that supported by any evidence and record with respect to the exclusion of evidence that wasn't discussed during the palettes initial presentation here to the court but balance offered some evidence of both the misery statute section seventy nine point two four which governs the discharge of municipal employees in the survey th class cities and some ordinances that were adopted by the city of gerald the trial court correctly exercised its discretion in the standard of review for the exclusion of evidence is for clear and prejudicial a clear and prejudicial error on the part of the trial court and in this instance the exclusion of these particular pieces of information made the trial clean if we put copies of statutes and we put copies of borden says into the record we're not dealing with  procedural due process claim here but what you do have is the prospect of confusing the jury about whether or not the following or not following of any of these of any of these rules procedures ordinances or statutes has some bearing on the validity of the claim and in this case the statute section seventy nine dollars overrides any of the ordinances i would contend the ordinances were followed if not to the letter to the spirit and consistent with past practice of the city gerald in the discharge of strolling or just one other point and i don't know if it's in the record anywhere but mr lane where it was not african american this had nothing to do with affinity or anything like that our decision was purely because we felt uncomfortable having nothing to do with juror number seven is race the trial court i believe correctly accepted that in the decision of the trial court with respect to both points that have been briefed by the appellant mr land where in this case should bow should be overruled in the decision in judgment on the jury verdict of the trial court from think if we question is i had that same thought whether the plaintiffs race matters is that is that a relevant consideration i don't know the answer to that your honor but most of the the case law that has evolved in come before all of the courts in connection with bats and cases i think the bulk of them are criminal cases where historically african american jurors had been excluded from deliberation in criminal cases where an african americans were charged there are civil cases the same but i don't know that it is a judicial consideration that way as heavily as the fact that we're simply dealing with a trial court finding but the typical motive that the batson case and the line of bats and cases arises from is to exclude a member of the jury on grounds that they have potentially a racial affinity with the person who is a party to the case we don't have any of that thank you very much  to address briefly of a few points related to the batson issue judge in response to your question about if the plaintiff is weight does race matter and i don't i don't have the cite for this but we address this issue in moran vs city of st louis it was a case decided by the a circuit and the issue was when when race is such a central part of the case because it was a white police officer accused of beating up a african american challenge man or an african american man that was mentally challenged i'm sorry if i got those in reverse order and the concurring opinion was that you know in that kind of a charge case race should matter but the majority opinion was it none of none of that matters that what really matters is the juror being excluded because of his race so the issues that are surrounding the case don't matter it's it's it's whether the strike is being struggling and that's in the record and so if they're struggling about who to strike and not to strike why not use all three and then i also wanted to point out that the articulated reasons at trial so there were four are reduced to two on appeal because some of those reasons aren't supported by the record so i do think that well i do recognize that the trial court you know has some fact finding function here i think that when the reasons change over time that gives you a unique opportunity to look at whether those reasons are again pretends are pretext for illegal discrimination suit we can find it easier to recall which juror it was that was the similarly situated  address the the issue of the evidence very quickly we were required the defendants argued that they had a neutral reason not a retaliatory reason for this discharge which was this whole custom and practice of we always replace our our people when we have i don't lection which was was every year the evidence showed that that didn't really happen every year we wanted to present the documents in our brief we cite this you know the the plaintiff has the dick difficult burden of trying to convince a jury that the articulate reason wasn't the true reason we wanted this to show that that wasn't the true reason and i do think i do think it would have changed the result thank you your honor them to the court appreciate your briefing in arguments today case will be submitted and decided in due course