is obviously very subjective it can mean different things to the person who observes it and the best demeanor was not explored by the prosecutor and miller able to talk a lot about how to reason that comes up later such as this one on significant about missed by them and the prosecutor and so he didn't explore that issue with my spine and he could have asked or i see you hesitating there are you having trouble understanding that you're not you're probably going that you would not be reaching this argument i think would be a different argument your honor because miller all too instructs us that failure to ask any questions is evidence or pretext and he didn't ask for anything in asking about the hesitation or the look or about her family challenge additionally the prosecutor insisted on several different points that his acceptance of mrs williams a black woman as the alternate juror was should be considered by the court and was evidence that he was not striking anybody based on race and he brought it up in henri man and he said it during the initial proceeding and it's an untrue statement he had no str every the supreme court recognized when they issued the decision and babson that there would be practical difficulties in the trial court recognizing implicit or invisible bias in honors i would argue that that's what occurred here in this prosecutor may not have been fully aware that he had some and puts it biased going on here and the trucker was unable to detect that and fail to consider all the ample evidence of perpetual reasons and that his reasons for striking this phantom especially the pause to look are not supported by the record or not corroborated by anybody else that was in that courtroom and his further behavior in not asking her any questions and his insistence on miss williams clause that it deprives them of a fair trial and an impartial jury and to reject the state's arguments because they are they don't they are without the benefit of melds who are snyder and for those reasons i ask you to  a new trial on the backs and violations and there's no further questions regarding that argument i'll move on to the public defender ok this case is somewhat unique  mr shaw december seventeenth two thousand and twelve at that time she reserved ruling on the motion for a public defender reimbursement order and there was a private attorney who i think had a claim on the bond money and he wasn't available so she continued it seeing this kind of stuff come up talking about this in every instance i can remember indeed i literally don't remember a time where the cases came up before us at the supreme court witness and so you're not going to think seek counsel objecting to the court not following the statute and not following due process and people be loved because she's no longer representing mr shaw this point and mr shaw was not given any new appeal in management so he doesn't have any where ness that he can appeal that he ordered we're putting in a strict what i think the requirements  the cases where the supreme court and other courts found issues about these feel orders not to be for for the ball that they should not have been been made following the filing of the notice of appeal you cannot have any requests to amend the notice of appeal there is a second notice of appeal filed in this case but without reference made the public defender assessment so really this is a different kind of case them you know what we're talking about when we're talking about or put a whole person on or the whole issue we're talking about on december eleventh the defendant was sentenced on the seven thousand the notice of appeal was filed on the nineteenth of twenty twelve and then on february seventh of twenty thirteen was hearing where clearly there were mistakes that were made actually imposing the public defender's feet but we're here actually on an appeal following remained and this is a whole different procedure all posture that is brought to the case when this there no question it was not included it when we argued this originally and champagne that was not an issue that was raised it's not in the original rates it was in champagne you retain jurisdiction of all remaining arguments with the exception of batson so again all remaining arguments cannot include this public defender fee a position that was not part of it and then you re mandated only on the batson issue and on the scope of that mandate is very strict and that is the only authority that the trial court has when it comes back down to them so all that they could do was address facts and that's the only authority that you gave to them clearly the imposition of a public defender fee is not something that is part and parcel of x so the trial court wasn't asked to address it but even had they been they could not say now we are back up and we are dealing with the bats an issue and we get to the first time this public defender requests this issue of an impropriety with the imposition of a public defender and respectfully it cannot be addressed now because there is still no jurisdiction it wasn't part of the original of it wasn't included in that that december twenty ninth of appeal the counsel just said covers this it doesn't the order how can an appeal filed in december cover notice of an appeal notice i would say if it was filed if it was part of it was taken care of prior to that notice of appeal being aisle i would say that there would have been a right to address it in the direct appeal when it came up but did it and i would also point out that december seventeenth was the day of the sentencing there were thirty days from that day that they could file their appeal then there is another thirty days that are allowed whereby motion you can ask to amend that appeal february seventh is ten days shy of that sixty day window there so defendant could have filed even though it wasn't entered until february seventh probably within the  i know that there are cases that say even liberally construed even liberally construed you cannot say that the notice of appeal included an order that had yet to be imposed with a separate question i understand your position o that case really that much different than the notice of appeal that we have here and they did say you can't or that and it can be rates but i don't think that we can separate out at this point the fact that i'm even accepting that on a direct appeal and you didn't raise it liberally construed you should have that you do have that right and it can be forfeited but you cannot separate that here it wasn't raised on the direct appeal it was a raised on appeal from the remains beyond the scope of the that it was not properly done yes sure i will move to argument one of the i'm not going to go over the facts at length i know that you're very familiar with them  because she had a prolonged hesitation and a facial expression that caused them concern was that the initial it's well there are two different times the first time after she was questioned they moved to excuse her office and at that time they based it upon i'm sorry and maybe it is me thank you yes they did they said that it was a prolonged hesitation and a perhaps the look was not mentioned until it went back on remain but i know the prolonged hesitation was their reason for it and big court the not the court the prosecutor recognized at the time that facial expressions hesitations demeanors are not things that show up and are reflected in the record but it doesn't change the fact that that was the reason for her excusal after considering the state's x explanation after considering the defendant's rebuttal information the trial court found that purposeful discrimination had not been shown now i know that today and in the briefs defendant disagrees with the value that should be placed on demeanor when using it for a race neutral explanation cindy miller l says that it is something that is fair to consider as evidence of pretexts in your race neutral response recognize the inherent difficulty and ability to abuse on the use of demeanor absolutely absolutely and they recognize that it's subjective and they recognize that sometimes prosecutors may not even be fully aware that what they're arguing  easily says and this is the reason i do not believe that it is contradictive of miller l two what easily says is while it may be evidence of pretexts it is not conclusive evidence of pretexts so it is something that can be considered but the suggestion that usefully is no longer a place of all it's simply wrong they do not war with each other what it says miller l two says you should and you may consider it easily says but it alone is not  said that a court is not required to reject a demeanor based race neutral explanation and beyond that they are not required to reject it even if the judge did not personally observe or personally recall when they were comparisons she had to be asked three times before she answered the question she was asked the first time the question was read and she did start to ask the question again and she seemed to have some confusion on it and the court said wait  repeated the question notably using word for word exactly the same so there wasn't any change in the language she hesitated still the courts still hesitated and the court minutes written ruling finds that out and then when she was asked the third time she eventually said yes the court's ruling says quote fine and hesitated in her initial response then began to pose a question at that time the court repeated the question again she hesitated until the court addressed her o'kane the court simply said simply asked that the question be repeated and promptly responded it's not the same characterization so there is a distinction between them so i guess what i'm wondering are you saying that situated terms similar you know circumstances and it seems a bit of a stretch to say well this one has it's a little bit longer or this one and yes twice and this one and yes three well i would say that the record doesn't show the other two tours of canaan either it actually has no i'm not saying i'm not suggesting i look at asking the question do you have to demonstrate that it's exactly the same snow and i believe it was perhaps the dissent in miller l two where justice thomas who was trying to achieve justice scalia possibly so did kind of lay out that kind of a thing and actually suggested in his dissent that when you make these comparisons it should be a tick tick tick and it had to was no hesitation when she was asked if she could sign a not guilty form and again went through what i just read in the record that it was a three time and found the prosecutor's race neutral explanation to be credible and did recall the hesitation the court did not recall the facial expression but again twenty ten u s supreme court case fail or the trial court does not have to personally recall or see it to find that it was still a genuine race neutral similarly when you do when you look at the other argument that was made about a failure to offer follow up questions and that that was an evidence of pretax and again defendant cites cases pick clearly say failing to offer follow up questions is evidence but what's interesting is that one of the cases that it cites actually recognizes that counter rationale for why you may not ask a juror follow up questions because you run the risk of tainting the entire but again there there is this recognition that there are times you do not want to ask those follow up questions because it may taint the jury and hear the defendant never raise below the issue in rebutting the state's race in a neutral explanation about the follow up question so there wasn't an opportunity to explain why perhaps again it would be a strategy choice if you didn't want it but that explanation isn't on the record because this was not even an issue that was raised it's something that's coming out now i just want to address a couple of things and i want to note that we were the state was not required to lay out its race neutral reasons until we actually got to the third stage because independents were five three it noted that and it suggested that suggested it stated that the state kept throwing out these race neutral reasons until one of them stuck i believe the language that is not accurate we originally said when we moved to excuse for cars that it was based on with jersey smith the relationship she had with the family know what the prosecutor was intending to say if anything with that inference as the defendant argues in reply brief can be made based on the statement that we will accept the other injure williams is conjecture and again i don't disagree with that no i believe she said i find the prosecutor credible and that you know her demeanor exhibit what he said but during the hearing she says i know i said her name a second time i don't believe there's any time where she asked the question three times at the course procedure was to ask the question and then same assignment at to prompt an answer and there's no indication and the record that there was a prolonged hesitation be there prior to her that question yes or no i think that personally what i would have done is to try to clarify that and after you've used about the way the question is asked it is kind of a complex question and i think it's a little bit misleading for the state are you that she didn't have any problems asking the next question about the not guilty verdict because it's the same question just and so it doesn't hold any weight or persuasiveness because it it wasn't like it was a new question it was the same question just