question presented by this court by this case is whether the washington supreme court made a finding that batson versus kentucky required a showing of racist intent by the prosecutors in position is that is exactly what they did and that we are not just weren't they just a roman eating about how bath and it's just not proved to be all that helpful and in for closing or preventing  opinion well we are to an extent i'll talk about majority but i also think it's important to talk about the dissent here and what they said and what the majority did not object to first at a at a broad level some of the descriptions that were made about the bats and decision first from the dissent batson as a great symbolic step sadly it remains primarily symbolic batson was doomed from the beginning justices appeared to be agreed on one point that batson was an ineffectual tool the majority said if the court because in batson the court said that that its decision and swing which required a systematic evidence of systematic purposeful dest discrimination was not working it put a crippling burden on the ability to address the equal protection and due process issues that were inherent in race discrimination understand your argument but i'll just tell you for whatever use it is for you i'm not personally going to give any way to language in the dissent ok i'll move on for that as i understand it is what  the majority opinion say that you think that you think supports your view that it was requiring racism because a majority is not required to respond to anything swing and then they went on to describe what in their view batson required and this is where they went wrong batson they said requires judges to accuse attorneys of deceit and racism in order to decision from a federal judge that we cite in our brief footnote one reply brief page three the valentine decision federal judge doing a twenty to fifty four review of a batson claim very similar circumstances of what's occurring in the trial court and in that case the trial court remarked that batson is always difficult because because it suggests that one attorney believes the other attorney is a racist and the judge then has to decide whether the attorney is a racist him have the same problem with that is with you're relying on him to send the really the only thing for us to look at the most important thing is what was the reasoning of the state supreme basis is a from the same calley opinion but the analysis in this valentine opinion it says the batson test is quite different it requires the courts to determine whether juror has been struck because of her race and has nothing whatsoever to do with whether a prosecutor harbors racist tendencies the trial court statements and i think this is critical even if an off hand i observation implies a reluctance to question the prosecutor's motives same cali decision the court spent an inordinate amount of time talking about the concepts of implied implicit unconscious and institutional racism the word racism is mentioned throughout the majority opinion if one reads the batson opinion the majority opinion never uses the term racism or racist the majority opinion insane calley does consistent with its view that in order to sustain a batsman challenge and its explanation of why forty cases before it had never sustained an appellate batson challenge that it required a judge to make a finding that the attorney was acting in a racist way not was simply purposeful discrimination and attorney and counsel i'm just as you this one way to read what the court was saying is to say that it was unhappy with the  the conscious discrimination requirement and it was pondering whether to impose relief when there was some sort of unconscious bias you honor i would respectfully suggest that unconscious bias in fact an implicit bias is inconsistent with bats and bats and requires purposeful discrimination and you can have a lawyer that has all the implicit unconscious biases in the world and if that lawyer exercises a challenge that i don't agree with you there's no batson basis for it with you i don't disagree with you on that but but it's hard to infer from the court's statements about that the court is saying there has to be racism but your honor the  but in the end when they get to the last section of their opinion they say you know if they say they're not going to make any changes to anyone that was not properly raised and i'm going to do anything they say we applied batson to this case and concluded that the trial court's finding that there was no purposeful discrimination was not clear air well the despite everything you say about what what they were discussing and all the various opinions in the end they knew they know about since and didn't they apply and you know they use the words purposeful discrimination but the key is what how are they interpreted purposeful discrimination they're using the word discrimination anonymously with the words of racism or racist intent and perhaps i can give a hypothetical i'm representing a police officer charged with an assault on another individual whether that individual be white black mexican american based on the research i've done in the literature based on my experiences with african americans with minority members and their experiences with with with police and the justice system i know that they're generally going to be more skeptical of police officer testimony this is not merely a stereotype or maybe i've been i've hired a jury consultant who said you know this is one factor that you should have only consider and your strikes and the judge asked me well did race play a part in your you know in this with these questions were never asked of these prosecutors here and the judge asked me did race play any part in your decision i would say yes well the judge says are you a racist i'm not a racist i'm making a logical race based determination and you ar understand where you are and i mean i when you read the opinion but in the end in the end it does look like they're aware of batson in their applying outside but let me ask you this that i don't argue with you because let's assume that they did apply bantz and as we understand it purposeful discrimination do you leave well that then your honor then i think we mean your whole argument turn on whether or not it was the the court's opinion was contrary to benson and therefore it's you get independent whether it's if it's under de one if it's contrary to or an unreasonable application well how about d two unreasonable determination of the facts because ultimately the determination of whether or not there was purposeful discrimination is a factual finding so here the court as i understand what the trial court was the concern about this this possible juror was offered by the prosecutor was that she may not last throughout the whole trial given what had happened yes well and the that's what the trial court found and said it was a nondiscriminatory reason or neutral reason and the washington supreme court said yeah we agree that's a perfect factual finding supported by the record let me and so on my question to you is if that's what we end up having to look at clear on or a view of the supreme court under the unreasonable determination of the facts standard that's a high standard i think on the facts of this case compared to the snyder case i believe we have established enough for the court to make that finding and snyder spring court was reviewing that batson challenge not undernet by a standard under d two but they were reviewing it under a clear error standard and yet they found that the challenge or the  challenge or the denial of a batson challenge to a single juror was enough to create a batson shuns justice alito writing for the majority of the court in that case focused on first of all focused on one issue  opinion he said we are limited as a reviewing court to what the trial court actually found or sustained as the the reason proffered by the by the prosecutor in our case we're limited to one point which is the prosecutor because the judge said he wasn't going to consider the demeanor of the witness he would consider only that this thing about possibly losing the juror respectfully suggest and i think one of the parts of the bateson test if you look at i think footnote twenty citing to a second circuit opinion that that the proffered reason i think this can be factored into has to be a legitimate reason counsel i'm sort of put your three minutes over your time and i thought you wanted to do some rebuttal and so although you're absolutely correct to be answering as prizes questions i think we have to bring this argument to a close  even though your time's up for planning purposes i'll give you one minute for a bubble thank you if you want to say something after the can give you an extra minute if you need to think your honor may please the court john sampson assistant attorney general for the respondent happily as your honors have recognized the state supreme court here after a lengthy discussion about the concerns with bats in a whether it truly resolved issues of discrimination in jury selection did in the end apply the baton rule to this case an excerpt director's record sixty seven judge justice wiggins in the lead opinion said quote instead we apply a batson to this case and conclude that the trial judge just finding that there was no purposeful discrimination was not clear air in a concurring opinion by justice stevens sheikh said it pages eighty two to eighty three of the excerpts of record quote first the rule announced in batson is now placing a constitutional women on the exercise of peremptory challenges based on a finding of person purposeful discrimination and justice madsen in the in the third concurring opinion also applied the bats in decision excerpt to record seventy seven and found no air the court discussed at length its concerns that bats and did not go far enough in curbing discrimination in jury selection and the supreme court since this case has established a rule that essentially  the striking of a juror of color if an objective observer could view race or at ethnicity as a factor in the use of the primary challenge in the court no longer required under state law a showing of purposeful discrimination but in this case is grounded on the washington yes you're right yes your honor and the established court general rule thirty seven which applies in both civil and criminal cases so the court was concerned with discrimination both both expressed discrimination and implicit biases and the court knew that that was a concern because even if somebody is not a racist or they may still have just by the fact of the way they are raised by what their experiences are in life they will have implicit biases that affect their decisions and the court was concerned that that it would carry over to jury selection so that's what they were discussing and why the supreme the washington supreme court in its decision was you know expressing its frustrations and concerns with bats and but in the end it applied datsuns purposeful discrimination standard and  the question now on davis review is whether under twenty two fifty four d two there was an unreasonable determination the facts by the trial court and the washington supreme court when they concluded that that the prosecutor statement an explanation the reason why he struck the juror he offered to but the trial court only went with one issue which was that the given the circumstances of jur number thirty four the loss of her friend the murder and whatnot and her concern you know some of some of the things she said that the prosecutor was concerned that she would not last throughout the trial right court accepted that and so did the washington supreme court just as a nondiscriminatory reason is that a reasonable determination the facts in light of the other issues that were brought out with her for example the whole business about questioning her was centered on the fact that she was concerned about the court the prosecutor noted that his concern stemmed from the race of the victim that she was her body was her friend it was an african american fellow and that kind of like generated the whole discussion they asked a ton of questions of her more far more than they asked of the other prospective jurors right yes sure they had alternate jurors they were hired they had retained the court had selected to alternate really reasonable determination of the facts in light of those others facts that were involved here yes your honor it was and the burden on the petitioner not not to quibble with words is not whether it's reasonable but whether it's unreasonable for the court to reach this issue and that is justice scalia pointed out in an argument that i had the question the we accept too strong a burden if we have to prove the state court decision is reasonable it's really wasn't unreasonable and that question is would no fair minded justice they find that the court can reach this conclusion and i would submit that in this particular cases those are concerns that there was was discussions of race in the first place  the end there was it was the prosecutor i think who raised it went by pointing to the race of the victim of her friend right yes your honor and actually what had happened was the prosecutor was asking another juror some questions and that juror commented how everyone on the panel was white and then juror thirty four pointed out well not everyone because she was african american so the fact that there was even a discussion on race is could be troubling  but if you look at the jurors actual words juror thirty four his words she said that her friend had just been murdered within two weeks and that it was very emotional for she started on excerpts her record to fifty six  talking about how she was wondering if she could go through this and she think she could be fair and listen but she doesn't know she had never been on american murder trial and had just lost a friend two weeks earlier and then the next day excerpt directed three twenty four she said she thought about it and she thinks she could be fair and that she actually had a duty to be on the jury but then the net very next page three twenty five she again repeats her concerns that she's just not sure that she could follow through yes your honor and the fact that it was a person does not want to participate is not alone and off but if she doesn't want to participate because her friend had just been murdered and she didn't want to have to review bloody crime scene or  autopsy photos because that could trigger stress in her the judge the trial judge in viewing her answers and viewing her demeanor recognize that that was a legitimate basis to exclude her  what does that really getting at i mean there were alternate juror there were two alternate jurors correct yes your honor i think the concern was not that she would stop this concern was that she wouldn't even make it to jury selection i mean to jury deliberation well i think there are two ways to read that one is photographs were really presented right your honor one would be that she would want to be excused before jury deliberations the other is that she would remain on the jury or not pay full attention to the evidence being presented go to deliberations and then not fully participate in deliberations because she had checked out that's not what the prosecutor said that's not what the prosecutor said but that's that's a reasonable interpretation of what the judge was saying and that's that that's a concern is that you may have a juror who simply as the as the prosecutor said she had closed her eyes and when asked the question in do you know any friends or family who are a victim of violent crime she did not respond now one reason volunteered interpretation is she didn't respond because you had already talked about it at length the other interpretation was she was not paying attention because this she had checked out but but again the question is would a fair could a fair minded jurist reach the decision that the state supreme court reached and i would say that it could there was another factor that i forgot to mention when i raised this question with you which was wasn't there another juror a mexican american was not race neutral but as the state supreme court recognized it is not it's only evidence it doesn't necessarily mean that it was discriminatory to excuse juror thirty four it's as justice wiggins in his opinion and i believe justice gonzalez in his opinion recognized that that fact is a piece of evidence the court consider but it doesn't necessarily mean that this was a discriminatory peremptory chose it's it's part of the totality of the circumstances that the court should consider in deciding whether there was some conscious standard require intentional discrimination or is it conscious discrimination your honor the supreme court hasn't really clarified exactly the parameters the i think that certainly intentional discrimination is included within it whether or not implicit discrimination i think that could also be included within it because if if you're making a good edge choice to strike a juror based on their race even if you're only doing it implicitly that would could fall under batson if but again the supreme court hasn't really fully defined that and so  to say that the state court decision here was an unreasonable optician a supreme court precedent when the supreme court itself is not determined exactly what purpose will discrimination entails i would say is not sufficient to cover the the burden posed by twenty to fifty fo the judges findings or lack of findings are important under snyder in this case the trial judge in denying the challenge for cause to journal thirty four rejected the claim that it was a basis for cause to excuse her because she might not make it to the end of the trial so we're left with is whether that is a reasonable  also the primary challenge in footnote twenty of bats and where they say to the second circuit the word legitimate is used as as as in one way to judge this it's very analogous to snyder where the prosecutor is saying i've got this young college student who may be in a hurry to get back to his classes and hope for a quick on first degree murder a lose the death penalty and that was the analysis and i would urge the court to look at snyder and i see a lot of time great thank you very much we appreciate the