mississippi state supreme court for failing to conduct a comparative analysis and find in her favor on the batson claim judge reeves agreed with the petitioner in this case from the district court and held that the mississippi state keeping in mind it's important that chamberlain never offered any such comparative analysis in the trial court or to the state supreme court on direct appeal yet the district court took issue with those challenge i don't believe that is chamberlain or miss carlisle has cited to any case that requires as much to the extent she hands there is a split among the circuits of federal circuit courts as to whether or not miller  there is not you know there is not union unanimity among the circuit courts but secondly i would argue that if this court finds that a comparative analysis should have been conducted that the mississippi supreme court's opinions or direct appeal opinion in this case it's implicit findings show that it reviewed the totality of the evidence which included the transfer ups the of board and the jar questionnaires and the mississippi supreme court held on direct appeal which is the opinion with which the district court took issue that the  a proceed into the merits of the finding where the court did a very thorough comparison among two jurors that being a minor and sturgis the district court compared minor i just who were two black men struck by the prosecutor compared them to mr cooper who was a white juror who was accepted by the prosecution and later struck by the defense this comparison was never presented to the state court chamberlain did not point to mr cooper in the trial court chamberlain did not point to mr cooper on direct appeal she did however for the first time raise a comparison and the conviction for savings in front of his recent supreme court which i don't believe that opinion is an issue here however the court did look at that comparison looked at  circumstances anything different should be given to the ineffective assistance claim that had the and that's an issue imbedded in it i don't think that's the opinion that's not the opinion with which the district court to yes it's a state court factual finding but take a scenario where bats and i'm like this case bats and was not raised under rect appeal and it gets raised only the ineffective assistance claim on state a b s and then in federal court the petitioners trying to raise a straight up pure bats and claim you would say that was an exhausted right that bringing it through an ineffective assistance claim doesn't exhaust a straight up bets and claim i would certainly make that argument with an alternative meri honor and perhaps that was an omission on my part at the time when we took appeal from the district court's decision not in my opinion it's very clear that the district court only reviewed the direct appeal of opinion and i fel constrained by that on on appeal here well looking at the state hey b s if that's what we're going to do do you think it's it's permissible for the state court in conducting a comparative analysis to find any disparity in the questions court did that they specifically said they looked at the question years at trial the prosecutor was giving his race neutral raisins and referred exclusively to the questionnaires for reasons he struck certain jurors and in this case with respect to the two black two ours he referred to three questions on any fifty six question the juror questionnaire that was paul by the parties and submitted to the jurors perspective jurors prior to trial and selection so i would ask you if so the three questions here for the two struck black jurors were the identical answers because these are written questions it's not like the usual case words don't orally and there's there are slight variances they're exactly the same on these three questions from but from a juror who was accepted he's trying to figure out how you think this should apply what could a court hypothetically that let's say there was a question that said have you had any experience with family members going through the criminal justice system and all three of those people said yes and the white juror said or the black juror said yes and i thought my negative view of how my family member was treated in the criminal justice system could on appellate review or a b s review i don't have the page number but it's at head no eight and it says that the comparison among the jurors if it applies equally to white that if the race control reasons apply equally to white jurors who were accepted on as it did to the black jurors who were struc that is evidence tending to show pretexts and this is important i think which is to be considered at the third step and the third step is where the court i will aim should look at all the facts and  i do understand the importance of having attention to what the prosecutor has said however as justice you're saying in that case the comparative journals might be evidence  pretext but there are other things you look at you sure i don't think i think the district or erred in this regard also because the district court found primarily looking at the similarities among these three man and discounting what i think is a very significant difference among them which is their opinions on the death penalty and the district court stopped its analysis that said this is evidence of pretense and chamber wasn't titled to that the differences are important particularly their views on the death penalty when this is a capital murder case and i think as did both opinions in the mississippi state supreme court the differences among the man again are important in the court looked at everything the court had the questionnaires and the transcript so there's any differences in these questionnaires that can numb you know include fifty questions then there's no finding of discrimination i don't think you can paint with shelter which is such a broad brush however i would say how do you decide how do you decide you look at the totality of the evidence here and when you do that it's you can't deny the facts chamberlain did not point to the single white compared or in the trial court change really did not point to the single white compared or on direct appeal the prosecutor never had the opportunity to say this is why  beyond what the prosecutor said at the time doing a conference about jury selection but it does seem to me that there's at least that debate where one losing it justice thomas wants to go beyond what was actually said even to to explain why the why is actually why not seemly situated to some black is at least a pretty strong indication that we cannot do that what you're asking us to do to look at the questionnaires and look at anything that was not  them in the prosecutor's reasons don't add up in that direct comparison that's evidence that tends to show pretax real but absolutely but they dissent the majority enough votes for this to be the  majority the descendant heirs by focusing on reasons the prosecutor itself did not offer but did the oriel to instruct us to assess the prosecutors alleged race neutral this is a quote in light of all the that it takes issue with justice thomas by focusing on reasons the prosecution itself did not offer nag sept and this is a very hard standard they were asked to be talking about the right jurors and comparisons and whatever else but we're dealing with the law is handed down from on high and i'm trying to figure out what it means and you can add to that would judge clement said about other things that the supreme court was but i don't figure out how to have a desire in this case other than to facts i submit that the the opinion of the white joy or mr cooper on his death penalty as opinion on the death penalty is not a post talk a post trial justification for the strikes against are just a minor it is a fact in the record and it is a fact that the prosecution did not have a chance to bats and in jury selection it was a death penalty case and our court said there was no discrimination relying in part on one juror's statement that he was ambivalent about the death penalty one of the structures even  prosecutor didn't cite that in the supreme court says that was wrong for us to substitute this reason that he was also struck based on his ambivalence about the death penalty so how do you square that with saying you can look at other questions not just what justice time is it how do you square it with what they prosecution has no control over how these jurors are sat and how they come to him in an order so you know they could have been peppered all through the venire but there was a cluster of them albeit  pretty for at the forefront of any race that he went through all in all the prosecutor tendered five blocks to the defense who then struck three so the resulting jury had two people to watch on the jury that's not entirely the prosecution's fault and i have argued and would maintain had the defense not realize the defense doesn't have to but had the defense accepted every only thirty percent african american the prosecution tender hive african americans for the defendant to consider sitting on the jury the defense struck three of them so that least two people sitting on a fourteen person jury including the two alternates had let's just say four of them it was plausible that four of them could have sat on that fourteen person jury that would have been roughly thirty to thirty three percent african american on the jury what authority says that's the key consideration versus the disparity in you know actual strikes exercised between whites and blacks again i'm going to tread carefully here and i have the utmost respect but the panel opinion that was vacated earlier relied on percentages such as the makeup of the jury that there were two percent on our two african americans on there which i think is seventeen to nineteen percent reflection i believe that was stated in the panel opinion i'm not i don't have authority for that but miller also consider these statistics i for one am not advocating our standing here standing alone on statistics i think that the statistics here are not that impressive or aren't statistics the basis for the prima facia evidence under batson they are not the conclusive case by any means right yes sean the farthest we can get with statistics hears is prima facia case and miller l two did say when a prosecutor gives a reason for striking the black juror  a reviewing court most quote assess the plausibility of that reason in light of all evidence with a bearing on it close quote miller l at two fifty one hyphen two fifty two yes ma'am and i think this factors it considered in finding that discrimination had taken place and not just a comparative analysis and certainly not justice to statistics norell had the office history of discrimination jory shuffling disparate disparate questioning a variety of things that are not present here in the district court again soley only answer those three questions and i understand that they gave the exact same answers to those three questions but that's not in this case did the prosecution the prosecution had fourteen strikes available and exercised thirteen the defense exercised all fourteen what about your card or the black woman who was kept and she answered questions thirty four thirty and thirty five percent of the black crowes who were stricken except she answered question fifty three just like you are and she was kept at black woman so how do you explain the allegation of well if i were mid to give an explanation i would say it would be her opinion on the death penalty that breaks that tie it's up to the court i suppose if you want to consider that or not i don't get to make that judgment calls but it seems to me that the court needs to look at all of the evidence and stead of focusing on three questions it just doesn't yield fair or it doesn't yield the truth of what actually took place the when did the state first argue that question fifty three when did that first come up by the state you know during a problem i would i would assume i don't know for sure but i would assume when chamberlain first point with regard to their responses to these questions there was some bored are among these three men i don't think there was anything significant i don't think there was anything that i don't recall anything that was related directly to these three questions off the district or did the opposite of what miller l instructs in other words it only it refused to allow consideration of anything other than those three questions if that occurred what's the relief the court in our supplemental brief to reverse and render on this baton klein it seems to me if the district court gets another swipe at you know i think i think you could send it my notes say you want uninterrupted time for your first half is there are a no show you want uninterrupted time for your first portion is a comma that's right i don't think i'll use fifteen minutes but i would like to have a little head make for the court is that if you were a black prospective juror on her jury pool you were three and a half or more times likely to be stricken by the prosecutor than a white prospective juror i think that's the relevance to to stick and while statistics certainly are required to provide a prime aphasia case they can be also be considered in connection with whether there's sufficient evidence of pretext and i think in this case that strong evidence but it's certainly not all there is there seems to be a suggestion here that the prosecutor that this the process here is unfair to the state or the prosecutor because  miss miss miss bennett alleged that the prosecutor had no opportunity to mention mr cooper of course he had an opportunity to do that miller l had been decided a year before this case was tried he knew  comparisons happen he had the question questionnaire answers before the trial he had overnight before the strikes to consider them and so she had he wanted to he could certainly have said you know i'm striking these two prospective jurors because of their answers to these three questions i know mr cooper who i'm about to excite you i've been i've accepted answer them the same way but the fact is he's stronger on the death penalty could he have said that of course he could have but he did to i want to take a minute though before we before we get back into the facts to talk a little bit about why the mississippi supreme court's decisions both of them were contrary to clearly establish the first in the first case  the the assertion that the mississippi supreme court on direct appeal considered the whole record is just not supported by its opinion what it said was that mr chamberlain with respect to mr sturgis and mr minor bothered the state's reasons that's not a statement that we've looked at the whole more dire we know about everything what it said was because she hasn't rebutted the state's reasons the plausibility of those reasons is the only thing before us that's just not what babson says they're supposed to do and you know it looks like according to that formulation the only way she was going to win her back some claim and in that forum was to prove that mr sturgis and mr min didn't answer those questions that way well they did but the analysis can't stop there and that and that's why the the this first decision was contrary to clearly established federal law now the second time they did get another bite at the apple this isn't like miller around where they never got to hear about the state court answered the comparative jury analysis at all until it got federal court they were given the comparative jury analysis and they considered it in precisely a way as i think it cost a recognized that is contradicted by miller and they said we looked at the at the compare interest they're not identical so there's no disparate and miller l says jurors aren't the product of cookie cutters you can't have that so the mississippi supreme court's decisions were contrary to clearly established federal law and which which of course reduces the need to defer to their factual findings but the fact is that judge received this expressly said that he did not use the add a standard you know the state said doesn't feel to us like we did they don't agree with the way he did it but he said he cited the add to standard and the big need to find that a clearly unreasonable determination of the facts on the record before he made his determination so because of that i think this court is bound by  fifty two to consider the district judges factual findings as as valid unless they're clearly erroneous so what the district court said was the response at cooper there were at least two factors that made cooper a less desirable juror for the state his arrest record and his health problems what the court wouldn't do what the district court refused to do was to give controlling weight to the fact that mr cooper answered the other question about what he thought about the death penalty differently than sturgis and minor he certainly didn't ignore it but what he said was mr the prosecutor didn't say anything about that mill around tells me the prosecutor has to spam or fall on the reasons he gives and so he considered it but what what the state would have this court do was simply ignore the fact that the prosecutor didn't mention it and say well ok you know if we'd known about this we would have found that to be race neutral what miller l says is what the prosecutor says is really important and the reason it's really important is because what this is about is this prosecutor on this day in this time and it's about racial discrimination in jury selection which the court has said is so serious that one instance of it requires reversal and some the fact that that you know everybody else might think jean we think that perhaps of the prosecutor might have decided not to strike mr cooper because of this answer doesn't really tell us what the prosecutor did as well as what the prosecutor actually did and so i think when the court considered all of the evidence before at this record including the pattern of strikes that i talked about the fact that that the only black jurors accepted were at the end which miller l again said might be kind of kind of evidence of pretext i think it's clear that the district court's findings were as this supreme court said in andersen versus bessemer city they were plausible in light of the record the fact that there might be another permissibly belleview that this court members of this court has simply doesn't permit reverse and i've asked the court to to affirm that district and if i can grab my water i will don't quite know that story but it's just i'm never did find any explanation in any of the cases is there any analysis or stated explanation why in this particular issue  questions issues that have not been raised by love and specific reciprocally we require the district court or the other counsel to be well informed about the basis of your objection and order to respond to it i mean i would just say that it seems to be ignored but i would never s the knowledge when you can raise issues that have never been raised before well i actually think bill or else sort of sort of addresses that what babson said that's why miller i'll say is you know they set up this three step process and step three based so instructs that the trial court is to consider the whole record and i mean that that pretty clearly means not just what everybody said but the whole record i certainly can't tell you that i'm able to read the mind of the united states supreme court i've never felt that i was good at that i do think that what they were what they were saying in the in the in the in the  know when they're trial court hears the prosecutor say this is why i struck me as reviewers the trial judge needs to think about whether that applies to yours that works for us and that's part of considering the whole record and i would also was when chamberlain did offer the comparative juror analysis and the court says if there were a review of the record in this case including the jury questionnaires discloses that even to the african american jurors truck had at least one response in his or her question questionnaire the different differentiated him or her from the white jurors who were accepted by the state and that is not a requirement of identical ality that is saying least one question that differentiates which seems to me very difficult some mantic plea to distinguish from the court saying not bring court u s supreme courts and not similarly situated and then the court says therefore we are unable to find disparate treatment of the of the structure or zz and because we find no disparate treatment and no evidence of pretext we cannot say that counsel was  questions the panel majority here the panel majority expressly said we are not going to rule on whether the mississippi courts were in error on the legal questions we think we need a way i had a follow up question about the language in the direct appeal i thought you were dismissing it because you said well it decided that the mississippi court decided that the defense didn't meet its burden and that's all it said but the next sentence says considering the totality of the evidence the trial court's ruling on chamberlain's batson challenge was neither clearly erroneous nor against the overwhelming of evidence and you know the court has done a more robust analysis then is often done in these cases but are you faulting them for doing a robust analysis because don't we look at the at the key sentence that says considering the totality of the evidence the trial court challenge was neither clearly erroneous nor against the overwhelming weight and why how can we just disregard that well i think we can disregard because just before they the district court mistakenly did was took the stand or fall language that is explicitly texturally tied to the reason actually given for the stricken juror and took it to an entirely different context and said when we allow a defendant to raise something that the defendant didn't raise now the government can't give any reason first time reason so to me that's an asymmetry that would reward defendants to specifically not raise a comparative juror analysis when no one denies the government at that point absolutely would go to all the questions and says well if you don't bring it up in a timely point then later on the government won't be allowed to the district will do just what he did here thirty again the point here is what did this prosecutor do and there's only one time we can find that out and that's in turn so the prospects why the prosecutor hands i grant you a pretty heavy burden yet the burden of presenting all of his or fall concern to mean it stops every time and says by the way cooper answered those questions similarly and i really need to now talk about everything else that did or didn't happen i don't see any court having read miller l to require that well i kind of think miller all right at that way that is but miller l in footnote fifteen the majority says even the state is offering new evidence and therefore they've waived arguably and will consider that and by the time souter gets to section t b he says i'll even consider disparate questioning miller l does exactly what snyder does which says let's look at everything in minute detail and then the judge has to make the very hard decision of this prosecutor you're being dishonest or not but what miller alan snyder never do is say government we're going to decide if you're dishonest and we'll never even let you give our first reason as to why you're not you're stuck with the reason you gave for striking the the the the juror but of course you get a chance to give  first reason for why other jurors were acceptable to you well i guess what when i first i think i think what the district court in the district court did say that i mean i read the way the district court said it to mean the only only reasons the prosecutor gave at only the reasons the prosecutor gave a trial are the ones that we can consider we can't consider the prosecutor gave other reasons we can't consider other reasons as i just interrupt you keep saying that but you aren't finishing the sentence miller all used which is the reason for the stricken juror i agree the judge government can't change a reason given but miller l doesn't say the government can't give a first reason that you agree it would have given question whether it's an acceptable answer none i'm not sure that's happening so if you responded as best you can to judge who has his question about snyder and the other parts that were in if you complete what snyder and miller l tell us is that the issue of jury discrimination in in racial discrimination in jury selection is unusual because it focuses on the decisions of a particular live again and important enough that even a reviewing court in that interview in a court can review facts that were never placed before it anywhere else and i think miller really is just one hundred percent on top of that so i mean essentially in this case actually you know the mill around snyder both the whole the you know the comparisons were never presented in state court at all and so if the government if you know if the state there were saying you know hey we should be able to give our answers to whether or not the comparisons were right with the same weight as our original answers i think what we'll or else says is that's not true so what defending about's and challenge that he has to explain his rationale for keeping white jurors i don't that's never been the law and i don't see how that could possibly work is that your position there's certainly no no case it says quote the prosecutor has to explain the the reasons for keeping comparable white jurors i think what i've actually heard prosecutors do it but i think what what  taught the prosecutor is if i am excluding black jurors for reasons which apply identically to white jurors i ought to think about adding to my explanation i'm excluding the black jurors to explain them not because otherwise we're going to be possible way down the line for somebody to take a look at that so i don't think it's so hard to do if this prosecutor had sat down and made a little chart about how everybody responded to these three questions it would have been obvious to him that cooper sturgis and mine and when the saying what about comparing the comparative or what about cooper being similar to a black juror who was accepted what do we do with that well again that's not something that the prosecutor's a guess ok but then doesn't that vitiate the notion of this being a fair compared or if that other answer that wasn't mentioned is what makes the black juror and the wider who are accepted different how can you say that's a wow that's pretextual that's racial that's post talk because that's being applied to race neutrally well i guess i guess the problem i have with issue is you can't bring up the stock you can't add and well he didn't look me in the eye and i didn't say that to the district court but that's an additional reason isn't that very different then having to anticipate and rebut things arguments that have never been made about other people i guess i don't think so i mean i think i think it's kind of the same thing i mean if they if the court what happened was the federal courts say well you know  also you know that reeks of that so isn't the so the case law clearly says you can't come up with a new reason for the strike that's right if we were to say but you can come up for when the comparison is done you can come up with a new reason for keeping the white your isn't that just the flip side of the coin here for example the state saying look at fifty three and cooper said strongly favor the death penalty whereas one of the black jurors said no opinion on that so you can say well the black juror wasn't enthusiastic about the death penalty because that be a new reason he was struck but you can say the white juror was strongly enthusiastic about i mean what's going to be what how are you ever going to be able to  show what's going to remain of the stand or fall rule if you can just flip it into a reason for keeping any disparity a reason for keeping the white sure i think that's right i mean i think that's that that's exactly the problem that the the  a of miller had no is that the prosecutor must stand or fall on his reasons and as i say the reason for that i mean that's not just a matter of you know we want to be mean it's a matter of who we are trying that unlike all other title seven law on which it is based unlike all other discrimination laws i'm aware of because it all goes back to title seven in the shifting burdens of proof you are either conflating prong two and prong three batson or else you are putting totally disparate burdens on each side when the court has repeatedly said that the burden remains with the object or the defendant in this case now take foster versus chatman decided by the u s supreme court in two thousand and sixteen that case overturned a death penalty that was issued about one year or maybe just a few months after batson came down and in foster the supreme court looked at newly discovered twenty five year old prosecution records to fortify the conclusion that the prosecutor discriminated in jury selection and those were newly discovered so you're saying it's ok for the for the the the defense to bring up stuff twenty five years after the fact in order to explain the prosecutor's malign motive and it was malign motive but it's not ok for the prosecutor to say not only did they answer these three questions about the death penalty it quickly but they had a real different answer do you strongly favor the defense they can't even think bring him something that is evidence of the notations of the prosecutors specifically saying striking the blacks it said it's unlike any other case to be found in the supreme court's going to record and found prosecutors apparently hadn't heard of shredding machines shred the smoking gun it was the evidence in their own handwriting so it's an atypical case in the sense of there's the notes so it's probably risk question on this record in treating this poor guy or it doesn't look like the prosecutor ever got a burden that the burden ever shifted to the prosecutor does that matter if you've never heard never shifted to the prosecutor because that to the trial judge didn't even find the prime crime a face a case was made and then to keep does as an alternative and says it probably doesn't matter i'm going to go through this what if the bird never ever shifted did he still have this really large burden that you talk about and how do you what do you do with that i guess what i do with that is i think what what the united states supreme court has said is if the prosecutor is required but the fact is you know in this case as i think i started with a black prospective juror was a half times more like i just asked you a quick question on your you were saying when a prosecutor is going to strike anybody's black they better have somebody who's white that they're also striking isn't this essentially suggesting you make a chart of everybody's race and that needs to be predominant in your mind which is sort of the opposite of what batson is really supposed to be achieving which is race neutral determinations of peremptory challenges is now you're saying everybody better focus on this and everybody better have a white person they strike for the same reasons a black person or you're going to have a problem and isn't that not consistent with batson i mean that's your argument and maybe i'm misunderstanding your argument that's what she said well i mean i guess i think i'm obviously ideally the prosecutor wouldn't think about race at all and that's what we're hoping you know i don't think that's that at this point it's the situation we're living in and so what that means is the prosecutor and i've been one by the way has to consider that there throughout her briefs to this court and throughout the argument today she repeatedly places the burden on the trial court or the prosecution to come forth and compare stricken jurors with those that were  and as several of the judges here today have pointed out miller l does not require more any court since norell requires the prosecution to explain the drawers cat it is clearly the objectors to go forward with proof of discrimination and that didn't happen here the standard of this court is well aware is if reasonable minds could differ than h relief is not warranted and i think this argument today is proof that reasonable lines can differ and i think that the lower court decisions compared with the district court decision in this case again i proof that reasonable minds can differ in this case and when that is the circumstance when that is a fact hey vs relief is not warranted and the district court erred in that regard i have a question about the question fifty three what you want to focus on cooper said he strongly favor the death penalty sturges one of the struck jurors said he generally favored it's less than strongly but still favored it if we were are to look given focus on that question is that difference of degree between strongly and generally even though they both favored it anough to take them outside of being substantially similar even though the three other death penalty questions they had the exact same answers i think the answer is yes i think if we were discussing something other than some other distinction that the death penalty then you know they they took different newspapers that's clearly in significant but their views on the death penalty here specifically cooper because not only did he say i strongly favor the death penalty he wrote in separately where there was no space to do that on a questionnaire he wrote in separately for rape murder kidnapping you know whatever so he's merely a juror that apart any prosecutor would want on the jury and you've got i'm not sure which one maybe it was starters who says well i generally favorite you know to me that's a significant distinction and i would be in fact such a distinction that the defense struck mr cooper later probably because of his views on the death penalty and my final point up leave as i just would like the court to consider how if the district court's opinion stands of the pam opinion majority opinion was correct how our trial courts and how a prosecutor supply that going forward and i think it would do exactly what we said here today i think it would place the burden on the prosecutor and we place the burden on the trial courts and the appellate courts to compare all of this information and sift through the jury questionnaires when that's plainly not the case that's not what backs and stands for that's not what miller l stands for all of these cases you're persuasive if we wrestle through and find that the district court did commit d one legal error and or didn't give court will side with i think the fourth and sixth circuit have expressed lee place an affirmative duty on trial course to conduct comparative analysis there's a split and i do believe that the fourth and sixth circuits are in the minority of that split i think the eleventh and the nine are on the opposite side the say there is no such a permanent duty so in this instance we would ask that the court reversed the district