that i was a story i was ago i couldn't talk at all so this is an improvement although i sound like a heavy smoker but just for the diversion the state of mississippi takes appeals from the district court channel and also had a codefendant roger gilligan also received the death penalty for these crimes during trial during jury selection the state exercised seven of its print seven of twelve print strikes against african americans and chamberlain lodged a challenge under batson to those strides the state proffered its nondiscriminatory reasons citing to your our questionnaires specifically with regard to two jars heard in she with as far as a district court's concerned the state cited to three questions from those questionnaires and limited its reason race neutral reasons to those three questions the defense then came back and attempted to rebut those but as the same supreme court found on two occasions only would cite reasons why those jurors in its opinion in defenses opinion would make good one well your honor i think it's it's a little bit fuzzy but definitely percent and under day one when it held that the state court failed to apply a clearly established federal law and the district court interpreted that clearly established a side wished federal law as being miller ale and that miller l requires state courts to conduct a comparative analysis when considering a batson challenge so it clearly pursued it under the comparing them skews made to jurors that were not and it substituted fike without any deference it substituted its opinion for that of the both state court opinions finding that two jurors thomas star opinion and state's position in this case doesn't come close to miller al it doesn't rise to the level of miller l hall you have here are three questions on a jury questionnaire that by the way was never presented the comparison was never made to the trial court it was not made on direct appeal it was for the first time may impose conviction on me and the court the missouri state supreme court looked at that comparison in p c r and said no you failed to carry your burden there is no purposeful discrimination here so how do you get around the two how do you get around miller l is all you have here in the three questions that point to discrimination but that's not all the evidence that's all that supports discrimination in my opinion miller oh you had jury shuffling you had disparate questioning you had a history on the part of the dish for attorney's office for discrimination i believe there was a handbook then showed them how to instructed them how to discriminate we have nothing of the sort here we have very limited and i think in significant proof if you look at the totality of the circumstances it not not just spoke us on these three questions and that's where i think the district court additionally erred it  consider or when it did consider all evidence it minimized that which did not support a finance discrimination what was the race neutral reasons he cited two or three questions in these lengthy drawer questionnaires and that was questions number thirty number thirty four and number thirty five when he was asked to give his reasons for striking those two jurors those three questions and i'll try to be brief the first one are you mentioned capable of standing up in court announcing your verdict as to the defendant being put to death they all free answered not sure why you hold the state to a greater burden of proof than the law requires because this is one this case is one in which that bill may be imposed they all three answered not sure the last one for example because this case involves the death penalty would you want to be one hundred percent certain even though  permit your retarded are just guilty if you have a doubt so long as the doubt is a is not a reasonable one and they all three answered yes to that offer i am me mr starr just mr minor and then the compared or mr cooper who attempting to interject alternative theories but the state was never permitted to give all the reasons that it might have chosen mr cooper over these two j justifications that were given at the actual trial i think what you can do if you don't want to could call it a justification or distill additional justification is say that mr cooper is not similar situated to mr minor and mr sturgis in that his do use on the death penalty were far more stronger than these two men who didn't and the state pointed this out it best read to the challenge and stand or fall on that region well again your honor if if i'm not being clear i think you can say that mr cooper the white you are is not similarly situated for the purposes of answer based on other answers and characteristics of that jar of mr cooper who obviously defense straught so they didn't want him on the air probably because of his or a trial result to just look at the story answers particularly in this case where this compare mr cooper was never pointed out by the fans at trial on direct appeal and they did however for the first time point to him in p c r and the state court looked at it specifically said we're going to look at these questionnaires and the responses and the state court still said the process if there's been a prime the facia showing of discrimination when the batson challenge is made and my understanding is that's not been contested that there's at least that prime if they should showing that then allows the state to give its reasons and then you go to the third these answers of just a few people i understand all that but you only get to that point someone makes a batson challenge there has to be a prime aphasia showing if the judges are finding a private picture showing a discrimination it's end of story go on pick the jury go to trial get your verdict no there's no bats an issue well here at trial the judge did express doubt as to why their home facial case had been made but the prosecution's sort of interjected its reasons without a clear rolling on that and at that point beyond that but you get to the comparison as i appreciate it at the third step and you have to look at how as the challenger has a claim it carried her burden of proving purposeful discrimination and that's when you look at all the are in this case it is again cooper was never raise nobody called attention to cooper and my suspicion is as as a trial goes in the fluid environment of selecting a jury you know the prosecutor is not standing there thinking about every juror on that responded to these three questions a lie i do believe had defense pointed to mr cooper at trial i think that the prosecutor could have then said well his about i think even the case of the baton case the supreme court decided last month the prosecutors are typically given a lot more reasons for excluding people in most of the cases i've seen and here it's a narrow set and so that's why you're in the situation where you know that you think is not painting as you put it a full picture here but wouldn't you agree that normally in these cases the prosecutor gives i don't like his job and i don't like he gave me a look yeah he wasn't paying attention to his head down and i don't like his views on the death penalty and he was wearing a hat and right in my experience that has been the case a prosecutor will come forward with lots of reasons but as to each of these jurors that were struck and all they were focused on two he did go through the questionnaires and that's how he responded to in support of his strikes was to point to answers on the questionnaires almost exclusively if i remember correctly certainly as to these two jurors which is looked which the district court found discrimination and he exclusively responded pointing to their answers to these questionnaires and i'd also like to point out since you mentioned the cases recently on bats and i think as i counted there were four in the last year that would be davis  advocating although i think most of that is true i think defendants and claimants who lodge back in challenges have years to pick apart the record and bring up any reason they can glean from the record try to make a back to challenge even though it wasn't presented at all even the next no state court had an opportunity to rule on it properly at least as argued now nevertheless i'm not advocating that we try to justify the prosecutor shites post hoc i'm suggesting that under a comparative analysis you can say it's permissible to say that mr cooper is not similarly situated to to that we would have al we were just the only other way is to do work you bring horse a head and make the prosecutor stick to and i'm not taking away from that at all that you know let's let's stick the prosecution with these reasons and let's look at these answers to the three questions but that gets not all the evidence wrong and that certainly doesn't mean that story drawers are identical for purposes of comparison and i think that i agree with you let me let me strike that let's say substantially similar and i think in this case when they were seeking the death penalty the fact that mr cooper's views were so much more pronounced and he wrote separately in his questionnaires to explain that he was in favor of the death penalty is is a substantial difference in this case but your point that maybe is years after the fact you're always go a similar answer on one question i mean that's right and that's why goes back to my point that in the typical situation that's much harder to do when the prosecutors given a number of reasons why they've struck so prohibit you know countless reasons first and there may very well be countless legitimate reasons right why you would fight somebody that's i'm saying that's i don't think it's going to cause the problems you're talking about if the ruling below because in most cases there are so many reasons given by the prosecutors it's not it's not hard on it is hard on hey b s to find someone who similarly situated on all those different lines here there's only it's hot it's one of the highest standards there is under the law i could see him about out of time but in my view this case is not all about the comparative analysis but it's more about deference and the absence of deference in this case and i think i review even if you want to get to the merits of the bateson claim if you review the merits of those claims through a deferential lands i think it's it's no contest i think the state prevails and i think the district court in affirmed i'm going to address many of the questions that you asked and this but let me say a couple of things first first one is that babson is not a technicality and what the u s supreme court has said over and over is that discrimination on the basis of race in the use of peremptory challenges impacts the integrity of the entire jurors judicial system and jury system and impacts the rights of juror of citizens to be service yours and so when we're talking about you know how this works we're not talking about some small issue that affects only one person or even only affects criminal defendants it affects the whole justice system juror so once the prosecutor and i know in other courts i practice in you know both sides might have strike list and sometimes there would be double strikes there wasn't that opportunity here because what happened was the prosecutor was told to tender twelve jurors so he had to express only say i accept this your i strike this or and that was what he that was what he did and then they sort of went back and forth until they finally had twelve jurors but that significant because he said it wasn't that he just didn't he didn't ask sturgis storm either a single question so he couldn't very well have based his decision to strike mr sturgis or mr minor on any personal encounter he had with and what he based it on was the reasons for the strikes and you're right every explanation he gave had to do with the reason this with questions on the questionnaire that was the thing he talked about i know in the media one of the things that is sometimes said about reasons that are that are discovered later for you or suggested later for why the prosecutor might have done this is that that reeks of afterthought i suggest to you that this this particular pattern kind of reeks of forethought you know like you know i you know i am i can't get inside the prosecutor's the prosecutor's mind but you know he was certainly ready with answers on the questionnaire as reasons to strike each african american juror and there's no showing that there was a lot of hesitation about it before we get to two examples it's a long questionnaire it's like seven or eight pages i think there are fifty some odd questions on it and they and they but the parties have the questionnaires questionnaires and what he said and he were like apparently were alive strictly on the questionnaires and making his strike because he didn't he didn't question any of those jurors and they and they and the court in miller l said that's significant you know if you think these issues are so important know we sort of wonder about that if you didn't ask them about it before we get to the sort of the mechanics of the of the the analysis i think it's important to notice that the reason that the district judge had a problem with what the mississippi supreme court did was because the way the mississippi supreme court expressed their opinion about these cases was at serious odds with the framework that's been laid out by this court comparative journalists on direct appeal that's correct but but but they did on post conviction and i'll get there in a minute but even not a direct appeal what the court said was that miss chamberlain had a burden to as the court put it rebut the reasons offered by the prosecutor and because she didn't do that the court said the state's reasons for the challenges were the only considerations before the jury selection not just the state's reasons for the challenges and that's what the mississippi supreme court said it did so it's not just a matter of you know of saying well the state the defense didn't bring up comparative journal since the mississippi supreme court was much narrower than that i mean they didn't even say looking at the whole voir dire it looks ok to us they said the only considerations before the trial judge were the reasons for the count but the district court said it was required to kentucky conduct a comparative analysis you know you agree with that well i would say that i mean i think i think you know as this court said in read i think you know when you look at miller alan snyder it sure sounds like because the court was so that the court in that case was so clear that the federal court is supposed to consider all the all the aspects and that includes comparative your analysis but frankly i'm not sure that i mean i think this  relief even if you don't think necessarily that the u s supreme court has said comparative your analysis is required because i think what that what is clear from the record is that the mississippi supreme court not only didn't conduct compared your analysis but specifically limited its review in a way that is not permitted by bats and miller l and snyder you know whether or not the comparative journalist this is is a is a specific requirement and what happen on post conviction you know i understand that you know that you know sort of the sense of unity it's not really fair to the mississippi supreme court that the defense didn't say you know can compare the the jurors well this is to be supreme court ha second chance because on post conviction an issue was raised about whether mr chamberlain this trial counsel were ineffective for not presenting a comparative your analysis and in making that contention the  post conviction counsel comment that when i was post conviction counsel so i know well presented that in the same comparative jury malices to the mississippi supreme court as is presented here and the mississippi supreme court got it wrong again the mississippi supreme court said a thorough review of the record in this case including the jury questionnaire is provided by chamberlain discloses that each of the african american jurors struck at least one response in his or her jury questionnaire that court again expressly contradicted that when it said we're not going to find that there's a problem with not presenting a comparative to your analysis because there were no identical jurors so the district judge is in a position where he has a state court ruling that clearly doesn't follow federal law in the way in allies to the the factual issue which is behind miller and i judge said in the first place i'm not going to give deference to this fact finding because it's clearly not the fact finding that's required by bit u s supreme court and then he went on to say however mr chamberlain still has to prove that the state court ruling was an unreasonable finding of fact based on the evidence in the record which is of course the de to stand and that's what he said he applied so i thought i mean i'm not sure you know we're in a position where you know where it where it makes a whole lot of differen be short of a crime if they should case that's not what happened here what happened here you are saying what happened here was that there were forty two people in the final of the minor thirty one percent of them were black and this and sixty nine percent of them were white the prosecutor struck sixty two percent of the black prospective jurors and seventeen percent of the white jurors so the prosecutor struck sixty two percent of the black prospective jurors that is to say eight out of thirty eight out of thirteen and seventeen percent of the white perspective jurors that is five out of twenty eight a you know that the court didn't actually you know i think the cases have have established that the problem that the state court on comparative jury analysis than many i think i think you kind of pointed out one reason you know why that's the case the record here is relatively is relatively thin and there certainly isn't a history of discriminate where there could be a history but there certainly is no evidence of a history of discrimination in this particular prosecutor's office but i really don't think i mean that was certainly an issue in mill around and in re but i really don't think that that was what the decision turned on what the the courts did in those cases is that it and the wig and judge reeves actually did it rather well here i mean rather clearly you know as the prosecutor is and i asked at the time he makes the striker at some point in this case it was at the time he made the strike you know why didn't you strike that or and since the issue in the in the case is really not you know wouldn't mr cooper have made a good job for the state or not but rather did the prosecutor discriminate against mr sturgis and mr minor on the basis of their strikes when he struck you know what the prosecutor says when you ask him why did you do that particularly as in this case when we have the benefit of his being asked the question you know right when he's doing it is entitle to a lot of weight in figuring out what's in the prosecutor's mind which is really the issue now judge really was didn't just say well these are the three questions these are the three answers and i'm going to stop he looked at a good bit of other evidence that compared mr cooper mr sturgis and mr miner he talked about the fact that they had a similar education levels he talked about the fact that one of them  mr minor so he really i mean he did far more than just say these are the three questions these are the three answers i'm going to find once now he actually considering the fact that the state is now telling us is so important that mr coo answered another question by saying his use on the death penalty were were more were stronger than those of mr sturgis and mr miner and what what judge reeve said and i think it's fair is you know if the state thought that was so important you know we wouldn't you know there's state should have said something about it and the fact that the state didn't it's also a circumstance to be considered you know so it's not it's not that it's not the case that the only circumstances that can be considered are the reasons that the prosecutor used it is that the prosecutor can't come up with other reasons later and i think that's what the state would like this court to to have to do and the in the  supreme court has just said pretty definitely that that's not proper  court to make the prosecutor allow the prosecutor to give his reasons in the absence of the death of the defense lawyer you know ultimately the u s supreme court said that that it was in fact ok to do that court the state also in its in its brief cited white versus wheeler which is another fairly recent u s supreme court case but it's also about which does in fact talk about twenty to fifty four d to deference the the current case that was cited in the twenty eight j letter by the state likewise is kind of apples and oranges the issue there was does the hideous court have to give deference to an unreasoned decision of the state court basically what the u s supreme court did was to disagree disagree with the court below that the u s state court reasoning was not a reason on the merits in this case it's clearly got to stay quite recent so to say court required to give devan deference under twenty two fifty forty two he did i think is factual findings based on all of the circumstances of the case which the mississippi supreme court told us it did not consider were correct factual farming is not required that's clear i can't even see that any other way and then he proceeded to review the merits of those with absolutely no difference and i think the supreme court's recent opinions which  distinguish i have i've been truthful with the court about what those holdings are and why they not may not all be directly applicable to bats in their own where they're spending issues and i think a confrontation the issue they are always  aside here based on the district's own words i'd also like to talk about the statistics and those side of imus carlisle she said there were thirty one forty four forty two people left in the finale from which the jury was chosen she said there were thirty one percent black sixty nine percent white and the resulting jury if i'm not mistaken and not so great at math but the resulting jury included two african americans because the defense struck too since the state tendered for african americans and the district struck to had those four african americans been sat on the jury that would have been representative of the overall racial makeup of the in our in other words roughly with four african americans jury had been roughly thirty to thirty three percent african americans which is what the was consistent with the makeup of the jury pool is what i'm t it also i think this call argued some language from and tried to attack the direct appeal of the mystery state supreme court in saying that chamberlain failed to offer any proof the state's reasons were pretextual therefore the only reasons a court can consider were those offered by the state and then the court went on to hold that chamberlain had failed to rebut the states for each race and if the reasons but that's not w the district court took issue with the district court flatly took issue saying that it in the state courts failed to conduct a comparative analysis period and therefore i'm not going to pay deference to those factual finding i'm sorry mr carlyle argued that this court is to presume that the district courts factual findings are correct but again i would point out that's not what the d p a says the a t p s specifically says that state court bit inconsistency after he says there was a d one violation he does say therefore at a deference is not warranted as to the factual findings that you've cited but then the very next paragraph he says chamberlain nonetheless mu carry her burden of proving purposeful discrimination and for purposes of our review she must demonstrate that the state courts findings were and reasonable in light of the evidence presented citing would woodward miller and is even more must be wrong to a clear based on the factual issue only of the position to titian of demonstrates both an incorrect factual determination which i don't think we have here clear and convincing evidence and that it compromises the overall objective reasonable list of the state court's decision and i don't think the district court well you know obviously i know deference to state court factual findings and i would say that  it looked at the questionnaires and it found that the shyamalan filled the curator burden that entitled to a presumption of correctness it's entitled to deference and i don't believe the judge reads afforded that raise comparative juror analysis but i mean that's what we're reviewing that's the rejection of the bateson claim the state hey because ruling was only an ineffective assistance claim that some of that premised on bats and that isn't that the direction data pealed that we're reviewing and  in my opinion it is and that's being the one with which the district court sort of took issue with but it also played back and forth and i believe also very sort of the middle ground and doesn't ever call it instance a direct appeal opinion or if it's p c or oppose it but i do believe the district court was talking about that direct appeal opinion primarily but again it's still failed to afford any of those findings deference and i think in today's climate and certainly from these last three or four opinions out of the u s supreme court that's not good enough i don't think we have a clear and convincing evidence here mr discrimination occurred and