and we will move on to our final case for today morning which is me against her shall mr casper questioning if you i think i think it's a huge problem to have a judge and in an instance like this especially where there is race and other nuanced other question all the witnesses to the opening and closing statements and everything else i do get around federal rule of civil procedure four hundred and seventy eight that specifically provides that judges can and oh i think the judge is allowed to ask questions i don't think they should be the only person asking and secondly in this case specifically in this case the th consecutive th amendment to the us constitution requires that the judge task you ask fair and reasonable questions to get at the issues of race in this case and that's it that's a a just i mean obviously the th amendment guarantees a right to trial by jury the th amendment has a due process clause to jump from bad to questioning i don't see that link and it's matter of fact as you well know probably practice in federal courts is much more inclined to show that judges invite possible questions from counsel of course as judge  here it's really more the state courts where the lawyers are themselves the questioners and judge conley gave some very good reasons for thinking that that he was actually adopting a process that was more protective of civil rights and i disagree with that especially respect not questions on race i mean that there's two questions asked that race that is insufficient i mean that's like saying that you raise your hand ask the question how many people just because one juror responded doesn't mean that they were there to see two separate jurors who responded you just said you can expect expect that a question like that the jurors are going to feel comfortable responding jersey didn't feel comfortable responding and they did it for  d one or two did out of thirty you're right home i supposed to guess is the lawyer who's intitled to make both peremptory challenges and challenges because what the other twenty eight are thinking on these closed and questions it's just inappropriate and and well if they don't respond you're assuming they are they have something and they're hiding it that that's not the way this works and you can assess body language you can watch them during the question you can look at their demeanor i mean there are a lot of other ways for the jurors who may not raise their hand that as an experienced trial lawyer lawyers know you watch those those other indications and then follow up on  race police and crime and i need open ended questions if you are nuanced enough to get around the sides of these of these questions such as the ten questions that i asked the judge to give here there's the old law that requires judges to ask specific questions that are submitted by lawyers you're absolutely right but it still has to be fair and reasonable and it's no different than me going in front of the jury to argue what's a negligence or not they were just because the jury determines what's fair and reasonable and you determine what's fair and reasonable and you know i took this case pro bono to argue this case and in and what if i can't get in front of a jury and make sure that i have a fair impartial jury on issues such as this why would i weight police officer of excessive force and motion one second question if you or someone you know ever been discriminated against because of race ethnic background gender or religion or sexual program you got a response  calm something somebody says well yes when i go to groceries you know when i go to high end clothing stores people tail me shirt absolutely what's wrong with the questions that i asked and ask and why does not a listen more there's nothing that says a court has to ask them and you said the court asked two questions about race the court had a very detailed question explaining that which is not one of the two you're identifying i don't believe explaining that the plaintiff was african american the defendant was a white police officer and spent some time talking about the problems that that has raised in history and then went on to ask if anybody was predisposed or would have a need to comfort or the inability to be fair given those factual circumstances that at that with quite a bit further than than some thought to your questioning that that was an explanation not a question that again until you can elicit responses from jurors comfortable you can listen to the evidence and decide it based on the evidence then that's fine but if not this would be the time to raise your hand that asks for a response that's how he ended that particular explanation as you call it put that my brief about the fact that you know why don't we take a little more time and do voir dire so that we're sure we're getting a fair we're getting a fair jury and if we're not doing that what it means is we're calling a turd justice system  question and i think that's the problem with this here this isn't an auto accident case this is not i mean you have bias and prejudice is all over them all over the map with this case with race with police with crime especially in today's internet media age this is not an auto accident case this is not a slip and fall case this is a case where a seasoned lawyer should be able to ask questions to get an unbiased and fair jury so that so that we get an unbiased   st relates to whether the district court abused its discretion in conducting gardere on issues of police race and crime the nd question is whether the district court abused its discretion and excluding other ac discretion to conduct for its air and this court reviews that conduct for an abuse of just here is the record shows the but the district court went well beyond what it was required some to you in showing under record how it enough but my of reaction to that is that was then this is now and the this is a topic very much i'm many people's minds very near experience and so i certainly agree with you that crafting the board year st of all the judge can decide i the judge of going to do this all decide which if yours proposed questions i'm for you loose maybe all combined them handle of different way there's a lot of discretion there are so so that's fine but i'm not true the judge conley over did it you know i think that what he did maybe for this type of case was a very sounded exercise of discretion and not do you know for backwards your hon or i believe that the reasoning a bad judge conley i exercised a was a very clearly reflect on the record to end his reasoning on the record as what i was suggesting went above and beyond you know he reviewed an considered  questions that were posed by mr early and tracks there were written submissions by both parties with respect to these questions he heard oral arguments at both pretrial conference oath and again add a side bar during trial and he indicated that he indeed would i ask questions on the topics of race and crime just not in the format requested by mr lee and mr lee's counsels to just today that he is entitled to some type of open ended questions on these issues and that is not the sufficient and here the district court properly exercised its discretion in excluding many of the questions that were posed by mr lee for example mr we want to questions on the issue of race such as what sorts of negative or derogatory comments about african american people have you heard over the years or if you were a parent of a young african american today what concerns would you have for him about how our society is likely to treat the district court conducted a very careful balance between inquiring into these issues of police tracing a crime so that both counsel could intelligently exercise their challenges but he also had to be onsite against officer partials rights and not inflaming the jury as the district court noted some of mr lee's questions would do or not cross fertilizing prejudiced by asking some of these open ended questions for example another proposed question is do you have an opinion about what is more important the law and order or preserving everyone's constitutional rights the questions that mr lee proposed would have invited the jury to rule in mr leask favor based on sympathy these questions suggest that african american men are over incarcerated that society treats african and poorly that police misconduct is an issue that must be addressed and so the district court took into account not only mr lee's concerns but don't fight against the right to offer partial has in conducting gardere and a fair manner in order to identify an impartial jury and that is exactly what was done to hear the record shows that the court was concerned with inflaming the jury with cross prejudice thing the jury but the district court ultimately agreed that these are areas that the courts should how many there was a one african american juror that was on the initial panel and she was not objected to by either party and ultimately served on the jury that decided lee's claim and it was she the only african american on th yes she was she was the only panelist that could have been selected for the jury that was african americans she was the only one in the in the plot the or the contract where there are thirty and nationally that came to have there were about thirty four with respect to the african american germans cone that was selected for the jury it's very important to note as the score already pointed out that she provided a very real rall account of the discrimination that she faced as an african american every day she gave an example about how she was subject to discriminatory surveillance when she goes into department store to shop and this is a college that was given in open court certainly underscores the need for other jurists to explore their potential implicit and explicit biases and notify the court if anything that would prohibit them from deciding this release claim impartially suggestion to probe into implicit bias and did so and we can tell that yes least alerts them to the fact that there is this thing called implicit bias i'm not sure the suit so much but he he puts it on the table absolutely your  and judge calmly noted that it's very difficult to extract information on implicit bias to know to this during the pretrial conference that he would attempt to do so but most of us who have implicit biases are not even aware that we do based on their implicit nature and we see that the panelist provided information in response to the questions by the district court the responses were more than sufficient to allow counsel to intelligently exercise their challenges their preempt forty seven of the federal rules requires that district courts have the discretion to allow counsel to ask questions but it is just the word may you know the easier way and that is exactly what the district court did here it invited counsel to ask any additional follow up questions and these issues at sidebar in my remaining time i'll turn briefly to the next issue which is the district court's exclusion of other accidents here which office or partial didn't i had any liability the district court properly exercised its discretion it provided a written opinion on this issue it did allow additional argument at the pretrial conference is it provided again its reasoning on the record not the pretrial conferences and and indicated that there was no percival purpose for this type of evidence under four dollars and four dollars b further it was overly prejudicial under rule four  and looking at lee's appeal on this issue today even if we could prove a permissible person of such evidence he does not show that the admission of such evidence would have changed the outcome of of trial which is nd excessive force claim brought against him this is exactly the type of evidence that rule for all fours and time in conclusion this court should deny mr lee's request for a new trial the district court properly exercised its discretion mr lee had the opportunity to select an impartial panel to present his case at trial and although the jury ultimately did not believe then his verdict should thank you thank you i would just say of course they think that that why dear was fair because every one of the biases in this instance was against my client he's black he's incarcerated been convicted of crimes and law enforcement and they have a law this chief justice hughes argued forty years ago could be far more injurious permitted to be thought that persons are taking a disqualifying prejudice were allowed to service jurors and that inquiry is designed it was a perfect disqualification in part no sure then individual jurors may have an interest in concealing his own bias or maybe unaware of it natural human pride would suggest a negative answer to whether there was a reason a juror could not be fair and impartial that's precisely what th cross examination type questions the judge connelly gave the potential jurors did and does and that's why lawyers are to be allowed to ask these questions and or he should be given right thank you very much thanks to both counsel the court will take this case under advisement and we will be in recess