hearing testified that she struck juror seven to four three will focus on this morning because she worked with amnesty international and received mental health training the record clearly undermines both reasons and compels a finding that the reason was i'll start with the mysteries and which is undermined by the record in two key ways first the prosecutor said she kept the juror she kept she never kept a juror that worked with and if true the prosecutor would have struck this juror at the first possible opportunity to really say that have you for been a prosecutor or a defense counsel in trial court i've never done what you have a certain amount of challenges and you're always worried about who's better who's worse so you don't always just you can't always strike everyone you want to strike but that's true and you don't always do it in a certain order because you might be hoping your or your co counsel strikes that person and you don't have to waste a challenge so i think that comment sort of belies what happens trial court they don't just strike someone first because that doesn't hold water for me ok i would just note though that there were three rounds of peremptory strikes and the prosecutor waited until the second round to strike that juror but all i also know that this the fact that she volunteer with amnesty international which in a case involving fashion might make her overly sympathetic why isn't that a perfectly legitimate race neutral reason so that this jerk testified specifically that she worked with individuals who are victimized and she went on to describe the nature of her work but i think that at all points during why dear she described herself as a person that worked with victim advocates and she also noted  in response to one of the court's questions that if the defendant is indeed innocent that he should speak up and so i think the statements that the juror made during voir dire suggest that she was that she wasn't actually different but that she wasn't that she wasn't striking at that point so even on its face it looks like it's a neutral strike and the prosecutor then testified they are concerned about keeping anyone especially in the case where you have a confession at issue why isn't that a legitimate reason for the prosecutor to strike if you're so the jersey seven two four three injured eight zero five three were stricken i think within a couple strikes of each other and it was all during the second round of primary strikes so i think if you think about how quickly jury selection moves and how quickly the preemptory strikes move the fact that the defense attorney objected to the strike of juror seven to four three just a couple minutes so there was no reason for the prosecutor to put on the record the recent at that point you don't you only are required to do that when the judge finds that there's a prime of fish a case do you understand that right well i think the  case happened later right right well the proposition case happened after the defense objected to the strike of juror eight zero five three and the prosecutor noted are i'm sorry the defense counsel noted that the prosecutor struck both at that point both from the panel and i think the trial court appears to have misapplied the first step of bats and defense counsel need only have shown that there was an inference of discrimination the trial court obviously found that the strike of eight zero five three raised an inference of discrimination the fact that defense counsel objected to the fact that both black jurors the only black jurors from the panel were stricken the fact that the prosecutor had noted previously during th are with the facts of this case the underlying facts of the underlying facts i'm i'm not very very well there was a confession right and there were two defendants and either your client or the other client actually killed the person even though so but your client took responsibility for it in the confession all right so the confession was pretty important in terms of a stab in the culpability of your client and a confession is testified to by an officer or someone of the government can you understand why a prosecutor would be concerned about someone that had worked in organizations that ha suspicion of government atrocities and false confessions yes so now why is that not race neutral so i can understand that a prosecutor can can have a concern about that but we have to look at the prosecutor's  reasons in light of the fact that this is a reconstructed reason that this reason was given i believe was seven years after the trial had occurred when the prosecutor said she couldn't remember the actual reason for the strike and so we have to go to court the court actually held a hearing  yes did the court find her to be credible yes the court made a credibility finding that the prosecutor prosecutor basically testified this is an experienced trial lawyer and you know i can tell you from having done like sixty jury trials i there were certain type of jurors i didn't like in certain type of cases which had nothing to do with race she basically testified what would be the red flags for her of someone with that demographic and the court accepted it so who has the burden here to show that it was based on race it's our burden all right so i've just given you another scenario where the court could have gone so why why does your burden overcome that white what is sure evidence overcome that so i think that the prosecutor can say seven years after the trial this is why i struck the drawer but i but i think this point in time because it's a reconstruct a reason we have to be looking in the record for evidence that i just don't believe that and if the judge had not believed that then you'd be in a better position obviously right i believe there's clear error in the judge's finding obviously so no what what is the contra evidence that would undermine the court's finding with respect to credibility and a race neutral justification are our best reason with respect to the amnesty is that the amnesty international is not written on the notes and that is contrary to the prosecutor its own testimony that she writes down the reasons for her strikes on her nose particularly with respect to juries they would only question that the juror did testify that she volunteered for amnesty international no she she did testify that you want to talk about juror zero five three actually if your honour's would permit me to i'd like to talk about the mental health reason as well because the prosecutor spoke about two reasons for striking jurors seven seven two for three and one of those reasons was that she worked in mental health the prosecutor said that you know she she struck this juror because she received mental health training and the words mental health is on the notes  but at bath that no contains both reasons to credit the prosecutor's reason as well as reasons to find that the prosecutor strike was at least in part motivated very by race the no that i don't i don't understand how the notation including that she sat on a that she previously had sat on a jury that came to a verdict that her sister was in the military and and that she was a victim's advocate the fact that she wrote victim's advocate in it opposition that writing victim's advocate does not adequately remind the prosecutor in the context of jury selection that she meant to remind herself that this juror had worked for amnesty international do you want to save your remaining time yes thank you please the court good morning deputy attorney general michael keller for respondent the warden spats and case presents a step three question as to each of the prospective jurors that were challenged there has been a judicial finding of fact that the prosecutor's stated race neutral reason was genuine these factual findings are entitled to deference for eight zero five three that occurred in state court for seven two four three that occurred in the district court the burden of proof in the district court remained with petitioner and now on appeal they have to show that that finding of fact regarding the race neutral reason being genuine that that was clearly erroneous they can't do that it appears the prosecutor didn't remember reasons in the surely case this court talked about when a prosecutor this is the difference between speculation and a reconstructed recent and the reason can be reconstructed where even when the prosecutor doesn't have an independent recollection they testify regarding their general pro chin how that approach would have applied here we had really far more than what they have and surely we have not only a test the prosecutor testifying at the evidence you're hearing about her approach to selection of jurors who would serve on a good work with amnesty international saying and this is on excerpt page one eighty three i would be very uncomfortable keeping a journal like that on any trial but specifically a trial involving confession i would never do it so we have a very specific testimony that she wouldn't keep such a juror on and then it's buttressed by what happened in terms of that both the post it note the contemporaneous post and know where she highlighted what the jurors work as a victim advocate it didn't say amnesty international there but it focused on the work and the trial transcript and and the trial transcript is it really gives us great insight into what the prosecutor was thinking so far to seventy four three first of all there were not that the trial court gave very little time for jury selection and for asking of questions but when it came to seven two four three work the prosecutor spent a great deal of time trying to figure out how this might play and specifically the prosecutor asked seven two four three whether or not her work had included people who were victims of government agencies after the answer was yes the prosecutor continued and said have you dealt with people who claim to have given a false confession so that clearly shows this is exactly what the prostitutes thought five at the evidence you're hearing if she was worried that a juror who worked with an agency like amnesty international which would would be distrustful of the government and this case and this court in polk lee dickinson has previously upheld challenges against the juror for  having worked with that organization but it continues because the prosecutor asked more questions and says was this affect the way you would look at the police in this case and the prospective juror gives a somewhat equivocal answer saying i don't think so than the prosecutor this is on now turning from x or page to seventy five to seventy six and the final question is the prosecutor asks has any of your counseling or work you've done been associated with amnesty international and the prospective juror says it's of that nature and i've done work with people through that group yes the prosecutors and ask any more questions once she receives the amnesty international response as a quote court noted earlier in the case where there is a confession it's extremely important to not have jurors who are distrustful of government and that's one thing that they that was shared between zero five three and seven to four three was a potential that they would be distrustful of the government you have one who failed to report being the victim of an armed robbery and then you have seven to four three who's worked with an organization like amnesty that seems to overturn any  and so both of them were stricken with peremptory challenges and the defendant is caucasian the witness is rock asian there was no cross racial identifications or race was not an issue in the case right clearly that just because someone is not your race you can still bring about and challenge right that is correct right so it can't be like ok well i'm i'm caucasian and i can still challenge taking all that black jurors off right does it doesn't matter though that there is no race issue here and that they aren't the same race is that something that can even be considered on any level in these type of cases i think it's something as it's a factor that could be considered but in the end there the reason the district court was in the position of deciding credibility and and it considered the fact of the notation itself and it considered all the factors that were in front of it and it made that factual finding and an opposing counsel says that her best reason she said it all argument here was that that it didn't say amnesty on the notes but if you look at the notice seventy four three it actually highlights the fact of her work which is again consistent with what she said gives great insight into what the prosecutor was concerned about coupled with the note itself showing that she was concerned about this prospective jurors work you put that together and you have the very clear evidentiary hearing testimony and the district court naturally found that that was who and the dischord had an opportunity to valuate the credibility of this prosecutor when she testified the court made that credibility determination and found her to be genuine in her stated reasons one of the other issues that came up here is the prosecutor's conduct in a completely different case what is your view on whether that can affect the talent the circumstances yes so i think under williams other what the prosecutors done in selecting somebody else's jury isn't relevant having said that i think the and it's and when it does come in it's really a step one consideration typically that but the jury if anything tends to support what happened here in that case or in selecting jury first of all i know that there were two african americans that ultimately sat on that jury and it also was consistent there with the prosecutor saying that they that she sometimes gave notes and sometimes didn't there were if if you look at the twelve jurors that sat on that case there was one notation of a male white one notation of a male black and some that had no notations of race whatsoever so there's nothing in the idea of jury that would tend to show clear air and again the district court didn't accept our objection to the idea of and took it all into account so that was certainly considered by the district court in rendering its judgment and its factual finding regarding the prosecutor's stated reasons in this case the prosecutor challenged the grand total of two perspective jurors from petitioners of the new york who happen to be african american she did so out of a genuine fear that they had a distrust of government and that was particularly important in this case given the fact that there was a confession obtained from the police this court should defer to the factual findings of the district court in the state court and affirm the judgment thank you i'll just point out one thing so when when the prosecutor was asking this juror about her work the juror stated that she worked with victims who who had experienced the holocaust who have vietnam and who were victims of natural disasters and that is distinct from a person can be opposed to to these kinds of issues and experiences and sympathize for the victims that have gone through those experiences and  necessarily be opposed to the police and the government in the united states well except for how there was like twenty minutes for voir dire right all right so you have to accept the fact that to some extent you can't get to know these people like you can't spend a weekend with them or anything like that so prosecutors and defense lawyers are required to use you know proxies they're required you can't use race but they're required to look at certain things and just sidewall given the time that i have with this  be a good juror it's true maybe that person would be a good sure but maybe they wouldn't because they've been in fault that person's been involved with victims of tyrannical regimes that being said why just that do they have to keep someone like that why is that race because in this i think if the juror had only said you know i donate to amnesty international or i sympathize with the cause of amnesty international generally i think the prosecutor could could use that statement and have to in would have to in that moment use a generalization and strike that or because this jurist pacifically discussed what she does the work that she does i work with victims of natural disasters of the holocaust  vietnam the prosecutor i think in this situation had enough information to know that the prosecutor that this juror didn't necessarily sympathize with the defense that she was more prosecution oriented thank you thank you let the thing both counsel your argument this morning the case of kit with versus causes submitted