you know we heard the  well apparently it's a well trodden path and so today i will use my time to address mr goodwin's first issue which is the issue of the preparatory challenge mr goodwin was convicted of possessing a firearm and ammunition at trial he defended on the grounds that if you possess this firearm or the person who did possess this firearms was shooting it into the imperial courts housing development as a lifelong member of that community and mr goodwin's attorneys thought to the extent possible to construct a jury that would be able to hear that machine gun fire was fired into a community and still have an open mind to believe that it was not mr goodwin but a rival challenges the for some reason she did absolutely so the question i have for you is in light of the decision that she relied on did she have to go to step three or could she rely could stop at step two because you thought perhaps for instance in this case stretching people from less populated areas would have a disproportionate impact on white jervis to the extent that bishop even suggested that it's clearly been overruled by the supreme court and by the circuit of the law the equal protection act and on vatanen specifically it's quite clear in order to find a violation there must be proof of intentional residents that excluding people from compton and had must have had prejudicial basis this was actually quite complicated because the prosecutor said so many thing cited to the prosecutor's language but what the prosecutor said was because that you're in that case came from compton which was a poor black community she was likely to believe that police picked on black people and that was quoted right  beginning of bishop it was quoted several times throughout this ship and it seems to me very relevant to the court's decision in this shit that it was not just that she came from a predominantly black community but that she can't that because she came from a predominately math community the prosecutor believed that she was likely to sympathize with black people and believe that police picked on black people but that isn't the the argument here is they understood the objection at trial central los angeles that the defense was attempting to exclude whites from the jury in the hope that they could fill the jury with people more from that community who would somehow identify it is  fact that a person comes from a community that is predominantly white a predominantly black and that you are characterizing them because they come from such a community starting now for a moment mr farris did not come from such a community but assuming for a moment he did come from such a community that is not enough to show intentional racial discrimination if it were it would also be for instance we often hear litigants striking people because of the profession for instance dr i don't want to doctor on my jury i don't want to lawyer on my jury clearly statistics are going to show that these really these professions the legal profession doctors are also predominately white and yet there's never going to case i could just can't believe there ever will be a case that says especially responded to the prosecutor's citation to bishop by concluding in athens conflating step three and a step two in reliance on the ninth circuit's decision in bishop that residence was being used as a proxy for racial discrimination and and apparently she decided she didn't need to go to step three is that a fair reading of the record it is a fair reading of the record but we have to out the understand then that that portion of bishop has been over residents of the new year person to racial discrimination you wouldn't have any argument before us and that i will have no argument before you but as soon as your honor made clear with your initial comments this particular judge was very careful she told us what she was doing when she meant to rule that step three she said she said i believe that that explanation is not credible she wasn't afraid to tell the prosecutor it when he attempted to strike i think it was in this howard that i find your explanation not credible and then she backed it up she explained why she found it to be not credible she explained that he had only five black women that the way that he had mischaracterized her responses to white your questions so this wasn't a judge that was kind of lucy goosey with her stats when she natural on staff once she was quite clear she says i find that that does not give rise to an inference of racial discrimination and therefore you haven't made out a prime official case when she wanted to rule on step three she was quite clear she says i find the defense explanation to be credible i find the prosecutor has not borne his burden of proving racial discrimination employed as use proxy if you will for a racially discriminatory purpose that that constitutes a violation of fact but the way the government characterized bishop in purpose but prosecutor did mischaracterize the case he did say that bishop stands for the proposition that if you're striking someone because he's too far from this or from a predominately white area that  for whatever reason the judge didn't get to step three is judge thomas has asked you and you you agree we all agree that i agree why does that require an automatic reversal why shouldn't we say ok under the circumstances will remanded for hearing in judge morrow go hold a hearing and finish what you were supposed to do if you find that there was a discriminatory purpose at step three then no harm no foul if you on the other hand if you believe the prosecutor now in light of the cases that have been developed that this wasn't a race proxy this was for urban versus country bumpkins you know it's nothing to do with race then we have a different situation why is this an automatic reversal case well is that that the defense attorney's explanation was pretextual or lack credibility or anything like that he just said he's asian and left a juror on the on the on the jury and this court held that the remedy w no improper purpose to this challenge then and she would have to give him an address he would have to give him a new trial and another circumstance in which i would argue she would have to give a new trial is if she said you know what it's kind of too late for me to figure it out at this point i can't decide right now what mr views as motivation was last year when he did this my argument then was he would she would also have to argue a new trial and there's a second circuit case which is cited in one of the in this case a judge exercise some healthy skepticism with respect to both parties racial motivations this was a racially charged case that involved and police conduct at african americans in south and south los angeles the defense specifically wanted that that issue before the jury earlier on that day the court had addressed that issue with respect to evidence of the police treatment individuals in imperio courts neighborhood the court had correctly excluded evidence of that general conduct but that was clearly an issue that the defense was interested in and had been initiated helsa been issues about evidence coming in regarding the rampart investigation other issues that highlighted the racial tension and in los angeles the race was permeating this trial by the time we got here and in fact the baton challenges were flying in this case back and forth the court in this case the stain some of those challenges rejected others but in every case indicate carefully considered those challenges and reached a determination whether the strikes were in fact reflective of purposeful tracy family business work or that the one thing she didn't do was go to step three and she clearly knew how to do it that the transcript is replete with regard to other challenges where she did exactly what our law appears to require right and she did not express ladies so and with respect to this particular challenge and what i think the other challenges do reflect is that she certainly did understand thought i read the transcript too which makes it all the more glaring maybe too strong a word but all the more significant that in this particular case she did well i mean how can we overcome what appears to be a violation of our case well first of all it's really not clear i mean she never specified that she was really not on the basis of step two step three that just wasn't discussed and it probably wasn't three that issue never had not come to light at that point so in that parties were talking and the government and the court were discussing fish that neither one would have necessarily had reason to think about whether he had been overruled or at least would have had that issue obviously before the judge seemed to think that just the mention of any kind of geographic reason had to try to translate into into a race reason well that might be an think the prosecutor was trying to get at and which is the assumption in bishop and i also think that we should assume the court properly understood case one thing the ship and probably was familiar with the ship and this is actually a very that the parties are among the court never come and as to whether the germans from santana's misspoke or palmdale i mean the fact that i mean it's entirely possible that the court was aware that there was in fact from palmdale and factor that into the believ but the bottom line is that nobody was talking about palmdale the explanation had to do was timeless the best which everyone did seem to agree was a predominantly white area whether the defense attorney was right or wrong about that that was what he stated and that was apparently his mindset or in fact he was wrong in the fact that he was he was wrong about it maybe even knew he was wrong about it could have certainly factored into the judge's assessment of his explanation and if  question i mean the country bumpkin versus the sophisticated urban dweller who goes to bed each night with the sound of gunfire ringing in his ears or it is as i think i read the transcript to be an argument by the the problem is that the judge never said that and so we don't really know on the one hand it could very well be a tactical move on the part of the defense to keep rural people who may not be quite as empathetic to what life is like in the inner city off the jury and that's not necessarily a racially based reason to bounce somebody from your right but that is not what the district court found with the district court found was that it felt like in the parameters of  clearly ok i'm sorry i'll try to speak up a little louder and what the court found was that and that this thought within the parameters of bishop again this is a shorthand it was it leaves us with a little uncertainty as to what that means without a doubt and but what the parameters are if we look at what they actually hold it deals with the assumption that in that case that black a black girl living in a predominately black that is prohibited by that send that yes necessarily that reflects sympathy a sympathy that i lacked or will be more sympathetic to a black defendant and that is really what's underlying  there's really a very good reason for doing that may well be true and have been my experience and that's very well may be the case and if you're living in in south central and and any right yes ma'am whether it's true or not or whether i think good reason or not for striking and sure what this court is how even if it were true even if that sympathy were in fact true that's not an assumption our stereotype that we are willing to permit and i think that that is really the parameters of bishop and what brant but bishop stands for the proposition that you can't do that you can't make that assumption but the prosecutor here was pointing out was the defense attorney was doing exactly the same thing in reverse there is language in bishop in which we say where residences utilized as a surrogate for ratio racial stereotypes as for instance a shorthand for insensitivity to violence it's in vocation runs afoul of the guarantees of equal protection and if that's have valid you'd have to have more information to do that and she didn't have the correct information well in this person was from palmdale you know that's a different area not necessarily it really comes down to what was the intent of the defense attorney and it really comes down to what his mindset in the assumptions that he was making and what i think the court was actually saying and what the government was pointing to in a short handed way is  that i whites are from a predominantly white neighborhood is going to make certain assumptions not be sympathetic to an argument about mistreatment of blacks in south l a and that's exactly the flip side i think the exact mirror image of this ship and the assumption that the court and bishop held was improper that was really the point that the prosecutor was trying to get across and i think that's really the point that the court ultimately accepted so whether now whether the court you know could have been more clear  a particular demographic of the jerk necessarily if you're striking someone from that demographic you're striking because of race i don't think we certainly are now and i don't think we intended to trial suggests that that is concerned that the court the district court may have improperly not made it to the third step well then clearly the proper remedy is to send it back to the district court to allow her to go to the third step if that is the error if she did not and  didn't engage in a proper analysis and the court believes that that you know that may affect the outcome the proper outcome of that that's an challenge then certainly this court can and should send back to the district court for the limited purpose of allowing her to read and analyze that i don't i don't think that this court has to do that on this record because necessarily the court made this into terminations whether it was a step two or step three the court did ultimately have to conclude and did conclude that this strike w fact race based and i do think that the best reading of the record and the assumption that the court understands the case law is that the court was saying what really was going on here whether stated or not was that the defense attorney invention and i think because the court necessarily have to find that it that whether you call it whether that ends up being a pretext whether the is analyzed as pretext or proxy ultimately the conclusion is the same and for that court below must necessarily have found and must necessarily have thought and must necessarily have concluded that the record doesn't bear that out the government's argument is based on what we now think that we understand bishop to mean meaning but we now think after we've received all this bracing and after all that there have been numerous supreme court in the supposed she was referring to that passage that i read to mrs walker right out of the bishop of pakistanis that was supposed to read it just before jury selection and it was freshener if she had if that had happened and if the record show that that happened i would agree that i lose but it's and we you know we frequently  lawyers and judges refer to case a fish and in the course of arguing in court without getting into a detailed recitation of what the case stands for it's enough to to for purposes of preserving the fact that you a number of cases but in this case the government didn't just say bishop the government characterized bishop from the government characterized bishop it's getting to the proposition that if you strike someone from the predominantly white area that that is not when the prosecutor said she's a black woman from a black neighborhood and she's more likely to believe the police believe it but pick on black people if the geographic explanation is specifically and explicitly not race neutral that step to bishop was quite clear that it was about step two it says the crux of this case is whether it's race neutral at step two i think that they like the law actually probably has a ton of  well i mean it's you could read it to say when the prosecutor in this year explain why he would strike you moved yours from compton and that offered what he thought was a neutral reason that we declare as a things that happened in l a for instance who might every so often hear gunshot gunshot fire and that probably is ok there's nothing racially discriminatory about trying to select a juror that would be open minded to the defense that he was going to i would think you'd have to know something about and it's kind of interesting from the record i mean i suppose the court could take judicial notice that routinely in the central district of california when you walk into court on jury selection day they give you a list and that list has the names of all the jurors dresses and it has where they live so it's probably likely that mr diaz out one point or at least among that he  said santa barbara and sam was this bill areas which are predominantly white and that is the way that the government characterizes areas predominantly white you can't just write one from a predominantly white area and college race neutral  still somewhat less populated area this confirms that mr diaz was not exercising a race based strike he struck someone in keeping with his theory that was from a more rural or less populated area it happens to be a very recently diverse rural area similarly he struck mr ortiz that in this peterson from a racially diverse last populated area so if you do a kind of a comparative jury analysis in entire attorney conducted was year picks up only fifteen pages of the transcript again in the central district attorneys are not often allowed attorney conducted by dear they're not very good at it they don't ask very many questions in this particular case mr diaz kept on going back to the first third i think it maybe it made him feel comfortable to keep asking the first juror questions but he pretty much only spoke to the first or i think he spoke to two other jurors he did ask kind of general questions like does anybody live here in a community that has high crime rate it and one of the jurors responded well what do you mean by that and he said well where it wouldn't be uncommon to hear gunshots so we know that mr diaz was looking for people who you know whether he was looking to kick people who wants to know you less got shots or if he was specifically looking for people who would hear gunshots it's really the same thing he was looking for people who would be more familiar with an urban everybody gets a copy whether they had it in their hands at the time i don't know because usually it's done it's tigar and most attorneys you know will only bring their jury chart out as opposed to the long list so whether they had it in their hands at the moment they were at sidebar morning our morning i mean