may please cord good morning my name is peter o m counsel for cherami atkins we are raising a batson claim on appeal it is on the basis of race in january of this year jeremy atkins with me by his side proceeded to jury trial in the western district of tennessee the charge was for being a convicted felon in possession of a firearm the jury for dear began that morning as is the custom in the court judge folks began with his own set of wired to your questions they focused on each perspective jurors employment work history and if they were married as well how many children that they had as the morning progressed each prospective juror one by one gave answers to these correct your honor were there any african american jurors on the actual jury there were your honor there were actually five african american jurors who did ultimately serve seven caucasian jurors and to the best my knowledge no other races or ethnicities does the does the record in this case indicate the names of the and races of the jurors in other words i know that there are some comparatives that are involved here and do we know the ok i think as far as the transcript itself is concerned i think i could have done a much better job identifying next to each name the as well as it is reason even indicated in the brief what the race of these three people were understand been struck was african american at that juncture i think it was our assessment that there was sufficient evidence at that point to make out a prima facia challenge and to bring the pats and clay was the fit mr dandridge he was so you were not challenging in effect or were you the first four strikes did you sense the wave the right to challenge those we did i think maybe wave would be too strong a word but i think the focus o inquiry before the district court and the focus of our in corey before this court is on the last final strike against antonio dandridge as the batson inquiry progressed the district court correctly held in our estimation that we had made a prima facia showing the burden therefore shifted to the government and the burden at that point then the government began to proceed through each of their pere in the record as well that they went through each one one by one but then you were challenging the other four we were challenging the bats and we i think with respect to antonio dandridge here were our yesterday in that there wasn't any reason to there was race neutral explanation for the other four stripes there were race neutral explanations for the other strikes which we have ultimately conceded it's on the fifth strike how does that impact your argument that they underage women alone was the from i think it impacts it slightly but not fully for us i think it's well settled that even one strike basis on the basis of race is unconstitutional and can sustain the bass and challenge and although the government was able to offer race neutral explanations for the other four that we could not ultimately rebut in other words that we could not demonstrate fully that they were pretextual the fact that there were five strikes all on the basis we rephrase that all against african american jurors does first of all make our prima facia case which also then supports our efforts to show that the comparison in the district court we did not you are now is an omission on my part but i think the record i think the law is also equally clear that this court can do a retrospective analysis of the pats and challenge and do its own comparison of antonio dandridge and similarly situated jurors who were ultimately in panel so to directly answer the court's question that was an omission on my part before the district court which i'm raising for the first time here in this court here now are the three proffered explanations that the government gave for striking antonio dandridge first and i'll just quote directly from the truth the government stated mr dandridge is just one of those people that i don't get a good feeling about the government on appeal asserts this as a legitimate race neutral explanation our response is actually fairly straightforward when we look at bats in the decision itself it states that in order to carry its burden of production the government must state in clear and reasonably specific terms what the reasonable race neutral explanation is are there cases that say that it's not adequate i just don't have a good feeling about somebody not that we found but i think if we compare them to other cases where we talk about the mean or there is specificity that the courts hang their hat on in those cases whether it's staring at counsel whether it's arms folded whether it's perhaps falling asleep while you're in your seat if there were actually if the government had actually supported this sort of gut feeling with those types of the meaner evidence that might be a different case but i think just stating that he did not have you know a good feeling about of i do sometimes get the feeling you are but i think when we get to a batson challenge and the defense or in our case we have made that prima facia case the burden of production shifts the government and they have to do more i think at that point they long employment history which i don't usually like i prefer people that have a stable background before the district court mr death mr atkins with me representing him made the argument that you know judge if you really actually look at it he has a fairly stable background he's been in his job at service master for four months and he was at krispy kreme for a year before that so on balance that's actually a relatively good work history not bad and the work history that the district judge asked for was for what time period was it somehow i have the impression from preparing this case that it was just a year that's my recollection as well your honor and that's just based on my memory of the briefing that we did but i don't recall specifically at this time well it was thank you fifty is still in other words this was a complete answer having a relatively good work history before this court we are raising an additional argument and admittedly for the first time we are asking this court to take a retrospective analysis and compare antonio dandri to jennifer app sure yesterday did they also give another explanation they did about when he was probably got will be able to pay attention because he had nine years yes or no and that's the third one and i'll  going to be coming to a close i had one question which was that your client got a thirty seven month sentence how many months as you serve so far he has served let me just make sure i think through this clearly his bond was revoked in morning may please the court and names elizabeth rogers on behalf of the united states this court should affirm the district court's rejection of appellant batson challenge a trial in deny his request for a new trial for two reasons first there is no affirmative obligation on behalf of a district court judge to conduct a comparative journalist if neither party argues for want to trial and second the district court judge in this case properly moved through all three phases of the hearing at trial appellate entire basis for appeal is that the district court judge erred at the third phase of the bateson hearing concerning a single juror antonio dandridge appellant concedes in the government agree that the district court judge properly moved through the first two phases of the bateson hearing first that the defendant at trial established a prime aphasia case and second that the government produced race neutral reasons justifying the strike primarily the employment the unstable employment history in the child care concerns that the government attorney had and therefore the entire appeal there rests upon this third phase of the bateson hearing the defendant the appellant i'm sorry contends that district court judge erred by failing to conduct a comparative juror analysis a trial  and and you would think that the court with that with the benefit of the jury questionnaires and other information would have asked the appropriate questions of the of the jurors which the court in this instance didn't that so that your honor i'd say that it's actually the defendant's burden the party opposing the strike at trial to persuade the court that any proffered race neutral reasons given by the government court has actually said for instance in united states versus cecil in two thousand and ten that even if these questions that were asked if the district judge is aware that these questions were asked these employment alleged similarities have been raised if the defendant or the party opposing the strike does not argue for a comparative journalists a sit trial then there is no affirmative obligation on the district court judge to on the record conduct one in but it didn't keep us from  correct not entirely that would not be that are not that would not be the government's position the there is the supreme court has conducted in the past retrospective comparative journalists he's however they have noted insider versus louisiana in two thousand and eight that those are generally disfavored our actually quote from the court a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were felt like they had enough information from mr dandridge to make their strike but if there were other jurors who had multiple kids why wouldn't the same concern applied to them again i hesitate to begin to argue these alleged similarities and differences because i would not agree that that now is the appropriate time to make those comparisons but if we were going to i would posit that the combination of the child care concerns and the unstable employment history coupled with the demeanor of the juror and that the government attorney said i didn't get a good feeling about it was the combination of all of those factors that made the strike appropriate in this case because so with respect to the three purported very similar to the argument that the defendant appellant made in united states versus cecil and this court looked at that and said that no if the the appellant the party opposing the strike did not affirmatively argue for a comparative  rnalists at trial then what would not be appropriate and the cecil court got it right for two reasons first it's too onerous a burden to place on a district court judge to sue a spontaneous conduct a comparative journalist this if neither party argues for one and second again the burden remains on the party opposing the strike throughout all three phases of the bateson hearing this case shows the perfect example of why it's just too great a burden to ask a district court judge to su analysis like this the district it doesn't seem to me that it's that great of a burden frankly the district judge has been presented with the defendant's challenge to the government's challenge to dandridge and the only reasons are these three reasons why shouldn't a district judge asked the prosecutor in this situation well you know have you have you been consistent all along in challenging giving peremptory challenges for people who have a so called checkered work history which is simply that the man changed his job during the one year in question i mean that's a really arguably problematic argument here and then the eight children and do we know whether mr was married yes he was married he did also there were two parents who could be taking care of the children while he was there and he works so if he's working he can't be taking care of his eight kids while he's working those are all  are all areas of exploration that the defendant at trial had the burden to explore in order to rebut the government's proffered race neutral reasons the burden was on the defendant in this case to explore those alleged similarities honor the the again i'll say the totality of all of those factors is what made this strike appropriate and it kind of gets to the heart of the matter that the child court judge's ruling on this is entitled to great there is some confusion as to whether because they appellant here is arguing that there was a mistake of law perhaps because of this failure to conduct a comparative journal says that would be to novo review your  first first that the that this court should get allies plain or review because of the defendant's failure to raise the specific argument at trial that's what happened in united states versus jackson in two thousand and three this court said that in part the defendant appellants failure judge this employment history read the book yes the defendant did make a rebuttal a trial but the failure to make this particular argument at trial the government would the government's position would be that plainer review is still appropriate would be applying plain your view only to the comparative issue that wasn't raised because he does raise a challenge to the challenge to do yes your honor though so the only thing that we should have playing their but there is deference this court has said repeatedly that the factual findings of the trial court judge during abouts and hearing are entitled to great deference and that's those credibility determinations that the district court judge has to make during our judge well there are an indefinite number of credibility determinations that judge folks made in this case first when he was judge folks who had the opportunity to observe mr danger just demeanor during why dear it was judge folks who had the opportunity to assess bleeds into the to the credibility determinations that judge folks make judge folks made the credibility determination based on the prosecutor's demeanor in the prosecutor's race neutral reasons and the prosecutor in the district absolutely and that's the challenge cases there are there is a lot of case law that suggests that the trial court judge being able to assess the credibility of the prosecutor or the party making the strike defending the strike that those are important credibility determinations on behalf of the district court judge and in this case the district court judge did make those credibility determinations based on mr characters demeanor and did make credibility determinations when mr kerik or said i just didn't get a good feeling about  did the district judge say the thing that i have found is on one seventy six to one seventy seven in the page id that the court says i will allow lawyers obviously to follow up on things and it does seem to me that it is a sufficient answer with regard to mr dandridge and his work history given everything else about him so i'm having one more sentence but it doesn't seem to be you say anything about credibility finding no no there is no explicit on the record adjudication of those simply that those credibility determinations had to go into judge folks his conclusion that the the that challenge should be denied that credibility determination is entitled to great deference from this court but even if this court decides that there was error in failing to conduct a comparative juror analysis then the government's position would be that a remained for an additional hearing is most appropriate here that's what this court did in taurus ramos and in united states versus mcallister in two thousand and twelve in those cases the the six circuit remey ended to the district court judge for additional findings an additional on the record development my time is up if the court has any other questions thank you very much  so to ask the question that your opponent has left us with why why shouldn't we if we thought that you had raised the fish and concerns about the bats an issue why shouldn't we remain to the district judge to make furthe findings in light of the concerns and the fact that comparative analysis wasn't done i think there are two potential remedies at least from our view in this case the court believes that additional fact finding is necessary that would be the appropriate remedy to remain to the district court for further fact finding for the district court to assess whether a new trial is warranted but there are also other cases for example mr miller  it's not a versus louisiana where based on a retrospectively analysis the supreme court itself found sufficient evidence to determine that there was pretext and so this court were similarly able to your opponent relied heavily on this case how would you distinguish it or indicate that she was not correct in your view so case was where the parties did not ask for compared to district court did not undertake one and the sixth circuit stated that the district courts failure to undertake the compared to her analysis was not quote necessarily reversible error the sixth circuit then went on to do it own compared to analysis and here was the facts and cecil the defendant was an officer of the nashville police department one of the jurors was the stricken georgia challenge your was a wife of a long standing high ranking officer in the nashville police department so what the sixth circuit found was that this individual that was stricken was actually not comparable to anyone at all that she was truly unique here are some of the quotes when questioned as to why the government structure in court or the government's lawyer responded that it was because her husband was a high ranking officer in the metro national police department none of the remaining jurors was tied this intimately to the n p t later on cecil contends that in light of these discrepancies what was if anything more likely to know about the people and policies of the and p d so cecil really was a situation where we had a defendant that was part of the national police department and a prospective juror african american drawer who was married to a high ranking officer and therefore really could have had a very intimate nose job was the point in cecil that that the court of appeals could do a comparative analysis yes no normally it was not supposed to do that if there had not been a request from the district court is that what you're saying the the point of c so is that one the district court does have an affirmative duty to do a compare torn houses if that analysis is readily available to it it's failed to do so this and costed necessarily reversible error however undertake that on analysis itself and c so once it undertook that analysis which is appropriate for it to do it found that there actually was no true comparative should we do a comparative analysis of the issues you didn't even write for  l the answer to that to my benefit is yes but you didn't mention anything about childcare business your argument went to the job no i actually made a childcare argument as well if i recall and  that i'm subject to being arrested on this if i recall correctly i stated that antonia dandridge was married and i think i raised that issue as a possible argument for why childcare would not be an issue that there would be someone else to assist and if i'm mistaken on that i think i would definitely advise the court of thank you both for your argument the case will be submitted with a clear call the next