the michigan state a public defender office on behalf of curtis parks with me a counsel table is colleen fitz harris from the federal defender office in detroit my former office reserved three minutes rebuttal time curtis parks was convicted by an all white jury and this was not an accident his court mistakenly but systematically excluded almost half of the african american jury eligible population from the jury pool in can't county in spite of that history of an airhead for african americans there is you're not contending that the exclusion of the african american from the jury pool was intentional or even knowledgeable or you know not the systematic and and in the systematic exclusion that was not a structural arrow i said it was your honor you believe it was in spite of the six systematic exclusion from the jury pool has been your head for african american jurors we know this from the record and his prosecutor methodically and deliberately and intentionally excused and removed each and every one of those four african american jerks without an objection without a reason without a race neutral explanation mr parks brought both of these claims to the state courts in a unique minissha michigan procedural vehicle prior to direct appeal with with the record it with a racially neutral explanation sort of well miss the fact that the issue isn't pretty so they were never asked to give an explanation that's so that states can hard to fault the government for that but i sort of question about the jury selection you know most both of my distinguished colleagues have been trial judges so they're much more familiar probably that with picking a jury than i am with my understanding there's a lot of components to this and i was just trying to figure out what all of the information that was available to the lawyers in in the courtroom her picking the jury and we have parts of a transcript i think are affidavits that the try to recreate a transcript but for example is there a questionnaire that was given to all the jurors or potential jurors before jury selection i read from my recollection is that there are questionnaires that do not ask about race that's fine but there are question in other words those questionnaires all provide significant information to counsel that they don't consider how old you are where do you live where you go to school what's your job and so the and and then where there was a time when there were questions that were asked to all the jurors as opposed to sort of one journey vidual sometimes i know during selection they'll say look if has anyone ever received a ticket raise your hand in the people may be asked questions to follow up on that was that done here do you know i would be afraid to say for certain but typically yes there's a court room for deer and then the attorneys will ask more specific questions i guess what just concerns me is that there's a whole volume of information that was likely available to these law both sides are picking the jury and you pulled out just a couple of little snippets and said well comparing those obviously these decisions were made based upon race and that's just a museum it's a whole volume of information about a whole bunch of the demographics of background about these jurors that we just don't know about well your honor i don't think and i hope we haven't said that obviously these decisions were says sorry he gets to excuse whoever he wants in the u s supreme court says no that's not how it works we need an explanation all we're asking for here is an explanation mr parks is entitle to and the law demands it and it would have been very easy practically in the months after trial before direct appeal when this was all presented have to if i may just a fact i mean assuming those numbers are right which are some debate about whether i mean even the races i think had to be that information had to be recreated but assuming it's all right there just even a basis for a new different lawyer standing up in objecting to the jury selection process again there's a whole whole lot of information in and i mean part of this does go to the nd problem which is then the government have to justify it because the lawyer who didn't raise it we don't know we don't have any of that information available to us about what the government might have said in response and that's why a hearing was necessary and here we are fifteen years sixteen years later still asking for that hearing and we understand the practical difficulties and in the in the states as the fault lies with mr parks the fault is not i with mr parks he gathered his affidavits in the weeks and months after a trial before direct appeal and presented this directly to the michigan court of appeals requesting a hearing which is commonplace is it possible that the marxist lawyers is a possible parsers lawyer may have not won these people of the jury for some reason that is exactly the sort of question that could have been discussed analyzed and res hearing during the during the batson well but if you wanted them on the jury then he wouldn't he would have brought a bass an objection he may have thought you know i was going to make those strikes myself there's issue about engineer each one struck an engineer and so i did maybe it so we so we're really just was a really speculate as to what was going on but in the minds of all the lawyers and all the information they had in the race that this is where you're at this is why you're asking for the hearing now because it is speculative and there needs to be a more fulsome record developed in order to get answers to those and other questions correct that's exams mr parks was in kind of a tough position he's got an advocate who didn't make timely objections and then you have this thing made after the after  the hearing at babson contemplates actions and explanations by the person who's making the racial strikes it also implicates the role of the judge in preserving the trial things that you're saying that the counsel being ineffective for failing to raise the subject and ask for an explanation so are we here on ineffective assistance of counsel claim yes we are so what is the standard that we use to judge that the standard on ineffective  think the waiver question which is argued more under our fair cross section claim i think it's going to implicate the strickland batson claim as well even if we get every man to have a hearing in a finding that these were race based exclusions and unlawful there's still a question under weaver whether that constitutional violation violates and implicates fundamental rights and it absolutely does i mean we are talking about what the supreme court recently described as the sort of toxin that even in small doses can be deadly this is race based discrimination it implicates the entire process the entire justice system and a new trial would absolutely be warranted if counsel is found to have been ineffective for failing to raise a meritorious batson objection that would have resulted in a new jury selection i mentioned the fair cross section claim under weaver and we do think obviously we've been here a number of times on these claims and we have the embryo standard we have are really it's our contention up and all of that ambrose says you have to look at the strength of the evidence no matter the nature of the error and i think the supreme court was very clear that that is not always the case you look to whether st you can look at whether the evidence would have made a difference in the outcome of course that's one way to get a new trial in a structural there but also you look at whether the error was the type of error that affects fundamental fairness and fundamental rights and it's sort of a can textual approach to this and you look at the rights that are protected or sought to be protected by this claim and here we have the right to have a jury drawn from a fair cross section of the community and have a jury free from racial intentional racial discrimination those are precisely the sorts of fundamental rights implicated by by what by by way of or if you were not didn't tell us what exactly what kind sp's a specific cases there's such pervasive structural error that we can ignore their concerns and just find a right to need a new trial but left that to your honor's right and so we have star court as press some precedent in the area ambros correct and shouldn't tell us that that was wrong you know not explicitly your honor the supreme court did say though and we have in we have or we have a temporary closure for practical pragmatic reasons not by the judge by court staff that really didn't implicate fundamental rights that the rule requiring open courtrooms is designed to protect that is night and day different than what we have here we have two very significant pervasive constitutional errors affecting the racial makeup of this jury and the and in the ability of the entire community to participate in this process that we're violated and the rights sought to be protected by this the community is right to have a voice how should we consider the comparison of the percentages of african americans in the community these are the the percentage on the jury because it was not wildly disparate even though there have been this exclusions how do we how do we consider that that item of evidence in this court is always already found that the disparity levels in this case do give rise to a meritorious fair cross section claim meaning that it was not a fair and reasonable representation now we have a community in kent county that is largely white the african american population is relatively small so but as a comparative matter it's almost half of that population the zip codes that were excluded from jury service including m i want to mention that i mean at trial when we're talking about the strength of the evidence and he's questioned he's questioned about you know you you expect the jury to believe that you know somebody hollering down to you to come on propositioning you from her window and his response is if you lived in my neighborhood you wouldn't think that that's such an outrageous claim well guess what there was nobody there in his neighborhood because they'd excluded that zip code with several others in the city of grand rapids where minorities tend to live so when if we're talking about the strength of the evidence and whether it would matter in this particular case if we even get there finding that we have or doesn't change matters this is the sort of case where population and in and in diversity by zip code and by neighborhood in the things the sorts of things that people see was directly at issue at trial and part of the evidence can take you back to the strickland claim in just batchelder was asking about the elements for that claimants and so you would agree that you have to show some form of prejudice some form correct  so what was it was your client's explanation for the bloody lip what's his explanation for the bloody bloody lip i don't know that he had an explanation in his testimony for the bloody lip if there was i don't recall when her story was that he caused that injury and i think they were stitchers that's caressed it years or twelve stitches that's correct he has no explanation for how she got a bloody lip i believe that's correct and in here we're looking at the strength of the evidence and whether it would have made a difference to a jury you know to a jury with a different demographic makeup it has always been our contention that that should not be and is not an appropriate measure here that the court shouldn't  good morning they please the court ergaster from the attorney general's office on behalf of the state so make a couple of points about the fair cross section argument before turning to the baton challenge and that is that there's no dispute that the that the fair cross section claim is  was a reasonable probability that the outcome of the jury would have been different and the primary consideration for that analysis is the strength of the case we have it doesn't change that and the reason we were doesn't change that is the opinion itself it says we need not decide that question here hope from the case and also says this opinion does not address whether the result would be any different if the errors were raised in an ineffective assistance of counsel claim on collateral review weaver reserve the question this court has binding precedent on the very issue so in the summary orders and well born in carter this court has said we were doesn't change the ambrose analysis and if you begin with the actual prejudiced standard which is the governing one mr parks has an obligation to show that there was prejudice here and if you look at the case the evidence was overwhelming against mr parks he was caught in the act during the rape when the police came into the house his claim is consent the woman was bleeding from an anus and from her mouth she had to fourteen dollars stitches placed in her mouth and then he lied about what occurred because when the police st come into the house he has his pants down and he's raping this woman and he lunges at the police and then there's own testimony he denies having lunch with the police he denies having been undressed when the police came into the house the jury convicted him in forty five minutes the case was overwhelming so once you apply the actual prejudiced standard mr parks is unable to show actual practice on the fair cross section so he has a nd claim atha under pinholes to this court is limited to the record that was presented in the state court and this court has reiterated that very point in ballenger a judge siler opinion which he reiterated you can't create a new record in fact in that case there was a new record generated in the this court then disregarded it because the st analysis has to look at the record itself now here the prosecution exercised seven peremptory challenges now you have to remember this trial occurred in october of two thousand and one in fact the circumstances that are at issue here occurred on the morning of october th two thousand and one it was eighteen years and a day from today ago so the claim here is there is a need for a hearing ask that prosecutor back from two thousand and one what were her motivations for the exercise of her several seven preemptory challenges which included the exercise of four dollars and four dollars primary challenges against african americans the reason this record wasn't developed is there was no objection if you lost it we also have to ask the defense counsel why he didn't object right that's exactly right i think that's part of analysis aniston's but i think you also have to look since there is a marriage determination the decision of the state courts doesn't have to be one in which you might just you know think differently it has to be an extreme male function and has to be something that's essentially a grievous and on this record in fact what the mission court of appeals said is the same thing what judge lawson said below is that there were just a handful of jurors are at issue and if you look through it's not a mystery why these jurors prosecute a case where the lawyer was wasn't making some strategic yes no actually the lawyer was engaged in picking which jurors i thought that's exactly right i mean the other cases the one of the primary cases that's before two thousand says victim really has to resist in order to be demonstrated to have been raped the rd work for the probation department always worked with criminal defendants and never with victims and the th was an engineer and i have to say i was a trial prosecutor you don't want people who want mathematic precision sitting in your jurors but there was also quite engineer no electrical engineer true i don't like engineers but the prosecutor did not excuse that but the prosecution had an exhausted all of their primary challenge and they have they have not right but in other words not exhaustive those but i'm saying that he went through you're right but she could have she could have then at the point in which mr williams just on the jury she could have asked that he be removed it would have been different if she had exhausted all for printing challenges and not asked mr williams the other  to be removed of course mr williams like right out of the box and said he had a close friend as a police officer so it may have been well in any event the the point is this that really on this record there is no case from the united states supreme court in this decision it's a historic decision this is really a race neutral basis in fact in the motion to remain that occurred in september of two thousand and two more than but a year after the trial one of the things the prosecution had said in its appellate brief and in posing any relief setting it's too late it's going to be too long ago in order for it to be a meaningful refute ask the prosecution what the basis were for her decisions for the primary challenges and that brief was written in september of two thousand and two we're now sixteen years later and the expectation is that we're going to be doing anything other than essentially a record review where there are reasons apparent from the record itself there is nothing to the idea that some of there's been an extreme malfunction where defense counsel did not object in the st time that a batson challenge is raised on appeal duty to remain in this matter for evidence or hearing where there were race neutral reasons apparent from the record itself so consequently the right outcome is how judge lawson reviewed it below which is to which we see that there is no prima facia case that's been established lease it's not a stream malfunction there's no clearly established supreme court precedent that which is going to by this court that requires it to say what the mission court of appeals had done is wrong bat doesn't required miller cockrell doesn't require and those are the cases that are before august of two thousand and three and that's which the decision came down from the court of appeals because of course green versus fisher will subscribe universe has to be existing supreme court decisions at the time was a court of appeals rule so there was nothing to tell the court of appeals that somehow they were duty bound to remain and when they can look at the record itself and their analysis is what they say is there's nothing up there's nothing from this record that would make us think that these were race based assertions we're talking about just a handful of jurors i lived two blocks away that might be a handful but it was it was the universe of african american jurors in the pool so you only had a handful to begin with i thought one of the things you're right on but what makes this hard is that kent county has a relatively small percentage of african americans in fact i mean the thing here is like to think the percentage in the county is a point to four percent at the time of the census from two thousand it was four point and that's coupled with the computer glitch that excluded certain  codes exactly so but the computer malfunction created this kind of small reduction although actually for this specific veneer four out of forty five dollars would have matched the percentages in the in the population almost exactly and that's one of the points you make in the kind of the fair cross section analysis is that the idea that somehow this kind of claim a fair cross section claim even if somehow that the supreme court later did a den of rare structural errors that are fundamentally fair this wouldn't fall within because the fact of a fair cross section has a very attenuated relevance for the actual fairness of the actual pettitt juries because of the small numbers at stake and we're talking about maybe one or two missing prospective jurors in the likelihood as a random matter of fact one of the pieces of analysis i provided to the court is the idea that if you look at this is a random and a likelihood that this may have had some practical effect on the pet a jury is less than fifty percent i mean for the fair cross section claim really it seems to me once you see that ambrose continues to govern the case really i think that's a really really easy matter to resolve the batson case obviously has the court a little concerned and asking questions but i think you have to remind the kind of the role being played here looking at the machine court of appeals because the standards are are so high for there to be a basis for relief with a request here they ask of mr parks as he wants to expand the record i encourage the court to kind of reexamine ballenger and reexamined pin holstered in order for him to get to that new hearing he has to show that the decision of the mission the court of appeals was objective court appeals what it had in august of two thousand and three when it reached its decision you have to say what did the supreme court tell me to make that clear that this decision was outside the range of possible reasonable jurists i mean just last and even though he had this overlay of deference he was supposed to oppose in fact essential was a double review which he said you can look at these jurors and you can see the race neutral reasons for the primary challenges now i think he's exactly right although that even though the analysis really has to be of a higher level of deference which is let me just ask you in this case as i alluded before the mr parks of course is dependent on his reviewing cockrell which is one of the cases from united states supreme court and in fact looking at the issue about whether there's a prima facia case and in cockrell it was the circumstance in which the prosecution had excused ten of eleven jurors and that had asked different questions based  on to the african american perspective jurors into the into the white jurors and there had been a history of discrimination in the dallas prosecutor's office of systematically excluding african american jurors and in the flowers case the supreme court handed to say as the victim has to resist someone who only works with criminal defendants an engineer this isn't rocket science about how i've been a prosecutor there was a reason that the defense counsel didn't object is because they knew the person w your you don't want people to watch c s i you don't want them and that's because it's not a mathematical the precise inquiry so in any event that's not that's why it's in the case law it's out there i mean that in other words anyone who does t practice they look at this record they think oh yeah i get it this is not this is like night and day with the cockle case where even a battle it is historic in the south where there is this no new role of excluding african american jurors and the idea that prejudice test and and he can't be the actual president test because of the overwhelming evidence of his guilt for the batson challenge is the two thousand two hundred and fifty four dollars d merits determination is this an extreme malfunction when the mission court of appeals said affirmed or sentient not to be or the briefs the pilots brief certainly talks about all of this in strickland terms but you are not ultimately is a marriage determination from the from the you know of you this is an ineffective assistance of counsel situation it's the double deference the cohen talks about this very point about double difference you have strickland plus because you have the strickland test overlaid with the at the test it is a strickland standard that's being reviewed but it's through the lens of ed so i want to you know i was emphasized to the highest threshold in the provides the highest threshold strickland's a tough malfunction in the state process this was an objectively unreasonable decision look at the michigan court of appeals decision st it's just confused it says mr parks has not filed a motion for a new trial it tried to develop the record on this bets and strickland claimed therefore were limited to the existing facts well that was wrong in two paragraphs later the court acknowledged he filed a motion and sought a hearing but we declined that we denied that motion so we're stuck with the existing record so we have an internally inconsistent to give us order from the michigan court of appeals again less than a year after trial with affidavits in the record in a request for a hearing and they denied batson doesn't say you need all th all this history and what you had statistics everything like in cockrell batson says you had forty four jurors who were excused by the prosecutor four black jurors excused by the prosecutor you're entitled to an explanation that is plain as day that  to turn on more and just solely how many african americans are in the jury pool and where they all screwed in that there has to be more to it than that and we don't know any to all this other formation we don't know why defense counsel to an objection i know you want to hearing but to me book or for an american jurors they were removed that's pretty much all you have exact same fact we had in batson exact same fact for african americans so you're saying that the removal of the for african americans the only african american that you're at that created and friends and the prosecutor could have rebut it that inference by coming i mean had there been i guess an objection by coming forward and providing a race neutral reason for her actions absolutely and that's what the law demanded either at trial with an objection by competent defense counsel or a few months later on direct appeal when that hearing was requested but since that time we've got the michigan court of appeals the attorney general's office in the district court inventing reasons that's an inventing different well the claim was presented to the mission court of appeals the st time or the courts the st time mr parks had an opportunity before direct appeal bats and came up on direct appeal with an objection and no record there was no colloquy there was no race neutral explanation in the supreme court said not enough and they sent it back they didn't say oh well one is an engineer and we can think of a lot of reasons why these people might have good reasons why these four african americans might have been excused they sent it back and said these are the steps conduct of the inquiry and that's what mr parks asked for  direct review before this case reached its merits determination on appeal and he didn't get it that was an unreasonable application of federal law we pierce at the deference and now there is a fact question that needs to be resolved in it is not mr parks fault that we're