attorney knowingly introduced an expert opinion that he was more likely to commit criminal acts of violence in the future because he is black this is evidence and courage the sentencing to sentencing jury to make it critical future dangerousness decision which was a prerequisite for a death sentence and the central disputed issue at sentencing based not on the individual facts and circumstances of mr box crime or his life he testified that he did believe that mr buck was likely to commit future crimes of violence he said that at the prosecutor's questioning that mr brock was on the low and of the continuum but that he could not say that mr buck was not likely to commit criminal acts of violence but mr buck was unquestionably more likely than not that he would yes he was on the low and the can the spectrum in terms of the risk of violence but not apply it publicly declared that it would waive its procedural defenses and allow new sentencing hearings and six capital cases including mr box that involved the same experts ra as criminal violence opinion texas conceded error and five cases and then reversed course and mr buck's case alone as a result mr brock is the only texas prisoner to face execution pursu acknowledged is compromised by racial bias that undermines confidence in the criminal justice system there's a tension in your your briefing over what you're really arguing for in the shouldn't have to make a choice don't you because if we look focus on the merits and rule in your favor when we don't get to say too much about the threshold for a certificate of appeal ability well if we focus on the certificate of appeal was required to determine whether or not the district court decision with respect to both the constitutional question and the procedural question would be debatable among tourists right right so is that would you want to say that because the merits are debatable will because he's right and similarly we did the same thing oddly enough in one of the cases at issue here we did the same thing and trevino yes he should have gotten a certificate of appeal ability because he has the merits on his side that's essentially what you would want us to do yes i mean that does leave on the table maybe this is what the chief justice was saying and this question of whether the fifth circuit is just using the wrong approach in the wrong standards for this or difficult of appeal ability well in this case the fifth circuit analysis completely ignored the heart of the case and in making it such a case of appeal ability determination right the center of mr b claim has always been the introduction of racial discrimination that undermines the confidence in not only his own death sentence but the integrity of the courts as well and i think the debate ability of the district court's decision the fifth circuit doesn't engage at all around the central question here about the critical role of race in mr buck case in his state and in the integrity of the courts and ultimately in what texas did in terms of acknowledging the absence of finality in this case we go back to that are you satisfied if we say they used the wrong standard for denying the coa or will you only be set a strong if we say you will i think that th certificate of appeal ability because all of the explanations and justifications that were presented by texas and the district court are incorrect and unsustainable all right now let's start with the coal issue trevino retroactive if we recognize it as an exceptional reason to forgive a procedural before and then second there is a circuit split on this question and you recognize that in your brief you have the third circuit using a three part test that says martinez and should be no wonder certain circumstances can be a reason to find exceptional circumstance the ninth circuit has a six or seven or eight part test they never make it simple and the fifth says never where do you stand on all of these tests what's your question well with respect to retroactivity t governed new rules of constitutional law that apply at the trial stage this is just in a rule that doesn't have the circumstance where if the sixty b was properly granted mr brock would be back in the same exact position as were the petitioners in martinez and trevino he would be arguing about seeking cause to excuse default of his trial counsel ineffectiveness claim in a first petition for haiti as corpus relief this is a very very unusual case and what occurred at the penalty phase of this trial is indefensible  but what concerns me is what the implications of your argument would be for all of the other prisoners who let's say they're not even capital cases but they have they want now to raise some kind of in  would prevent a ruling in your favor in this case from opening the door to the litigation of all of those issues so that those martinis and trevino would effectively be retroactive well i think there  are three factors i think that makes mr bucks case unique first and foremost it involves an expressed appeal to racial bias that not only undermine the integrity of his own death sentence it undermine the integrity of the court second diligence here mr buck has consistently and unrelentingly you know pursued relief on his claims so i think that those factors make mr brooks case unique from the vast majority  and that makes mr buck unique from the vast majority of non capital or other prisoners who are going to bring these cases to to the federal so you know the the answer to justice alito is that in our opinion we should say our interpretation of rule sixty be it in case it doesn't apply unless it's a capital case and sixty doesn't draw that distinction no i think in terms of the question of the extraordinariness factors i think th court can and should look to those that we've identified in our brief first is there a risk of injustice to the petitioner here we unquestionably have that we're facing an execution for a risk of injustice if it was a sentence for ten years that's areas where there are more the risk of injustice and impairing the integrity of the judicial system more broadly the state i guess the same answer there if he's sentenced to forty years you know that impairs the integrity of the system then i mean i know that obviously death is different right but it's hard to factor in why it's different in the context of interpret in particular rules you know i would say additionally there we're here your honor particularly unique to mr buck's cases where we have the state acknowledging that it has no significant finality interest in mr buck's death sentence and when you add to that the fact that mr buck's claim of ineffective assistance of counsel is  but if we rely on that too much would this discourage prosecutors from offering discretionary concessions you know this is a unique circumstance i think that i don't believe it would discourage prosecutors because texas doesn't actually disagree with and cannot disagree with the fundamental problem in this case which is that it is compromised by racial bias that undermines the integrity  undermined by the to the extent it is a unique case it really doesn't provide a basis for us to say anything at all about how the fifth circuit approaches certificates of the people booty as it it's a unique case so this would be an odd platform to issue general rules but in the brief you say well the fifth circuit grants these in a very small percentage of cases the other circuits are much higher but if it is so unique i don't know how we can articulate general rules well it's certainly an extraordinary case and i think that because it is so extraordinary and because the lower courts failed to you know acknowledge that and reach that conclusion that this case  sort of underscores the deep need for guidance to the lower courts on the evaluation and assessment and what factor should be considered in determining when sixty b is there is not appropriate was it wrong was it wrong for the court of appeals to conduct the merits inquiry in this case when they want to considerable lengths in trying to determine whether or not you know the claims were valid was an error should they have just said you know the t err in looking at it more closely certainly this court has made clear time and again you know a analysis is the threshold review of the merits so should our decision be just that they erred in looking at the merits they should have just issued a certificate of appeal ability and send it back that's not what you want no no it's not i again i believe that this court because we do have the fifth circuit and the district court going past the threshold analysis and speaking substantively to the merits court can and should explain that those reasons that have been offered by those courts are incorrect and under the standard if this court should issue if the district court's decision was debatable or wrong but it seems to me to well be issue you don't want to say that you want to say that there's been a constitutional violation in this case and the court of appeals was wrong in determining that there was i would like for this court to say that there was a constitutional violation i thought that your ensue would be that you know do you think that this is so such an extraordinary case and that the fifth circuit got this so wrong that it's the best proof that there is that the court is is approaching the c in the wrong way if they reach the wrong result in this case it's because they're just not understanding what the c e o inquiry is all about right i mean i agree absolutely i mean this the fact that this court found was unable to find these facts and circumstances debatable shows the fact that the fifth circuit is applying the standard incorrectly for sure and it goes also to the need for guidance right to the fifth circuit not only on this point but again on the sixty b point because there really is a substantial lack of information available to the lower courts with respect to the evaluation of what is or is not extraordinary so what is the test used should we say the fifth circuit should apply in considering whether the issue certificates do  anything to add to the statutory language you know i don't think i don't have additional language i think this court has made quite clear that it's a threshold application what this case demonstrates is that the fifth circuit has not been and as this court has noted in previous decisions that the fifth circuit has not scrupulously adhered to the application of the way standard and the data that we provided to this court so it amplifies and demonstrates that fact so i think that that would show future dangerousness that one didn't have to rest exclusively on this bizarre expert testimony isn't that correct there is certainly the texas certainly presented evidence of future dangerousness in this case  i think that however the heart of those that evidence was sort of the facts and circumstances of the crime mr brooks lack of remorse immediately after he was arrested for the instant crime and the domestic violence incidents in the prior offenses this court has recognized that aggravated crimes like this like exactly like the kind we're talking about here can and do trigger a racialized fear of violence that can  yield arbitrary death sentencing decisions that was your holding internal versus murray i'm so the fact that we do face a case that does have very aggravated facts sort of compounds the risk of prejudice to mr buck and what we have here is a circumstance where not only do the terrible facts of the crime trigger that real risk of an arbitrary death sentence and decision you have the experts stepping in and compounding that risk and putting it putting an respect to the question in your trial but how much was it a part of the actual report because that's what the jury asked for and they asked her to things could they consider life without paro so they were obviously considering mercy somebody was correct i don't know if all of them but someone wanted to talk about it that's what they told the judge can we talk about life without life without tell me what how that changes the calculus those two things in any way sure so first the issue of life without parole was negotiated in the trial proceedings that was absolutely were not given any information about the feasibility of parole in this case but as your honor correctly observing what they were killed then he would be eligible for parole after what was it forty here no they were not and that was true no they were not and they were not given information in fact the trial prosecutor fought very hard to make sure that this jury did not receive the information about parole eligibility it was one of the issues that she was very concerned about making sure was redacted from dr piano's report because he and his report had a reference to have them asking for the psychiatric report which contains a sentence that says that mr brock is in fact more likely to commit criminal acts of violence because he's black that evidence of course once you have that report after the jury had heard it on direct and cross examination from the witness stand so ultimately we have a situation where the jury is literally making the decision about mr box life and death making the future dangerousness vision while they have this imprint in their hand and we also know this is a jury that was not able to make a quick decision on sentence you know notwithstanding texas claims that its case and in future dangerousness was overwhelming this jury didn't make a quick decision as you would have expected to see if the case was in fact overwhelming this jury was out for two days on the question that it was presented with and so what this shows is at during this pivotal time when it was obviously struggling to determine an answer to the question of whether or not mr buck was or was not likely danger it had in its hands a piece of paper that validated evidence that came from both sides of the aisle in this case ri you know what the jury was in this case it's not in the record your honor our research that we have the only thing we've been able to confirm on our own is that ten of the jurors were white i don't know what the race of the other two and it's certainly not in the record  i don't think it matters what the race of the jury is this is evidence of an explicit appeal to racial bias this is the kind of evidence that courts for over one hundred years have said once it is introduced even just  it's impossible to unring the bell and that's because this evidence in this case spoke to the pivotal question of whether or not mr park would be executed in the future dangerousness question in texas was particularly as it straight into the evidence in this case as i said texas presented three categories of evidence the crime the lack of remorse and the prior domestic violence but nothing that texas presented spoke to the question of whether or not mr buck was likely to commit criminal acts of violence if he was in fact sentenced to life in prison they just didn't present any evidence on that subject mr buck on the other hand present dr lawrence and dr lawrence spoke exclude you know powerfully to the question of whether mr buck was likely to commit criminal acts of violence if he were in prison which was the only alternative to a death sentence that the jury was presented with dr la killed people used so that evidence of his dangerousness was limited to those with whom he had a romantic relationship but he killed at least two people with whom he didn't have a he killed two people with whom he did not have a romantic relationship isn't that right you know he killed stepsister he you know she survived i'm sorry while she shot him yes exactly and this is all clearly in the context absolutely he did there's no question about the fact that he shot his sis that mr buck has a positive institutional adjustment history that when he was previously incarcerated he was held in minimum security and that all of the crimes of violence that took place in the texas department of corrections in the prior year were committed by people who were gang involved and there was no gang involvement here so dr lawrence his testimony highlight the shortcomings of the limitations in texas case for future dangerousness right they say here we do have evidence that that goes beyond what texas has presented and what fills the gap for texas the only evidence that texas has that says he will be dangerous in that context is dr key evidence that he has an immu characteristics which establishes that he will be dangerous no matter where he is and i would like to reserve the remainder of my time for about thank you counsel mr keller thank you mr chief justice samir please the court we are here today defending the death sentence because petitioner murdered a mother in front of her children he put a gun to the chest of his stepsister and shot her or any murdered another man you have facts i swim the facts in the other some gun cases are similarly minas the ones where the the state determined that neither nonetheless that there was a risk that they would be sentenced to death because of their race and i don't understand i understand the procedural differences in this case but i don't understand why that ultimate conclusion doesn't apply here as well in other words regardless of whether the evidence was admitted by the prosecution or by the defense it would seem to me that the same concern would be present if there's a key distinction between when a government a prosecuting authority is introducing evidence of racist dangerousness that would be the equivalent of using rac a prosecutor did not go beyond the scope of direct the prosecutor solve the expert report for the first time that day and it just reviewed over the one shower this is a j one fifty four a and one sixty five a day in the prosecutor's walking through all the various factors the key hano had considered in his testimony but it did not go beyond what was a listen in on direct and to highlight an example in contrast the all the case in which we did confess whe they're the prosecutor mentioned race four times in a closing said quote and i went down all the indicators they didn't want to talk about those indicators but i did and i forced the issue he's male he's a spani petition is own counsel introduces how abysmal his rep are representation was i don't know why it could make a difference that that the petitioners counsel to introduce evidence if the evidence everybody believes should not have not have come in and and what what counsel would put that kind of evidence before a but competent counsel would put the evidence before a jury and we are not defending defense counsel's actions but the nature of that claim is a sixth amendment ineffective assistance claim that the court also reviews for prejudice in the context of a prosecutor offering a testimony and using it as an aggravator there would be an equal protection and due process violation and the nature of the evidence coming in in that instance would be significantly highly prejudicial in the state is putting its imprimatur behind it and using it as an aggravator in why does that matter who uses race in paths and challenges we don't hear if the person exercising a racial challenge is the prosecutor or the defense attorney we say neither should use race in a negative way against a defendant so why is it different here why is it ok not ok for the prosecutor to introduce the greater likelihood of a person being dangerous on the basis of race or not ok for the prosecutor but it's less bad for the defense attorney agree with death death does not impose correct correct so if one is it a reasonable possibility that one juror even the one who sent the note that says is it possible to do parole life without parole could have been convinced to exercise mercy if grace wasn't used can you answer that question absolutely not when in at least one of the south i know cases a man poured gasoline on a woman and watched her die we had a nation that was mortified shocked and completely traumatized by watching a pilot burn to death so why is that crime any less meus than this one here  executing a mother when she was on her knees in front of her children with her daughter jumping on i don't say i should not but why is that the meus pnas so much greater that no jury could the standard in the strickland second prong prejudice analysis is whether there's a substantial likelihood of a different outcome as one versus belmonte as noted the state doesn't have to rule out a reasonable  deliberated over the course of two days but this is only for three hours and thirteen minutes which is a record one thousand eight hundred in one thousand one thousand on the first day the jury asked for the police reports in the psychology reports on the second day the jury asked to see the crime scene video this is j two ten a record fifty nine fifty six and record sixty three thirty three so insofar as the court were to look at the circumstances of the jury's deliberations i'm not sure that that is necessary for the court to do but the inference to be drawn is in those final ninety five minutes before the jury returned a verdict of future dangerousness it was looking at the crime scene video i'm not sure how the quickness of the determination helps you at all and i mean one response would be well they had this evidence that he by virtue of his race likely to be dangerous so they didn't spend that much time on it to the end the argument here is that under these circumstances when they were focused on the crime scene video that that would have been what the jury was no we're not hearing the jury room we do know that the prosecutor asked the expert witness is it correct that the race factor black increases the future dangerousness for various complicated reasons and he says yes seems mean you can't prove it that that was the key factor but it seems like it could have been a substantial factor and texas in six cases says this is totally wrong and now in this  case you're taking the opposite position and i have to admit like what the chief justice seemed i don't understand the reason it seems to me it proves the arbitrariness of what's going on but regardless the issue here is is there some good reason why this person shouldn't have been able to reopen his case i mean that's the question but the reason i mean after all we later decided these other cases martin circumstances to seem to fit martine is pretty much like a glove the state certainly doesn't have a strong interest any more than in the other cases or at least not obvious to me some kind of rel so he has a case where martinez seems to apply he couldn't he was he was diligent diligent not much not too much reliance on the other side and seems to me his criteria for hearing the issue though is that why doesn't that make it extraordinary enough to reopen under rules sixty b but it seems to me the question in the case for two reasons and both  the first is that the only change circumstance in this case since two thousand and six is the martinez intervening a change in the law and the second is there was a lack of diligence in pursuing this claim and ineffective assistance claim was raised on federal habeas in the district court way was not asked for on that claim and the ineffective assistance claim also was not even raised in the first sixty b n and all this took place after this court decided martina's and trevino in the context of the second sixty b motion but hear you listed a whole bunch of things in which you could have done did those take place or not after we decided our case if some of them did which the federal habeas petition asking for a c e o way in the first given that coleman was still on the books you would have said it would be have been improper for him to ask for the relief that you are now suggesting that he should have asked for at least it would have been futile with comments done on the box or the same would have been said under existing the court said the error is commonplace people lawyers misjudge time limits all the time but one thing we know about this error is that it's not commonplace even the two people who call the caetano as defense witnesses never themselves raise race as a cause as a reason for future dangerousness only this attorney who's been disciplined repeatedly for his mouthpieces and representing clients who one newspaper said if you want to ensure a death penalty hire this lawyer  in that situation isn't this that where case that concern was talked about this is certainly an unusual case and the standard for extraordinary circumstances in this posture though is not simply would an a judge in the first instance conclude that but the district court abuse its discretion in declining to find extraordinary circumstances when the sols versus crosby is on the books of those birth my understood so to my understanding involved a change in the e statute of limitations is that right correct me soon as i say those words i'm confused so i mean there are all kinds of statutes of limitations and this was one of them what the court said he didn't he didn't pursue the change diligently  and besides it wasn't that big a deal and not every interpretation of federal statute setting he b s requirements provides cause for reopening cases long since final and the change was not extraordinary and it was because in part of petitioners lack of diligence in pursuing its they've a whole list of reasons there and as i read those reasons i don't think one of them applies here so which one applies here in so far as the extraordinary circumstances and analysis under sixty vs being performed i believe the fish circuit was correct in that it would have to be an extraordinary circumstance justifying relief from the judgment and when the facts of this case obviously have existed for over twenty years there would be nothing new about raising that claim in  second rule sixty motion to reopen the judgment and so in that sense this is even further than gonzales versus crosby where that was just a sixty motion this is the second sixty motion i understand your arguments on the merits but do they apply equally to the certificate of appeal ability i mean you argue that you should prevail on the merits but the question on a certificate of appeal ability is whether there has been any substantial showing of denial of a constitutional  right assuming you haven't already seen the analysis on the merits and you're looking at this question for the first time before going through this analysis wouldn't it seem pretty straightforward to say ok maybe he's right maybe he's wrong but at least he's made a substantial showing let's give him a certificate of appeal ability of them and go through the normal procedures on the merits it's clearly a harder standard for us under the difficult of a bill appeal ability standard but even then you'd be asking would reasonable jurist debate whether the district court abused its discretion in declining to find extraordinary circumstances well that gets tougher and tougher it when you're talking about reasonable jurists debate ok that's a that's a very low threshold but when you say reasonable jurist debate whether there's been an abus discretion i mean abuse of discretion gives or a broad range to the district court and now you're asking well is there a reasonable person out there who could debate that you want to have deferred to that exercise of discretion it seems to me yes it's a different standard but it's quite a different standard and and the broader question here is whether the fifth circuit applies the wrong standard on the certificate of appeal ability and it seems to me that if you're going to say particularly when you were reviewing an abus discretion standard that you're going to be able to look at and say no no there's nothing there's nothing substantial here and i think this would be a difficult case to infer anything widespread from the fifth circuit practice just to put some context into the substantial process that was allowed here petitioner filed a seventy page opening brief the state filed a thirty seven page response brief and petition filed to move to file a thirty five page reply brief and so this was also the third time that the fifth circuit had seen this case yeah i know that i guess my question kind of cuts the other way i'm sorry they go through yes you make the point there was a substantial amount of process there long consideration there was a lot of briefing i would have thought the purpose of the certificate of appeal building would be to make the decision to move forward without all that elaborate process well and the fifth circuit on occasion hears oral argument and considering whether to grant a c e o in the capital posher in so far as the court would provide  in capital cases a c e o is denied in sixty percent of fifth circuit cases as compared to six percent of eleventh circuit cases to roughly similar circuits where c e o is are denied in capital cases ten times more in the fifth circuit i mean it doesn't just that one of these two circuits is doing something wrong and the court has said that the c e o way should serve a gatekeeping function the court is also noted that death is different and at the same time the fifth circuit is providing substantial process now in so far though as this court were to if it were going to conclude in this case that a c e o a should have issued it any such decision i think would be limited to the unique facts of this case and i don't think there's anything that could be drawn about the fifth circuits wider practice in denying or granting c e o ways particularly the capital posture when substantial process is being afforded this is not a situation where the fifth circuit is simply ignoring these cases and ignoring these claims quite the opposite so your suggestion that they deny more because they've taken a more searching look at the merits of the other circuits and it i think it simply ignoring these claims and even here but this is the hope or it really they're not supposed to be doing what you would do when you decide an appeal i mean the actually don't have jurisdiction to decide the appeal i mean they're supposed state court judges two of their colleagues on the fifth circuit two justices of this court have said or found mr brooks case debatable so it's the standard it's debatable but there they don't pause and say you know people are have some basis for an argument here that's not frivolous this is a serious question it  circuit took these arguments seriously and this is our response and that's not the issue they're supposed to decide whether to grant the cole or not on whether the questions are serious or not debatable not decide the merits or not they can appear a fine line in some situations but how do you justify saying that this is not to be here the issue would be could reasonable jurist abate whether the district court abused its discretion in finding extraordinary circumstances and so while the reasonable jurist standard is lower that's balanced though against the more deferential abuse of discretion standard and the heightened extraordinary circumstances standard that this court has noted will rarely be met in the heaviest context in our brief we present a few examples of courts finding extraordinary circumstances that we want counsel wholly abandons a petition or a prison in the other five cases in which the state confessed err what they're we would admit that since the prosecution was the one there was elicited in the race based testimony that that would go to eight a due process and equal protection but and that that makes it more prejudicial that's your basic theory both points but that's a this thing because i don't understand i guess if there's both points tell me what the other point is because i guess i just don't understand that point that it seems more prejudicial when the defense attorney uses it i mean prosecution you know the jury sitting there and it realizes that the prosecution has an interesting conflict in the person and then getting a sentence that the prosecution wants so everything is discounted a little bit but when your own when the defendant's own lawyer introduces this the jury is going to say well it must be true even the defendant's lawyer thinks that this is true so you know who i might argue with that it seems wildly more prejudicial to me when the defen favorable to petitioner as petitioners conceded and so in that circumstance the prejudice would not be nearly as great as when the state is injecting race into a proceeding i didn't think that your primary argument had to do with relative prejudice of having it done by the prosecutor and defense attorney i thought your argument was that the state of texas feels a certain feels a special responsibility when one of its employees engages in this misconduct and when the  that the evidence is introduced by the defendant's attorney it's an ineffective assistance of counsel question and it has to be adjudicated under the strict contest that's absolutely correct and then when you look at the aggravating evidence of executing a mother in front of her children laughing about it and saying that the mother quote got what she deserved unquote and we put in evidence from an ex girlfriend this is a j one twenty seven a of repeatedly beating her and threatening her with a gun all of those go to whether there would in fact be prejudice under the sixth amendment in effect of yes and the legal question here right is whether this ineffective assistance of counsel claim which has never been heard by any court is a strong one and a strong one including the n f l of assistance here is likely to be prejudicial which it seems as though it's it's it's more it's far more likely to be prejudicial when the defense counsel doesn't do justice when the state is the one injecting race into a proceeding that's using it as an aggravator and if the people expect the state to use whatever aggravators it has at hand now people don't expect the state to do something that's i proper is this but but people understand that not everything that the prosecution says about a defendant you know the people that jurors should should think about those claims seriously because the prosecution has interests of its own but the defense counsel's interests are supposed to be with the defendant i'm just repeating myself of the defense counsel doesn't i mean you know who is the jury to complain what this court i don't believe has ever recognized a situation in which a defense counsel's act could give rise to structural error per se prejudice and any such rule i believe would invite gamesmanship of course the prejudice and else can still be done but to say that it would be personally prejudicial i think it would have to be balanced against the aggravating evidence and in the context of he had not testifying helpfully to petitioner that there would be an unlikely event of it being a future danger what is the relationship between the ruling on prejudice with respect to ineffective assistance and the sixty b analysis i mean do you agree that if we disagree with your submission on prejudice under strickland that  analysis kind of falls apart i believe the underlying claim of the merits would be stronger and it would be a lot more extraordinary under sixty it is a factor that could be considered in doing the extraordinary circumstances analysis because if there were extraordinary circumstances that were going to justify a relief from the judgment that would be a factor in the totality of the circumstances the court would be that could consider in doing that analysis effort to eradicate racial prejudice from our criminal justice system that commitment as urgent today as at any time in our nation's history buck case requires meaningful federal were view of his claim that his trial counsel knowingly introduced an expert opinion that he was more likely to commit criminal acts of violence in the future i certificate of appeal ability should certainly issue but with respect to texas his arguments i want to begin by making clear that first of all this court in georgia versus mccollum did make clear as i think justice sotomayor i noted that the equal protection concerns that are implicated by the introduction of race into the criminal justice system absolutely are triggered by defense counsel's conduct and certainly that was a situation where defense counsel exercised peremptory challenges based on race and in that circumstance that was actually an exercise intrade decision to introduce race this is certainly worse and more aggravating for mr buck i would also like to just be clear that the prosecution's reliance on dr key testimony here was real this wasn't a circumstance where the prosecutor was required to follow up on dr king hollows opinion and reiterated on cross examination and then go further and argue in closing that the jury should rely on dr  find mr buck likely to commit criminal acts of violence and further argue that the jury should disregard the aspects of dr key harlow's opinion that conflicted with a finding of future dangerousness when case the defense a listed doctor he handles race as criminal violence opinion on direct examination just as here but the difference is in the grave case the prosecutor did not reiterated on direct examination and and then in closing argue that the jury should disregard dr key hollow's opinion the prosecutor here absolutely capitalized on trial counsel's error there is just no question about that they made a choice that you know they could have gone the grapes route but this prosecutor chose to go through the door that was opened by trial counsel and rely on dr key house races criminal violence opinion counsel for texas also notes that the last note that the jury sent out was a request to review the crime scene video which is absolutely true but it means that the last to know that this jury looked at the two things that they asked for right was the reply expert's report so we now have the race and then we have the crime this is exactly the circumstance that with this court addressed in turner right you have the facts of the crime that trigger this racialized fear of violence and raise the real risk of an arbitrary death sentence decision and then you have the report which compounds that risk because it gives a defense expert scientific in premature to that pertinacious group a stereotype so that further further evidence of prejudice to mr buck last i would just be clear that when mr buck litigated his first sixty b motion cullman as the texas has acknowledged stood as an unqualified bar there was no opportunity before martinez was announced for him to argue thank you thank you counsel the case was submitted