often than i remember robert marc was convicted twenty nine years ago of murdering a witnessed the rob to his robbery manning tyvon show he threatened detectives he threatened the prosecutor  point we'd have to decide whether or not to seek the death penalty it's a difficult decision in these cases it's often tempered by the the realities of trying a case again thirty years later time the objection is made and roger says i'm not talking about yesterday or the day before i'm talking about this last panel it was just brought in here and the jurors that were struck by the commonwealth regularly from that last i think i'm not sure if trying to remember whether or how much of that particular decision was necessary to the decision that was ultimately made i think the court found that the swain objection counted as  that's the the larger question and i think that the court you know is obviously bound by that i think the subsidiary questions of maybe of which particular objections  were who were removed the first day so i made both those are the first two days a first two days although i think the first day it was very usual worst for nobody was so in any event i did make the argument everyone before like to discuss that very briefly as this court knows before baths in state court as well as federal court a claim of jury discrimination could only be made out of a showing of systematic discrimination at swain that's henderson state court not individual three strikes now the district court concluded when the prosecutor said he was not engaging in systematic discrimination that was meaningful because it showed he understood the law to mean he could engage an individual this rumination but the premise is wrong there because the objection that defense counsel actually raised was a claim of systematic discrimination and that's what the prosecutor was denying though i know last time as we were just discussing this court found that it counted a swing objection counted as if that's an objection but i'm talking about something different i'm talking about the words that were actually used the words that that to which the prosecutor was responding and i'll quote it that mr rogers said this is i think appendix six six eight sixty six sixty nine he asked for records to be preserved quote to preserve an opportunity for me to challenge that the commonwealth may in fact be excluding all blacks who came before this panel as of this afternoon your honor he is striking all blacks and mr carpenter said oh how awful i'll get to that in a minute  and the next page mr rogers says he's striking blacks not saying he did it yesterday as of this afternoon he's striking blacks later a couple pages later mr carpenter says it's obviously not systematic discrimination when you've got three members out of the nine who are the same race as the defendant and his attorney now the words that were used as the objection were an objection to systematic discrimination  particular strike so when the prosecutor denied systematic discrimination he wasn't somehow tipping his hand about isn't intent to discriminate against individuals he was responding to that so the accusation that was being made no i am not counted for our purposes as a batson objection but the point i'm making is something different which is that the at the objection did not single out any particular perfect peremptory strike and that mr carpenter reaction saying i am not systematically excluding blacks from the jury was actually an appropriate response to the accusation that was that it was actually me but it that it's possible isn't it that mr rogers subject of debate and discussion for several years now and some language is sarcastic but as i described in my brief that was sort of typical of both sides but that in this trial but the moment the more important point is this if he's admitting to something by saying something sarcastic oh how awful what is he admitting to at most he's admitting to that the accusation again this afternoon he has struck for blacks and he's making that it mission if that's what it was in the context of defense counsel's concession that he wasn't striking blacks the day before but you know given what was said somewhat in this is another issue in terms of credibility that's clearly an interpretation you get from this from this record on first he say i think a translation of what he's saying is you know to be sarcastic ok i'm guilty of selecting a multi racial jury and my last four strikes happened to be for collectors he's saying that's not a significant fact now you can look it's not significant either under swain it's clearly not significant under swain and i think that's the point you're on his getting to it was but i think in addition it's  that i'm saying it could be but what he's saying is it's not significant and the same argument could be made now under patent if i'm a prosecutor and i've selected a so far multi racial jury and my last four three happened to be against african americans i could say that's not significant and it would be the same so we're not in other words maybe before i was imprecise it's not so much that denying only a systematic claim of discrimination what he's doing when just with respect to the oh how awful comment you saying saying with respect to those four jurors your accusation whatever it is is not significant and how do you how do you read the district court's interpretation of that particular comma i think the district court was more concerned generally with the state of law before baths and the thinking was that before bats  was if the prosecutor wanted to discriminate he could do so thinking that he only had to select say one black juror in order to avoid any accusation of systematic discrimination and i think that the district court was focusing on that and was sort of using that as an inference that mr carpenter thought he could discriminate and was essentially by saying oh how awful saying sort of what your honor was suggesting that he was saying only that systematic discrimination is not something he had done but it doesn't say that as i was saying before that the oh how awful comment simply means it's not significant under whatever legal theory but b if we're really going to look at priebatsch in law i think in fact the the better inference the commonsense inference is the opposite because if she wanted to be sure that she had seated one black sure so that i think in hardcastle was the basis of the pre pay ass and argument but i'm saying in this case even  interpret it obviously the court could do that i think as i said given the circumstances of of the jurors that he actually did except i don't think that that's strong enough evidence at this point to justify invalidating the conviction all these years later so in other words if you look at other kinds of evidence and decided that they were not sufficiently probative i think sending it back  now has to do with facts more than law but two things are there is obviously an intersection of the two and i'll talk about a little bit more but second of all the standard of review which i think is really sort of the crux of your honor question there is a lesser standard of deference applied to pass in findings made years after the trial by a different judge and i say that for the following reasons at all stages or just s i third stage i would because the third stage is the thing actually stage that's the stage that we would usually deal with a clearly erroneous standard and my point is is that that ultimate question of whether or not the claimants has proven by preponderance of the evidence that it scrim anation occurred that would usually be subject to a clearly clearly erroneous review i think it's a lesser standard of review i've quoted in my brief that the seven circuits decision in holder versus wellborn which says it's to novo in a situation like this but whatever it is it's lesser and the reason i say that it is is the following first of all this court along with the supreme court has recognized generally the potential for error and in a case like this if you look at a boojum all  either is still before the court or was very recently observed second of all the court has specifically recognized that less differences do and for this i i direct the court's attention to riley versus taylor  bank decision the plurality and that which in which the court said when reviewing it and hearing in state court by a different judge seven years after the trial we declined to give these findings deference such deference is ordinarily base at least in part on the original trial court's ability to make contemporaneous assessments and and third there's nothing contrary from the supreme court the supreme court has never even faced a bats in a hearing like this t i don't think much but over found that mr carpenter didn't was lying when he said he didn't remember i mean mr judge but over found mr carter was actually being candid i think with respect to that so what we're left with is a record comparing jurors and mr carpenter sort of speculation as to the various factors he use that's exactly the kind of assessment that this court can make i don't ever any reviewing court can make just as well as as the district court was with you may want to finish up and if not i'd like to ask you about some of the comparisons please go it particularly florence williams and lisa and  where there's the error there in that evaluation i'm glad you're on a raise lisa patton because as i was preparing for this argument i saw something i might maybe if you have mentioned it before  record that was that would support that although he had a general feeling that that was something he was concerned about with mr rogers in particular as a defense counsel but in fact there is something in the record that does miss patton remember her she had two uncles who were police officers and at one point she even she said she might be tempted to believe police officers testimony more than labor mrs which obviously would make it her a favorable juror there for a prosecutor  it's the defense who rehabilitates or mr rogers works very hard to say now but you wouldn't you would obviously be be very careful about that you would obviously follow the instructions you would jurors were just as worthy of belief as police witnesses and she agrees with them the defense is the one that rehabilitates her indicating that the defense saw something in her that kind of what you well i agree with you that it's not you know it what you call a kooky thing it's very difficult at this point to be there be specific but that's why you know judge edwards and d c circuit called this entire kind of comparison thing farcical mr mr carpenter said that while they were both young since miss coyote heads and several years out of the country she he thought that was a sign of maturity in this pen was also from the general neighborhood of the if the jury selection is happening right in front of you i think there's a lot more leeway for the trial court to say i don't believe you you know if women problem is in this endeavor in this going to is that the argument that you're making based upon or didn't have a lot of didn't spend a lot of time reviewing you know these hundreds of pages if you look at the record that the hearing before judge the discussion of each juror was really grief and especially the beginning of that hearing i was having trouble even being allowed to ask mr carpenter to speculate at all by the end of the hearing i was given a little bit more leeway but the court was not real patient with the whole thing because thinking that we can do that just as well as  he can if if you doesn't remember which i think there's a point to that but on the other hand it means that if mr carpenter didn't necessarily see it in those few seconds that he was testifying about that particular juror i don't think it justifies throwing out the defending them because a lot of them don't make any sense but i think any lawyer who has done a lot of jury trials will tell you that some of their peremptory challenge rules don't make a lot of sense i think with respect to mr carpe catholic schools in particular one thing is that mr carpenter trained as a minister it's it it might that might explain why it was important to him i can't tell you the one who didn't pick me that didn't make him the less likely to with ms ms williams is that the defense council asked her no questions at all nothing which again suggests that he saw something too now can i be sure back thirty years later obviously not but this couple of ways he may have seen something possible but the question is ultimately that ultimately and i'll sit down i think we can points to objective race neutral reasons in the record for each one of these strikes we can point to objective race neutral distinctions between the jurors that are being compared each one of the comparisons used by the district court not just one i mean many differences between the jurors who are being compared and the question is ok with that kind of lack of re reliability with that kind of guesswork which we have to do because it's thirty years later is does that justify overturning this conviction where there's no doubt there's really no and to analyze everything with due regard for the fact that mr carpenter's memory had faded and with due regard for the fact that time had passed this court said the last time we were here that there are  this court takes that into consideration and judge but those are clearly took that into consideration and like you said judge mickey he did have the opportunity to listen to mr carpenter over two days and and i  because i would have complained about him allowing the commonwealth as much leeway as they did to speculate as to what the reasons might have it for the strikes but i wouldn't have questioned judge but of his patients i but so i think that just that though they did what district courts do all the time district courts are fact finders appellate courts review those facts on and the the standard is clear are and i think when  struggle just went through cases that said it's not so much a clear earth standard what you didn't hear were any third circuit cases because the law in this circuit is very clear in wilson an old  hardcastle when it came back up albeit in a non presidential opinion it rejected the idea that there was some standard other than clear error and that's consistent with the roles of  and and i think ultimately if you send it back because you realize that's the appropriate way that that fact findings get made by the sides the the step three determination that five jurors were selected as a  and were his fact findings have support on the record and there's no question that there is support on the record first fact find it's such a bit of a created this very extensive chart that looked at each juror that had multiple factors of all the questions and concerns and the characteristics of the jurors and use that as the basis of his comparisons so but it wasn't just one thing and that's important it was the statistics in there briefing the commonwealth tries to downplay the statistics but the statistics here are stark thirteen and a fifteen strikes and eighty twenty nine jersey mr carpenter had the opportunity to accept and strike so we can look both at the strike rates and the acceptance rate so we can put them in context we we don't just have the simple and in this in this difficult session where mr carpenter doesn't remember and so he talks about the factors he usually uses in jury selection he looks at all those factors at how they were appl and how they were applied where they applied in a racially disparate way and he finds that as to six there at least appears to be racial disparities in the way factors such as age and children and homeowners take into account all of the other factors that he sees of of a juror who's who appears to be everything that mr carpenter says that he likes and your older stable home ownership employed roots in the community and he can weigh that against that kind of how do you how do you view logan i think it was logan vs vs north philadelphia and i always see roosevelt boulevard separating him from from north philadelphia but it's i agree it's open to the discussion with that eye on that that's why he looks at the totality of the circumstances and he makes the comparisons the i think when you look at what judge to go vick did in his journey comparisons he was extremely careful and cautious right it was only when the jurors had had a number of similarities that he would consider them  comparative jurors and if they didn't have an offer or if they were if they were picked at a different stage in the process he would not consider them similar and and and so he was careful far more careful i think than if you look at what the supreme court didn't said in miller l versus dred case they based their comparisons based on one factor of the trial and and i think it was just a stevens who wrote the the majority opinion but the majority opinion says we recognize that our comparative jurists have some similarities and some differences but they weighed that and miller was another case is a case where supreme court twenty years after the trial and eighteen years of the the hearing where the prosecutor testified was help three years or two years after the trial so seventeen or eighteen years after the trial the supreme court did what judge   making those comparisons that he did he ever failed to tie them all together for each individual that is was to compartmentalize or or i don't say zero is mostly i think that he looked at the jurors as a whole for each one when you when you read his ultimate conclusion he looks at the characteristics of the juror the reasons that might have been lay if there were any reasons given like with lawrence williams that your honor mentioned with mr dahl genus even reading through the juror notes he couldn't come up there's nothing in in her examination that's that's remarkable at all that would explain why he would  strike another thing i was reading directly yesterday and another thing that struck me that's not emphasized so much in the briefs is that the court in trekkie says that they're very suspicious of prosecutors who don't ask questions before they strike who if they have an area of concern they expect prosecutors will ask questions about the area of concern much the way mr rogers did about lisa patton i'll come to that in a minute and here there were several strikes that mr carpenter made without asking any question so not only isn't there anything in the record but there's nothing in the strict carpenters here that indicates any concern about any particular factor opinion i can't say but yes that heart is not within his calculus but i think in looking for clear erm it's certainly something that this court can look at to see if that further supports the kind of finding made i don't rely on i mean there's plenty in the record is judged that in each of the four factors he relied on in the statistics in the comparative use of of potential reasons and and this court did that same kind of of use with just one reason in holloway you looked at aids and saw how age was applied to african american jurors youth but not to white jurors and that supported the decision  objections he said in this past and on the subject and he's striking all the blocks and he's not talking about the priors so of course there's no specific objection to the priors i'm not sure batson requires a specific objection to each juror because the object of backs in is to raise an objection when a pattern appears and so sawyer says i'm not saying he did before that is a different scenario that that could be but it seems to me if you raise an objection as to the striking of of african americans or as the striking of black jurors during it that that objection is sufficient to cover the jury selection as a whole and i don't think any of the backs in motivation this court has said that in the u s supreme court said that in both snyder and dread that you can look at how the prosecutor treated other jurors and if you think there's motivation and some racial motivation in some that is evidence that there could be racial motivation in other strikes so even if there's no specific objection the streitz of of samson and williams and green are also relevant to the question if it's only limited to those four or five jerseys who were who were on that panel then he's making objections as to specific jurors and carpenter statements oh how awful and i have struck all the blacks isn't responsive to those strikes about those specific jurors i want to i want to talk briefly about lisa patton and then if i still have time about the statements a is is a particularly telling strike in this case because when you release of patents testimony it's she is prototypical prosecution ger she comes from a police amalie very who was a student so clearly that wasn't a problem for this prosecutor she she had difficulty with the question about whether she would give more weight to a police officer testifying than to a civilian and mr rogers questioning her about that isn't rehabilitating her isn't establishing a reporter it's trying to understand if there's grounds for a challenge for cause it's trying to understand what her real feelings are about that issue and how she might explore that issue when it comes to trial it's certainly a very legitimate grounds and i think any defense lawyer would ask follow up questions on and you can find a negative inference from that this is a prosecution juror and mr carpenter didn't ask her any questions he didn't wait to see whether it was his turn up he wasn't responding to what mr rogers did his turn up to strike and he struck without asking any  questions and you look at that and really the only reason the only reason that jumps out at you about why that is a strike is because of race and i think judge though was perfectly within his rights and perfectly you take that but i think what such bit of it was looking at is is did mr carpenter have a knowledge of the law at the time and at the time of this jury selection the law allowed him to make individual strikes on the basis of race and mr carpenter's response about i'm not i haven't struck all the blacks i haven't you know it's not a systemic exclusion it's consistent with a finding  that did not have to accept his testimony and he did it because his staff three finding that there were five strikes that were of purposeful discrimination indicates that he didn't  reference that that the that the the reason why you can't just take the prosecutor's answer i wasn't striking on race as a race neutral reason is because the court recognized that there may be unconscious factors at play and i record clearly there's record support for all of the judgment of his findings and that should be the end of what i just want to say this when i am it's it's to me this isn't just a clearly erroneous fox really when you look at this as a whole when you look at the the numbers the numbers he had there was a majority african american jervas seventeen out of twenty nine that he had the opportunity to accept sixty percent of the of the jurors he had the opportunity to accept or reject or african american and he ends up with just four gets that that magical eight four split that that some prosecutors maybe not  mr carpenter but some prosecutors in philadelphia thought was the right split the have in a jury he gets that split by by striking such a large percentage of jurors and you look at all the even though this case is old and even though the facts are serious there's no doubt we can't allow that stain to be or what happened in this case we have to remedy that state we can't allow discrimination  concern about potential traction within young white jurors and in the rogers and we do have a case to ryan this is if you're going to apply that concept of attraction you can't apply only on the assumption that a black woman would be attracted to a black man in a white woman would not be attracted to just that because this is about the concern with attraction how you respond to that he didn't seem all concerned about the young what would be history and a couple a talking about reporter that's what what he meant that that's what a compass what he was talking about attraction and he did that he was an attractive man that kind of thing with respect to i agree it's rid of a tricky point  perspective juror and there's no basis for thinking there's a special bond between them and he the prosecutor says i struck because of i thought there was a special bond i think that's discrimination i mean i think that's the kind of thing that a trial court can see in front of it and say well you're making that up i didn't see any of that on the other hand if it's true it's a race neutral reason there's a third  possibility to based upon some objectively observable right and if and it's let's say the racism is coming from the other side let's say that defense counsel is is trying to be especially friendly friendly to black women then the prosecutor is put in a position where it's sort of a race based strike by for race neutral reasons if that makes any sense a so you know there's a lot of moving parts here i don't think i think mr carpenter's concern with mr rogers was something that came out really clearly at the hearing he said it again and again and again and frankly was the first thing he said to me when i called him up i mean that's that's he didn't remember this this trial very much but he did remember that about mr mr rogers and again it comes back to is isn't that kind of guess work enough to overturn this conviction i think if i can i really like to get to just very briefly these two the two types of evidence that i think two of the three that are not explicitly that the state court had to really explore the same comparison one characteristic three jurors had already been explored in miller l the supreme court compared to black jurors to a small number of white jurors and explicitly found the differences were far from significant what the district court does here goes far beyond anything that the supreme court has approved of this record compared you know all the black jurors using a dozen or more criteria especially the racial variances analysis which i don't even know what the point was i don't even know what the legal consequence was you know he went to judgement over went through and said well this particular factor say age i so that's number one with respect to statistical evidence and i'll end on this you know my my basic point with respect to the statistical evidence is that the statistics here are materially i don't tickle to four cases that this court has said  those statistics are inconclusive and i am talking about four primary statistical measures strike rate exclusion rate acceptance rate and representation of african americans on the jury  live really only talks about strike rate and acceptance rate but let's talk about other things as well representation on the jury there were four american african americans on this jury that's more than lewis which was an allegedly an all white jury that's more than that's the same as bond slightly less than williams acceptance rate mr carpenter except that about a quarter of the black jurors he had a chance to accept or reject that's more than lewis were apparently there was a zero percent acceptance rate that's the same as williams which was a twenty six percent except in three and it's about the same as it was a mall which is about twenty eight percent on was a little bit higher like forty percent exclusion rate which is the difference in the proportion of black jurors between the veneer is a hole in the jury we can't measure this because we don't know the make up of the veneer and underage that's enough in itself to reject the bats and claim because it's based on statistics and we don't actually know that significant is not  i agree that the way you define the different ends that are part of the comparison that's problematic because the maybe this summer people in the scene and the character this is applied to but you're not suggesting that should be ignored it might be one factor to be considered or considered along with a lot of other well at the very least the same concerns that that convince this court to reject the statistics as insufficiently probative in a boojum all would make it the same statistics be worth very little as proof in ultimately deciding discrimination and and i'll also point out my brief and i think this is this is an interesting point that at one point during the on the jury itself is almost like it danica in proportion and finally the strike rate which is the big piece of evidence thirteen out of fifteen peremptory strikes used by mr kopper were against african americans that right is a tiny bit lower than the strike rate in williams which was eighty eight percent it's comparable to the strike rates and bond which was seventy nine percent and that was in a boojum up both sixty seven percent and since this is a small sample size are only talking one or two jurors either way you know and yet in all of those four cases this court said that the statistics were inconclusive and that's the strongest evidence they have and that's that's ultimately why i think that relying on especially the statistics circumstances sure but i my final point is that for the court to say that the comparisons are strong given the number of recent reasons that are that are going to file with each tour being compared is putting is uncharte