assumption that at some later date so mccullough court deems that an inquiry should be made out an abundance of caution i am going to ask you to put on the record what reasons you have exercised for the challenge so the trial judge was satisfied that there was no  made out right that's what the trial judge said yes is that the decision that's in front of us but i don't think that is the decision that's in front of us because the because the trial the trial judge went on to conduct  ing because he's wrong on step two or three well the court of appeal used a strong likelihood standard legal standard which was incorrect so the trial judge's decision is not entitled to government and this and to do what he did the trial the trial judge because he went on and asked the prosecutor for his reasons and then you know pro forma manner accepted those reasons i think we   conditional language regarding the ramifications i'm not sure what you think that's pretty crucial in terms of the reason i don't think so why not i would like to in order to address that question i'd like to go back and argue that and why i'm i believe the problem think your case was made by the trial court in this case i think that we have two challengers and two black prosecutor's reason for the challenge these both the jurors were completely well qualified they were they were both married they both had children they both had stable jobs there was no red flags whatsoever and dismissing either of these jurors is the problem if the trial judge was maybe had gathered whether a provocation case had been made after the challenge of the first year certainly after challenge after the challenge of the second juror who was athlete qualified that i believe would have been more than sufficient to raise a reasonable inference of racial discrimination now that's not an onerous standard under batson it is not an owner standard and the courts have said is much nothing at all under standard i think the fact that these two challenges followed each other for no apparent reason i think was deficient under the reasonable inference test and i disagree i think there's a tremendous their war they are answers that would have raised any sort of red flag the observations the prosecutor said he made of the second struck her of the second second structure of the woman who  prospective juror as client had indicated that his brother was convicted had been convicted of a drug crime that's patently false and the record shows that so that should have raised the attention intensify that the trial court's focus on whether prime facie case been made then when the second challenge came respect the juror beat the prosecutor so well in the hallway i watched her and she appeared to be alone or well the defense counsel immediately controverted and said i watched her in a courtroom and her responses were normal she acted in an appropriate fashion she responded she was animated at that point the after the first challenge w presumably contrary to the record at that point based on the prosecutor's our challenge based on these observations in the hallway you would think that the trial court would have jumped in at that point and offer facia and in that regard what do you do with our case united states versus the wills where we think that a program to a challenge to only members of a similar racial group you were just given us that two people of the african american ethnicity were challenged and it appears that will says that's not enough for making a prima facia case you have to give us something else in terms of the numbers in the pool or other numbers that were excluded what we have in the record regarding that well i think that i don't agree with wells i don't see how wells lines up with evaluating the circumstances around the challenges i mean so it sounds like world is looking at just to just accept numbers roll through people or challenge that's not enough where the circumstances surrounding the challenges come in say the answers on board are the answers on board are these that these two jurors were completely qualified and showed no indication that they would be biased in any way looking at it from a statistical point of view i think it's hard for me to understand how we can rely entirely on statistics when you're trying to raise a reasonable inference of racial discrimination i think if you wish and does most two years so california had not you know tried to equate strong likelihood with reasonable inference i want to explore with you a minute to your idea  at because the trial judge went to steps two and three that we can review those even if we think he was right on step one i'm an old trial judge i was a state court trial j so i sympathize with this trial judge you said you haven't you haven't crossed the first hurdle here but if i'm wrong about that i don't want to i don't have house back for that purpose we're going to go on and analyze it to open the inquiry about whether there's been racially motivated racially motivated challenge they say the majority puts the proverbial cart before the horse we're not concerned here with the trial court's ultimate finding as to intentional discrimination that your selection project process which are we going to insulate from review what happened here because the trial court used a strong likelihood standard to immediately denied the motion but then went ahead and explain and asked the prosecutor  the briefing today but its response decision that this court can depart or are or look at weight again in light of the new authority represented by johnson i went through sort of my argument in that regard that the that hernandez does nothing to move the problem to face a determination here under the circumstances presented as the court pointed out in hernandez what happened is the defendant made his that's a motion before the don't record as it possibly can and it makes an expressed finding of no problem a face to case and if then as i said conscientiously goes on to make further determination so that there will be a complete record for review by a court such as discriminatory reasons we've got we've got within the record there we can we can decide that being noble i mean well be i mean i know part of your argument is that well even if you look at the whole record it's not there certainly is the no i would i would urge that that's not what this court should do this court should apply fast and which says that the burden is on the movement to first meet his problem the facie case and until he does that we don't look at the justifications for the was what was pointed out by the defense counsel with was that the stricken juror was african american like defendant and that's basically the only other showing is pointed to by counsel was this whole notion that and there was no other reason to throw them well if the court in towns were doing their job on exercising their for cause challenges that's always going to be the case if there's some sort of clarity glaring vyas that's coming out then the jury's going to be excusable for cause it's always going to be the case that there isn't some other thing and really the only thing they showed was that he's african american i'm african american and this court's jurisprudence the supreme court's various groups and state various presidents are all in accord that that's not enough also there's this there's this notion of insulating the ruling well the only insulation of the rule in our attempts to do that are by the other side which is telling us to look at the pronunciation in any event there was really nothing more than race shown here  and that's all there was a while and again while not strictly dispositive it is significant that three jurors sat that the prosecutor accepted the jury many times prior to striking  out in a reason that's been upheld by this court itself that at that point the defense had exercised a lot more periphery than the prosecutor had and he had reasonably gotten to the point where at that point based on the composition derby was  clear and wasn't trying to blow out of proportion what was said in fact the cross accuser granted that although he didn't go so far as to say the brother had suffered a conviction there was some sort of negative drug event there was given by the tenants counsel that the court didn't make any finding well the court didn't make a finding it ruled in favor of the prosecution and it found the reason perfectly adequate so it made a finding that in fact it was genuine under the same circumstances that the silence nial of the petition for review when they also raise the client be read through to the procedural bar there's been absolutely no showing of causing prejudice in fact on the first question in helen's brief he sort pointed out and as a core he'll also express we found in a finding of fact which is also entitle to a presumption of correctness until overcome by clear and convincing evidence of by the way the step three determinations on the women faster it also appears to be that cocaine dealer says you're going to get out of dutch with me by doing the following on this fake license you're going to take it along with these bogus checks to the computer store and you're going to buy this computer on my behalf then our debt you're in your debt free the first question of ineffectiveness more common is the counsel but in any event as the case you suggest here by putting that before the jury by making it plain that that was the basis of the fansub i are going putting it before the jury counsel complied with contrary to the record or militate against his credibility i think he put the cart before the horse and so i don't think that hernandez need to be controlling that's the facts of hernandez i mean here so any trial that means that any court want to do that and shift the whole batson analysis into the arms of the trial judge are we going to ignore the record in this case based on the trial judge statement and then i would like to address more specifically your question about you know what was in the record that would have justified a reasonable inference conclusion from the  allowed three he did not make wheeler bason challenges with respect to three jurors african american jurors that were seated on the jury which means that he wasn't doing the scribble slee he obviously fel there were good reasons there was no reason for those jurors to be struck and he didn't say anything with these he did and i think that's that's something to take into consideration in terms of whether a crime facie case is when met the other thing is this jury answered the question of drugs in his family with the response that he had a brother that fifteen or twenty years ago been involved in some drug incident fifteen or twenty years ago that's a long time which the prosecutor then said well indicated that he'd been convicted but nevertheless let's just look the answers to the vardar questions and your time