and number three if that this court concludes that conclusion at step three was as a matter of law appropriate that no difference is due that conclusion because it was based on a reasonable determination  oh ok and actually i'll just go right to step three then i think that may answer your question of course i'm quite aware of the fact that the difference is due to i thank you all findings made by state court i think the court understands that reason there's a constitutional violation and that's why i said there was an admission by the dca there is a legal conclusion which i believe it is or whether it's a finding of fact if you see a clearly said as i agree with the court that it was a cheating come out of the blue that he's literally responding to the drug raids request given your reasons for striking these people and so i agree with you right now i disagree that it wasn't the primary reason but that's besides the point the court of appeals and i agree with you did clearly find that that was a reason and i one of those equal protection cases the court made it quite clear that if race is a part of the reason just one single part of the reason and nothing more an equal protection violation has occurred and that's what is happening where there's liability it's talking about a case where there's in direct interest where there's depositions where there's trial testimony it's talking about a situation where the finder of fact whether it's a judge or a jury has an enormous panoply of information newport and the pla compelling in the jury selection process we're not talking about a civil liability what the court says about that's and his race neutrality the fourteenth amendment is the most compelling place for that is in the jury selection process and it talks about there's absolutely no place risk whatsoever as a criteria and if there is a criteria even one thing is given the minimal standard that we can expect from a prosecutor it's so easy to get over the second half is to have where in the race neutrality that's what that's that but actually that's not really a reason all these other reasons are the real reasons that i would have done it anyway that wasn't any of the trial court a court didn't even hear it didn't didn't understand it didn't recognize it and if you see a self never mention the vote th just one factor insufficient one factor insufficient and we require ways neutrality it's never come off of that if you would allow that right now you let the state in every case when there's a broad principle like this being said a finding that race was a factor not that race didn't play a role but i'm finding that i mean it was about wasn't the primary factor in the state courts never shifted the burden of proof to the prosecutor as required by the supreme court's mix more of cases including the arlington heights case in the pricewaterhouse case which tell me why it makes a difference here given  never had an opportunity to consider the application of mixed motive to the batsman situation but that does not mean that it is therefore permissible the argument  applies in a case where the state courts fail to apply the proper burden shifting standard which is what it was required to do if we were to turn to mix mode of analysis as state urged just where and when the courts fail to to the extent that there is a court trial court was asking the prosecutor to carry a burden it was merely his burden of production that step two of the bassem inquiry to come forward with a race neutral explanation for his should be you know it's important to clarify that counsel's argument is that back says they didn't order to get to step three the prosecutor has to come forward with a race neutral explanation that was not done in that under under well established back some principles it was it was wrong to go to step three know there were a whole lot of race neutral reasons but there was also a mission of a racially discriminatory purpose and there was no showing of causation is required under the   in california as well as in virtually bork the ninth circuit agrees with the councilors supreme court that on review for the first time on a cold record you cannot conduct an adequate comparative juror analysis you don't have a record you don't have any statement of reasons from the prosecutor as to the strategies in allowing certain jurors to sit and other jurors to be excused neither of the three defense attorneys here raised that issue at trial  in contrast to mill around where you had a bass and remained hearing two years after the trial as well as a swing hearing during the trial where the prosecutor was cross examined and put on evidence and he himself brought up the question i looked around for a few i didn't find anything where both of those issues rub result honoree me and like that but i don't see any reason why it couldn't be done because obviously in this situation the prosecution has  the defense has to put on some evidence otherwise you cannot reverse under the federal rules of hell procedure and you can't reverse a judgement where there has been a procedural default like that this issue wasn't raised at trial if there is going to be a for a mixed mode of question to be resolved with testimony with findings by the state court judge and then deference to those findings by the district court as was done and or as was recommended in the cases that i cited to the court i don't see any reason why the question of comparative journalist couldn't be resolved it's my understanding that the state has still maintained all of those records as to the progress of this trial in fact never really forgot this trial because it's been going on through the appellate process for quite some some years now  and i think that it is possible to reconstruct which is what they call this kind of a hearing a reconstruction hearing into the how are the same koski terminology to reconstruct your reasons for why you allowed a certain four or i should say done in the trial court and the us supreme court precedent does not dictate otherwise does not require an end in miller the situation was you had to remain where the prosecutor did in fact bring up the issue there certainly was no objection to it being done by the us supreme court and it wasn't really an issue in the us supreme court if the propriety of it wasn't really an issue in miller well really what was going on in miller well was a discussion of the death qualification issue among the black and white jurors in the so called disparate questioning it was a very discreet issue easily dealt with and very easily resolved in this situation where you have multiple reasons given for a particular challenge you're going to have much more difficult time parsing out what was the real reason what was the predominant reason here u s or at least incomplete statement by the trial court which is the track courts that i find sufficient justification trial court made this finding after listening to all of the reasons including the three of three pages or so of comments background information defense attorneys as well as the statements of the prosecutor both in making his initial comments and responding to the arguments and then the court makes its finding in the trial court yes there were arguments where the defense attorney said basically this is a racist reason this is the reason all of the i haven't heard anything yet that indicates anything but a race reason is what's going on here another of these other reasons these are just make wait they're pretext this is the real reason that's what the the same paragraph there the trial court said one of those reasons the court was listening to everything that the prosecutor said and found sufficient justification you can infer from the record  oh no yes i am making that fine then that is my statement that is our position to the trial court made a finding that the reasons were sufficient to justify the challenge w time afraid that i might have records or a little i wasn't ready for the ok here we go at the end of the prosecutor's comments after the defense attorneys the three defense attorney argued the court says all right the court finds there is sufficient justification to support the peremptory challenges and this is the statement that we were all just talking about a few minutes ago where the court also says with regard to mr endows my understanding about mr dyckman said is that one of them at least at least that she worked for the trying not because she was one of the tribe but she worked for the tribe that's entirely different that's that's the finding the trial court made the court of appeal that i was attempting to answer judge kozinski questions about what that statement he was asking me to assume for the sake of argument that that was in fact the case and based on that assumption and that requests that command i was doing that said in my experience in humboldt county employees of the tribe are resistive of the larger society's criminal justice system we would have a very different case here could you please tell me that circuits which is that the proponent of this claim that there was a impermissible motive has to get to a certain point and show that there was a motivating factor present that comments over and over again and you know if you will recall he was quoting or paraphrasing a defense expert who would come in regularly into these criminal trials involving native americans for example who he clearly cases where a peace officer was killed and he was some arising this defense experts theories to juries to criminal juries that according to this defense expert it's ok you know you have to sort of give some leeway and some latitude when you have a native american defendant because child molestation is ok in native american culture i found it very interesting that the prosecutor brought out the child molestation question because that was really the motivating issue here with regard to your mind there when we don't know that it's possible that it's in the united states we bishop i'm not sure i have to really read bishop and find out because it does footnote that in rejecting the argument that the sole reason as long as there's one race based reason that's good enough to reverse the judgment and in fact that's just the opposite of what babson helped twice in its opinion which is that the quote protection clause prohibits the exercise of a printer challenge soley based on race see that's that's a flip flop that's exactly the reverse position of what bassam itself has held the cases are legion and hold that that you are not held to the high standard if then find that the but for a predominant reason and is a good enough reason then that's the end of it and there is this process that you go through and it's our position that this process was followed here and there and certainly the process that was followed here is not inconsistent or an unreasonable application of united states supreme court precedent and i see i have about fifty seconds left if there are no more questions so i'll just sit down have a drink of water thank you reasonable have in fact required showing that the state court followed the proper burden shifting standard with a couple of exceptions but i think virtually all of the of the court certainly the second