application hopeless or an on reasonable application fact and including included in the unreasonable application of fact is a for but that's not the issue before us so could you get into the weeds of those two arguments please yes this violates federal law as the as  defined by the supreme court end it's a very unreasonable application of the logical facts in this case there were st of all there were three clear errors before we even get to the the bats issue and the trial judge himself acknowledged those three errors he acknowledges in the st sentence of his order denying our motion for a new trial the st error was that at the sidebar at the time of trial discrimination here at the time of trial he did not apply the three pronged batson test it wasn't until after the verdict after we filed a motion for a new trial two months after the trial that he rehabilitated the record and he took in new evidence and i i think the miller l decision among others says you can't do that you can't beat he went out was wanted to say he wasn't he didn't he didn't consider  additional evidence it's really explicit about that wasn't convinced of that even though yes he hurt it was offered but he said he did not consider it instead he focused on the reason that was given contemporaneously with the objection of defense counsel and then talked about the demeanor of state's counsel when that objections ridge so he he he prosecutor's representation that she struck the lone black juror the lone black person in the room of one hundred and twenty dollars or so white people on the basis that that lone black juror had an th grade education as opposed to the th grade level educations of the other white yours and he and he accepted the prosecutor's argument even though the prosecutor excluded three college level jurors that  absolutely no sense as a completely didn't what didn't what can what happened here phrased as we must in the king at the way the judge did his that the prosecutor struck out of thirty two or thirty four seated as when you're done with the four cause challenges sheet she struck st any who had any record and then when she was done she struck the only person who didn't have a high school degree and the judge says i believe that was her reason i find it credible how do we get around that st of all there's no there's no record of that she apparently everyone in name thinks education is an important thing because that's one of the few things that is listed on the juror sheet is education level and so she said this is the only one with an eleven common one is someone's wearing a tie i'm not going to pick them well maybe it is the way we should be doing void year when we're talking about excluding the lone black person in the room from a jury in and highly racially charged  court and the problem here is the u s supreme court is fine we are l decision justice kavanagh's decision in flowers and two thousand and nineteen would have made thurgood marshall proud but probably not count so we're happy to hear you approve of what the supreme court has done but let me focus and the credibility determination sometimes and these hate b s cases where the matter is resolved a hearing in fact the prosecutor has put on the witness stand and it is cross examined that didn't happen here but then you didn't ask that that happened here and indeed i believe you said you did not think the prosecutor was a racist and you did not think race discrimination was what motivated the strike so how can we say that the totally apart from whether the credibility supporting it is reasonable based on the facts of the explanation how can we say that the trial judge who was remembering the demeanor of the prosecutor at the time especially in light of your statements was not credible independent and objective judgment in assessing no real cat we cannot we are a congress restricted the hague be a scope of the federal courts of appeals and the district courts a deep in the ways that i outlined at the beginning of this argument so again what is reasonable about the law courts determination than a person with a th grade education especially when we're talking about four white guys coming at you with baseball bats and iron pipes and calling in the n word calling you a gorilla i don't think it takes a ph d to understand that other way around for black people with baseball bats and i invites against a white person do you think the prosecutor would have excluded the lone black you're in the room i mean use in you know we can certainly you know and he be a subpoena here but we can certainly use a little bit of sentence on the two class c violations so in fact the trial judge sentenced him to less than he might have anticipated the judge considered a number of sensing factors including the fact that he was a twenty year old with i believe little or no criminal record this was a this was a pretty egregious case we had a skinny twenty year old kid from philadelphia running into four white guys would literally start even at the trial level the judge said what do you know what are you doing here excluding the lone black person and then of course the law court we go before the law court in the law courts said we're pretty skeptical about the prosecutor did and then we saw a judge with cox this lengthy  and you're stuck with that too and you have to convince us that there wasn't really an unreliable determination factor all the way back to the trial the trial judge concerned about the situation so as a prosecutor you really want to do this nevertheless concludes that there was no pretext in the rationale for apparently it looked  later hearing at the trial the judge said it was true was concerned and asked the prosecutor for a reason but then the judge went off on the  tangent gosh to make out a batson client you have to show a systemic violation and at that point instead of your saying no the judge that's wrong  and we need to get on the record now the full articulation of the reasons and so there was not a full exploration at the trial the fuller explanation only came from later but in a sands when the trial judge made this mistake you did not tell him you've made a mistake you agreed and you just moved on that's a fair point judge i do think i preserved my my batson objection  but the mistake was made nonetheless and the judge the judge those acknowledge that he made the mistake he applied an outdated sixty year old standard that had been no dated for twenty one years by the time bassem came along time  and video at this time and attorney may come or please introduce yourself on the record and then proceed assistant attorney general donald make number for the warden of the maine state prison please the court of the prosecutor no such finding was made at the trial that's correct not the time of trial but while the matter was just ok so can we go back to my concern this is a well respected up to often but he then three months later reviews matters and carex his earlier error of law and then relies on his memory and quite correctly excludes reason set or proper to after the fact but this whole thing is actually quite understand why even with our limited review we would be concerned about this situation absolutely your honor and the trial court to his creditors judge lopez noted  noted that he made a mistake in the initial stages and corrected his mistake and that's what we want judges to do and the law court found that no we want them not to make that mistake in the st place and  there is some value and having the contemporaneous exploration and not reviewing at three months later that's correct judge and obviously if not if if mr haas had not f a motion for a new trial then it's probably would have been retried based on the truck court's error but as you pointed out when questioning my colleague when the trial judge made the error mr hollis his attorney did not say you made an error judge that's not the law under batson and the trial judge wasn't given the current contemporaneous ability to correct the mistake that he had made which months later you just made i  record where the judge said i find there's no systemic finding of racism or whatever then that clearly would be in violation of patton and lock it would have had no choice but to remain and i would think of juror seventy one dollars was a pretext or not they found as fact that it was not that it was in was based on the education level and your job is to determine whether that's on reasonable under  right and that's why i asked you the question because i'm asking whether it's unreasonable i've got to look at the facts in the record and one of the facts that jumped out at me was the that claim by the prosecutor and it offhand it would seem to  call into question credibility and then i have to assess whether it did so enough to make it a reasonable has the determination by the judge but the starting off point is wow that seems kind of bizarre well it and again concerned about this statement by the prosecutor thought it was extremely doubtful but it did not think in the end that that meant could find the prosecutors the trial judges three months after the fact finding the prosecutor was credible i was undercut  started prosecuting when when she was making the challenge and then found as fact that the reason given was was the correct reason and not a pretext  don't like the way you're smiling or whatever then that because of the question or is if my colleague had established a pattern or practice like in like in new orleans cases like flowers that you mentioned where prosecutors routinely found who committed that and violations the called my colleague here at trial specifically found he was not calling the prosecutor's reasons racist and that the district attorney's office was not racist is only basis for claiming a patent violation is that the one person of color was a school and he also says look at it makes no  sense given the nature of this case to have excluded someone who had an th grade education when and fact a large number of the jurors and they had  th grade educations maybe early on they wanted college educated people it would be a different matter but why does it make sense to draw the line at th grade well as this judge pointed out you know during jury selection sometimes you're called upon to make very quick decisions based on instinct  and since the prosecutor articulated later when given a chance to flesh out the reasons for the challenge that self defense was going to be on the case which the prosecutor correctly noted was a complex why is self defense complex on these facts it's the obvious defense there's nothing complex about it the jury rejected at the jury instructions are complex having to draft since i have to draft self defense jury instructions all the time and i mean law court has even acknowledged in decisions that so defense jury instructions are pretty in comprehensible they are complex and they can be difficult to apply but i  guess just picking up on just clinches point this this just this notion that if you had seen here in high school you're equipped to deal with this complexity if you've only had eleven years four minutes for me the prosecutor wasn't given the opportunity to give it full explanation rather she still respond to a offered education no no no no no no no she started by saying gosh do i have to a this question at all or do you want to end the explanation from me judge and i at the judge says well yeah i guess it would be good to get an explanation she was resistant to the notion that she had to provide any explanation because the because the trial judge song found there's no systemic discrimination so desperate a project was finding at the time of trial then why didn't the prosecutor had met his burden yes yes and if the trial judge had said that at the time then the prosecutor would have been able to say beyond what she did at the time of trial which was education and other factors and what the other factors were at the time of the motion hearing couple months down the road and the trial judge i believe did not include that actually i think the question is the a deeper question of whether one can say that the main a court decision was unreasonable and we've through our questions have expressed if you will a number of doubts about how the case has been handled but the alternate question isn't what we would have gone on direct appeal the ultimate question is whether the main law court decision can be said to be unreasonable either as to the facts or the law so you have a couple of sentences on that i don't think i could say it any better than once in fact that was my closing saying my little scripted line here that even if you reach a different conclusion in your own independent judgment that's not the issue under a deeper issue is whether or not the law course decision unreasonable application of the facts of the law and on this record you just can't make that find g in light of this case have any steps been taken to provide more education throughout the participants in the criminal justice system about the gone to the law court without defense filing a motion for a new trial what court would have quote had no choice but to remain and it to the lower court  that's quite a sophie's choice for we defense lawyers that at the trial level when you've got a kid twenty year old kid who's just been sentenced to three years in the main state prison and you think there's been an egre remedies at the local level and file a motion for a new trial and raise these concerns i think i think we did the appropriate thing where i think it was inappropriate i think miller l agrees with this the record was supplemented to three months after the trial and i think if you really look at the language in justice souter's decision in miller al he says you can't do that and even though flowers is a obviously a very distinctive distinct case with six murder prosecutions i think the most recent roberts court has resigning lee endorsed batson were asking for local and state courts to  you know the law court actually just came down with a decision where they really aggressively reversed justice stokes on whole issue of questionnaires how many questions you can ask on race related issues so hopefully we're starting to see some some changes here but we've been frustrated by the way minorities are treated in the court systems in maine we have a very white state got in county and been very successful at it and i i'm telling you it's very difficult representing blacks and other minorities and i just really going back to  question i really think yes the answer is yes we really should be forcing prosecutors to give bigger explanations for more robust explanations when they're moving to exclude session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting