afford the deference to the state court decision it's required by section twenty two fifty four banks rule that the federal court can exercise independent judgment and independent judgment standard is contrary to the deferential standard required by the statute as and because of the later decisions of the united states supreme court particularly with reverse viscosity explaining that the independent judgment standard is contrary to the different standard is our position the banks is no longer sound law but let me  teed this case is not teed this this case does not have a chief problem that is correct how is the charge in this case and all the latest all broke it went through a power hearing and the latest was filed just earlier this week how does the charge of this case in any way differ from all brick well it's not a position that the charge in this case differs from that a rather it is also our position that the charge does not materially differ from the instructions in seven where now our decision is the director probably run into there that one could say that you know we're really parsing things proximity of unanimously to the word mitigating is all is literally identical to fraud with the exception that you added three sentences here and the three sentences don't help you remember again that your verdict must be unanimous it cannot be reached by majority vote or by any percentage it must be a very good each and every one of those recesses hurt you i think that only to help you you know well our position honor is that the court must in such a case where deference is required take a step back our position is that when the court arrives at the point at which it is counting the number of words between certain phrases and when the court is saying that this case is unsatisfactory under the mill standard because the phrases are seven words apart but in this other case the instruction passes muster because the words are they who praises are seventeen words apart that's a fair point that let's let's let's go back and mills and boyd and see what the standard should be and how we should look at this and i think maybe you want to start off with  h whether this matter is properly before us and whether it was probably properly before the district court well those organs that we make in our in our brief we contend that the real basis with claim because the issue was narrow it was specifically drafted by the petitioner in fact he said he was doing it to avoid that i'm aware course the district court disagreed said that you had to read look at them together that they were  page three the sense in verdict form so in saying that he was not attempting to claim that the entirety of the instructions were the cause of the problem under mills but he was maintaining his position that it was isn't what is being said is that whether the verdict form or instructions they go hand in well not according to their a claim that was raised by petitioner but and this petitioner in his quickly for example on page one fifty five of his briefs says that the instructions are to be looked at in tandem with the quote with the verdict form so that's all the way back to the briefing before the record that's true but in the sense of it fifty truck sions failing to adjust floor correct for i suppose that error that was restricted to the third page a minute makes a difference here because isn't that the toughest hurdle you have with respect to mil's actually with respect to the verdict form itself the verdict form says that we the jury unanimously we the jury have found unanimously and then it goes down the says the mitigating circumstances is or are and then at the end each of the jurors needs to sign if the court's or our court has said that its interpretation of mills is that there can be confusion among jurors with regard to whether they must be unanimous in connection with finding a mitigating circumstances circumstance rather than just having one juror able to do so doesn't this really isn't this the paradigm of that type of ambiguity which leads to the confusion or at reasonable likelihood of confusion i should say well that's actually the problem with banks we cite cases in our brief not only is not only are but a variety of cases  assume that there is a unity required for mitigation is not a basis for relief under mils according to these cases which were contemporary with the state court decision in this case and i refer to is that a more because that's just the most imposing example of that because the decision of this court there in almost the argument you're making i mean if you have a case now two cases maybe three of the banks still exists that have almost literally identical instructions in almost literally identical verdict form and they have said that there is a reasonable likelihood of confusion your argument really seems that it has to be made to an event court not  albright cannot be considered controlling because it's directed as to whether or not banks are still sound because the holding in albert was simply that the issue was barred by t v and there is to be conflict between fry and settle moire certainly and so got to go back to we've got to go back to mills and boyd and see where we are but before we i want you i want to ask you one other question on the waiver issue the pennsylvania supreme court only addressed the verdict form they did not address the jury instruction issue but they did make a statement that matters that weren't raised on direct appeal were technically waived what were they referring to when they said they were probably referring to the b appellants request the case of its admitted to the state supreme court and under state law new issues can be raised a matter of right after the cases been submitted and argued so for that reason appellate counsel in the direct appeal could not in effect a for failing to raise mills even though mills existed the state supreme court didn't specifically say that there was a waiver of this claim what what happened was the court explicitly ruled that the climate been waived and when the case arrived at the state supreme court with the appeal but then they go on to address on the merits the mills issue yes but the fact that a state court considers the merits of the underlying issue as this court explained a number of occasions is not dispositive of course in any case of when in fact it's of counted the underlying i think the way as i understand the way it has to read the state court has to say that we have found a procedural default and as an alternative we will go ahead and we will deal with the merits but i state court here never said that they found a procedural befall you know you can argue that you saying that they found a waiver but they never found that either well they had no occasion to find a procedural default because the claim wasn't presented but the case you rely on so struck only deals with procedural default correct no i think since i don't deal with the principle that addressing the that underlying question it can't and that's the point if it decides to resolve the defect in his claim by addressing the merits of the underlying claim it still hasn't reached the claim itself as if it been raised rightly and therefore the federal court also cannot treat the claim as if they've been raised rightly it has to analyze the claim under the restrictions that go with a claim of ineffective sentence of counsel and that's why in this case regardless of the merits and we do rely on the  he was concerned but that's of course why the discussion of the merits of banks was dented because it wasn't necessary to the holding of the case but all that really does is just follow what banks did even the banks where banks still existed i think there is real merit to the to the deference question i think that that banks no longer stands because of what for and other decisions of the united states supreme court and the fact that so many decisions contemporary with the state supreme court decisions stated contrary to or unreasonably or actually stated contrary to the supreme court what is the standard with respect to mil's well that's the point you see it cannot be other than reasonable for the state supreme court to rule consistently with and many other decisions of federal courts of appeals and that's what it was doing and since that must have been a reasonable thing for the state supreme court to do a reasonable application of mills because that all courts have said so it cannot be otherwise ninety eight but the the so you went to the court would have fried before it doesn't just have that i'm aware of which is ninety one sure but it's a little more and fry effectively cancel each other out all of the other cases that preexisted that ruling with the decisions of numerous federal courts of appeals when it ruled that decision had to have been reasonable otherwise you'd be saying that decisions of however many circuits the were i didn't count them but  probably a good half dozen or more circuits of the federal pell courts were not only wrong but unreasonable in deciding that the way that they did that seems like a an unlikely result turning to the claims caldwell but rather was a violation because it denied certain specific constitutional rights clearly this claim cannot be raised from the first time an appeal the claim that was litigated in state court the claim that was before the district court and deny that the statements made by the assistant prosecutor were inappropriate for the summation to i didn't know that you don't yes i do not believe that they were inappropriate for this nation and the reason that they're not inappropriate is of the charge which will be delivered by the by the by the judge and what exactly what is the appellate process got to do with evidence that was a do state trial in light of the instruction to be delivered by the judge well the prosecutor was at the time making are going to the jury and that their responsibility was immense and extremely important and he said this repeatedly and in fact he concluded his argument on this point by asking the jurors to stand up in court and stand beside their verdict had the courage to announce their very you know open court and in the process of doing that he talked about the finale about whether or not about the finality of a not guilty verdict and the fact that a guilty the prosecutor was not asking the jury to understand that the real responsibility for the verdict was somewhere else the prosecutor was arguing to the jury that the responsibility for the verdict was theirs and that it was a very great responsibility so that alone takes the issue out of the caldwell context but another thing that takes it out of the caldwell contests secession twenty two fifty four as you know section twenty two fifty four requires relief where the ruling of the state court was contrary to an unreasonable application of federal law clearly established by the supreme court of united states and that is untrue of caldwell the closest that the united states supreme court ever came to applying caldwell in the instant contacts in the context of a guilt phase closing argument was darden itself into our view a right it would no fifteen the supreme court explain the call well as relevant only to certain types of comment that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision so when asked to extend caldwell to the closing argument context the united states supreme court said no have a fair trial have a six of them and right to a fair trial and by advising the jury inferentially maybe not directly about something which they didn't hear any evidence on that don't worry about your verdict because whatever you do here is going to be reviewed corrected whatever by the appellate process is not denial of a what are your rights secured by the bill of rights well it might argue we have been if the prosecutor had been telling the jury don't worry about the result don't worry about your verdict it's really someone else's sponsibility but instead the army was making was just the opposite he was repeatedly telling the jury of humanity and the gravity of their  decision on on the guilt phase and asked them again to have the courage to stand side a very that's not something you tell jurors when you're really trying to get him to believe that someone else was sponsible for the verdict so objection on the contrary of what the jury assumes that you do you have to have contemporaneous objection about how about in our court reilly butane those are both cases the deal with state procedural to fall and that's not what we're talking about here what we're talking about here is a rule of their all constitutional law derives from bad in itself and that in each of the instances in which federal courts of appeals have been confronted with this issue not a question of state procedural default as the rule applies even if  reach the merits but in each of the instances in which a federal court of appeals has been confronted with the requirement of a timely objection under babson is the second circuit the fifth seventh and eighth circuits they have held that a tiny objection is court had imposed an additional procedural quire meant that the objection be made it a specific point in the process and in that case the supreme court said that rules to new you can't rely on that but there was no question in fact that the state conceded in that case that there had been a timely objection the only problem with the objection as far as the state court was concerned was that it wasn't consistent with new state procedures requiring the objection and then they are your position as i understand it is that we've not ruled on this issue directly that's when the other hand we have treated we have considered the issue and more than one case where we have taken it up even though i  objection was not lodged time of the five year but those are cases in which no argument was raised on the principle that we're raising here this is a rule that as again these circuit courts of appeals ha said is intrinsic to the batson decision that is a matter of federal constitutional law and not a matter of state procedural default or a matter of waiver but a matter of the substance of the babson decision as are you saying that  that we did not concede there it was not raised by the defendants in those cases where we moved on and decided the prime fishing case issue well this is not something that you were raised by a defendant obviously but no no i understand or the court made that decision we we did it this court has never been confronted with this particular issue because there's never before been raised in the circuit and of course that's why they're relying on decisions of other circuits in which it has been raised but in the what became later backup counsel mr jackson wanted to do surveys and asked certain questions of jurors because he was concerned about the he was claiming that mr mcgill and others had used their preempt contemporaneously not just contemporaneously actually before the trial well it's not one of the reasons it would not be timely objections because it brought up so long before the trial was brought up in march of one thousand nine hundred two or three months before the trial right at that point in the listing before judge written defense was on the alert for any conduct on the part of the prosecution that may have indicated a racial discrimination and yet the entire voir dire took place and at the entire watch here no objection was raised  time to the effect the prosecutor was discriminating the basis of race no accusation was made against the prosecutor to the effect that he was conducting his why dear with respect to the races of the jurors and that is a the facts and circumstances before it so adult with it on the merits yes it you know and the district court dealt with it on the merits that's correct why don't we deal with it on the merits as i said the lack of any objection is important not only as a matter of by the lawyers during why dear in this case i would you all conceded in the peace hearing proceeding as a matter of fact that the prosecutor statements gave no hint not even a hint of any racially discriminatory motive that is in his memorandum of law  support of the peace area because in page one hundred forty six further in this case the prosecutor said that he wanted black people in the jury and it's important to remember the circumstances in which that statement was made the statement by the prosecutor they wanted black people in the jury was made in a matter of fact discussion in chambers dealing with what to do about a juror who would violate its equilibration and at this time as i said the entire board dolly i'm it believe me i was not going to keep her in the beginning is telling them that he was releasing her because she violated superstation mr mcgill i thought she was good she hates it she hates gemma can't stand it court that's not the point that she hates them all with what you know can't stand it it goes on and that's not so helpful yes both wars agreed both wars agreed that she disliked the law defended but it was during this discussion that the prosecutor mentioned that he wanted white people on the jury and you will no response of mr jackson as we know from march three months before mr jackson who was on the alert for any racially discriminatory behavior by the prosecutor responded to the statement of the prosecutor one of why people in the jury with with the prosecutor statement that he wanted by people on the jury is it is the record clear that the prosecutor except for black sure that comes from an admission in i would you miles haiti's petition i which is about and what about the district court  said that there was no record evidence in there of the number of jurors in the van here or the racial composition of the numbers in the jury and that's quite true many sir many circuits have said that this is an important factor it and that you can't you can't evaluate the strike rate unless you understand what the racial composition of the entire family are was and make a comparison as i understand  fine toothed comb as you can find and i invite the court to do that there is no record of the races of the vast majority of the people who have why did over one hundred fifty people were interviewed and there's no record of the races of any of them except for the particular ten jurors who were who happen to be black who were struck by the prosecution either twenty had available and just so i understand was there the jurors would come in what panels of about forty or fifty is that right yeah about morty that's right and how many panels came before the court for questioning i believe there were it looked to me as  the second they got to the second panel for questioning before the judge and the counsel i think there were four panels and i base that on the fact that on four different occasions june seventeenth tenet you know eleven june fifteenth the judge  gives the panel introductory instructions about what's going to be going on and also the numbers if you look at the numbers of jurors we were going through and each day they come to about well about forty and eventually with what degree of questioning of the panels beyond the second panel i'm not sure i understand your question is you agree or do the every but the court go through its questions and then both counsel go through their questions of the that's right ten of those fifteen were worth of of blacks by stipulation that correct that's right how many of those were how many blacks were struck by the defendant that's i know it is or i mean there's nothing in other words are you sure so no i thought there were six the record does not state the race of any of the people who were struck by the defense except for one juror who had been accepted by the prosecution and then struck by the defense in fact that was the second person selected to be in the jury by the prosecutor that person was black and the first person to be selected by the prosecutor be on the jury was black toast that statistically we have the calm while striking ten blacks we don't know how many the well there are many black people in the jury yet and there's a reason for that and the reason he said was that black people are against capital punishment in other words mr jackson indicated that a large number of black people were skewed because under again what's important is what he did not say he did not say that if there are not many black people on the jury it's because the prosecutor is striking in causing the race now the reason he gave when he went on the radio in the middle of watch here for not being that racial composition of the veneer in this case we would say that it was it's not a case like like princeton in which ninety one percent of the strikes were black people and the prosecutor in that case essentially admitted there was a pattern of strikes  it's not like holloway which twelve or thirteen strikes were black people and the prosecutor mooted the prima facie case question by offering explanations as was said by the tenth circuit and what he stated about  conceded by the prosecution or mooted by the prosecution that's not the case here but as i said it's also significant that no objection was made by the defense that's inconsistent with there being a prima facie case of discrimination in instances in which the defense who we know is on the alert for any sign a discriminatory behavior had an opportunity to talk about whether the prosecutor was acting in a racially discriminatory matter it didn't remain silent or actually in the case where mr jackson on the radio and said that well what's really going on is that black people are being rude because their opposition to capital punishment you know certainly the number of strikes is a point in favor of the cross appellant but test is not onerous correct that's true and it has even said in footnote twenty two that if you could show standard we adopt under the federal constitution is designed to assure that a state does not use preemptory challenges to strike any lecturer because of his race so if you could show an inference as to one juror who happen to be black would that not meet a prima facia test it would and it is our position that on the facts this case in this record such an inference does not arise and you and you may prevail on that but the problem is we never got to that second step where you examined where you looked at or gave the reasons as to why the ten jurors that were black that were properly challenged the reasons of mr mcgill you and the reason for that is twofold first that there was no time injection and secondly at the time of the piece here a hearing in which there were over six weeks of evidence you proceedings in front of the p c or a court no evidence was presented on that question and it was as john found the burden of the petitioner in that case to present evidence and in fact he actually subpoenaed the trial prosecutor but in a case where there was no time the objection and a great deal of time has gone by the president of this court says that it's not to burden the prosecution to move forward and offer reasons rich strikes when there's been no finding  reasons were it was the burden of the petitioner to call the prosecutor's what was that he had subpoenaed in but decided not to call on the only evidence that was presented in the bass in question was the stipulation that that two jurors whose race had previously been  suggested that the number of strikes alone might be enough to savage prevent a case we argue that it's that that's not the case or that if it could be it would have to be a case like branson in which there was you know ninety one percent level but in any event it's still a first stage question whether or not the prosecutor was on the face of the record shreiking people who were black because of their race and there are a number of indications of that was not what was happening there are the opportunities of the defense to say so during a volunteer which were not taken not taken because there was nothing there to to object to there is the affirmative statement mr jackson talking a radio about the case saying that the absence of a large number of black people in the jury was because of their opposition to capital punishment was the fact of the prosecutor selected for people again for that we know of there could have been more it's what at least four black people to be on the jury which would make the jury one through black would be a strange thing for a prosecutor to do who is trying to keep black people off the jury because of their race to select for black people to be on the jury  specially when he had a five on you strikes and that's something that was entitle to wait and also the question before the district court it must be recalled is that what you look at to get a  discriminatory conduct you know battle is very clear that all the facts and circumstances have to be considered in the first step in deciding whether or not there is a prima facie case in fact in batson itself in that case the prosecutor struck all of the black people in the veneer and the supreme court nevertheless sent the case back to the trial court where determination be made as to whether or not there was in the first instance a clean if that's the case that's not something the court would have done if it were not something that was in the first instance to be decided by the trial court and for a prima facie case the first thing you need is a cognizable racial group got that here and that the constitute jury selection practice that permits those to discriminate who are of a mind to discriminate so you can take that for whatever you think but it's the idea that the court is saying they understand that this happens to real life three finally defendant mu at what was going on elsewhere within the system at around this time well i suppose that's a reference to the mall is what we're study for example i mean in raleigh b taylor  can't county delaware they said that you could look within a year at the other three murder trials of riley's that existed and see what happened in those cases why can't you do that here well i think it could have been done if evidence had been presented at the more than six weeks of a venture hearings before the p c r a court in this court a motion was made to judge john to include things like the ball this study like to  include them in the record of the district court proceeding and judge john denied that motion in a ruling that has not been appealed he denied it because these things have not been developed in state court and as this court said in hallway matters that are not developed in the state court records are not to be tape or the claims that are raised in the briefs for the cross appellant was there an attempt to put in studies before judges yes and judge john denied that again in a ruling that was not appealed he denied it because these things have not been developed in the state court record and because of that they're not in the record now and the same is true for the references to a supposed cultural discrimination that supposedly existed nine hundred eighty two in the district attorney's office under  is no testimony in the record to confront this and of course the fact the petitioner had more than an ample opportunity to present such evidence in fact if the assertions that are made in the briefs were true it should have been more than easy to present in a large variety of witnesses to this supposed cultures from a nation yet we wouldn't these were not produced so there's no basis in the record for these claims they might have been relevant had a foundation been there but it's not something that the petition against rely on simply by a dirt into it with no basis in the record and also it has to be remembered that the issue before judge john was not merely was the state court right or wrong in deciding whether or not was a prima facie case the issue before judge john was merely whether it was a reasonable application of batson for the state court to set aside in this case on this record but taking a step back all you have to do with dispersed non onerous step is give the prima facia case that that just tells you right there you don't have to say a whole lot to show that you meet that test we never got beyond the prima facia case here to get to the other the reasons for why the preamps were used at separate if it's a low test and we have said in raw leverages versus taylor that you can look at what else is going on to show a pattern why should that have been denied because there are so many court i know what the court ruled the question is why the court ruled that why should it not have gotten to the second and third prongs of the bats in violation test not prima facia persons with respect which vary but if judge john was correct in his decision that the state court was not unreasonable in ruling that step one had not been met those additional steps would not be reached improperly so and that is what judge  the first step but when you're putting be stronger i mean if you look at the reasons that were given in john john's opinion as to the reason for each of the ten jurors it's not in the record as i understand it sure but but the evidence you that might have might have seemingly would have given you a stronger footing for saying that there wasn't a batson violation but it on this record that's that's sort of placing the state in our fair position because the issue wasn't raised until nine hundred eighty nine and no evidentiary shooting took place until nine hundred ninety five it was some thirteen years after the trial which brings us back to the first cases that we mentioned because one of the bases for the timely objection rule the tim time was reached when it was even possible for the prosecution to start thinking about whether there were what the reasons were for the strikes could see his thank you very much that your own back on rebuttal was right or are you going first here right i think that's more than an hour we will we will give you an hour here ok that's fine i apologize if my math is i think we would think it was sixty five minutes in any event  thank you in any event with regard to the mills issue you know while whether or not this court is bound by the banks decision or by albrecht this case where the same result is required in this case the instructions the verdict form are the same if not a bit worse than they were in banks this court in albrecht said that the mills merits was of on questionable merit and as i said even if there is you don't feel as though you're bound by that the result the same result is required if i could turn my attention initially to the verdict form because i think that there is really no question that that was absolutely presented as the claim in the state court  what about the waiver issue was it was a fairly presented both sides of the c r a court and also to the supreme court on v c r the verdict form as opposed to page three of the jury as from the jury instructions yes it was  it was presented in fact the the argument was made within the state supreme court's the brief made in the state supreme court the reference was made to the instructions you know at the outset mum just was not entitled  emphasis was was the very on the words it was it was on the verdict form it was on the structure of the verdict form and i guess i should say at the outset that even if that is the extent of the claim that was presented the verdict form itself here all by itself creates mils error and in fact this court in banks said that that that verdict form which is essentially the same all by itself created banks or what have banks still exist however what if it does still it what what of banks still exists however in light of what we're about to spring this court has said that banks is instructive so at a minimum the the findings in banks are instructive i think that there is be given that these united states supreme court set aside banks on retroactivity grounds that this court could view it as president but we know it a very least that this court has said in both packet and albrecht that banks is instructive but you know if you want to look at this case just you know even in isolation from banks and i think just since this seems to be less of a question as to whether the verdict form with that issue i'd like to first address the verdict form the verdict form has three pages and because i know that there's been an argument raised that only page three has been that there's only been a claim with regard to page three is really in the nothing in the record to support that the verdict form in its entirety was raised at every level in the in the state court and in the district court and if you look at the verdict form the verdict form page one and this is in the appendix of page one twenty eight the verdict form page one is broken down into two sections before you get to those two sections is a paragraph that talks about we the jury having determined the defendant is guilty to here by further fine then you have one and two subsection one says we the jury unanimously sentence the defendant to choices death choices life imprisonment subsection to be heading for subsection two and that's only to be used if is a death sentence we the jury have found unanimously underneath that subsection following the instructions in that top heading the jury is that instructed to either indicate that they found aggravators in no mitigators or as was the case here that they found aggravating circumstances which outweigh any mitigating circumstances and most significantly the jury has been asked to list by letter which aggravators and which mitigators were found which then brings you to page two in page three page two of course is just a list of aggravators with no additional instructions page three is a list of mitigators with no additional instructions and next to each possible mitigator there's a small box and the judge instructs the jury to p checkmark in the ones that they find and while there's no question that the law does not require there to be a very clear statement that the jury doesn't have to be unanimous before finding mitigat that that that he's not and that that having that lack of a clear statement doesn't create mills error i think it's fair to say that if you take a step away from this and you look at all of this how did juror  that they didn't have to be unanimous what in the instructions or in this verdict form would even hint to them that they could consider mitigating circumstance even if they were unanimous it's there's nothing here that would even suggest that if a jury looked at page three and was under the impression by some miracle frankly but was under the impression that they believe that that they could on their own consider one of these mitigators how are they to fill out this form were they to put into one of these boxes three of us believe that were they to put the names of the people they were just told to put a check mark in the only way the fact could be done would be if they had to the penalty phase four mitigators were presented and argued and the other thing aside from a our number there was a presented to the jury and asked them to find that the defendant was under the influence of extreme mental emotional disturbance d his age twenty seven at the time and then of going down of course then to the character testimony there was considerable character testimony at the guilt  and the entire guilt phase was incorporated into the penalty phase without going into great detail there was testimony that the defendant at trial was a reporter that he was a guest lecturer at a university that he was a community activist that he was the president of the alliance for black journalists he was on the board of directors of the african community learning center so there was certainly significant amount of evidence of additional mitigators that  it's we couldn't possibly say that not a juror or or six or seven jurors might have found one or more of those additional mitigators that they were prevented from considering unconstitutionally prevented from considering because the impression was given that they had to be unanimous and under boy of course we need to look at whether there's a reasonable likelihood that a juror would be confused about whether or not they could consider back to settle moir really come on i want to make a bad film noir at this point is that the way it was very different there was not a verdict form in several more anything like the verdict form in this case in fact this circuit  several moire commented that settle moyer was ok because the verdict form did not require a listing of mitigators and that suggested therefore to that jury that the consideration of mitigation could be brought whereas here we have the exact opposite there are two places where this jury is asked to mention which mitigators they found and there is no nothing here to suggest to them that they could list that or consider unanimous and certainly there's a reasonable likelihood that the jurors got that impression just briefly i have a couple more minutes i do want to address the claim that this that  the mills was improperly exhausted in state court i think that the commonwealth's argument that that it was only considered as ineffective assistance of counsel claim is not a correct one and i think that judge john correctly notice that the pennsylvania supreme court considered mils on the merits that in fact i think it's an interesting contrast because in the pennsylvania supreme court decision the very next paragraph after its mills discussion is a discussion of simmons versus south carolina claim which they quite clearly say we're reaching the merits on this only because of ineffective assistance of counsel claim in all brecht pennsylvania supreme court decided albrecht one month after this they also considered it to be ineffective assistance of counsel claim and said it quite clearly here there was a footnote dropped about the fact at the beginning of the opinion that counsel to be safe had said if anything's waived then please consider ineffective assistance of counsel and it's even pages and pages later into the decision where they reach mills with not even a mention of ineffective assistance of counsel and there's no question that it was both raised as a standing claim on the merits petition the jury charge i don't know for sure whether it was in the amended p c or a petition i know that it was referenced in the brief to the pennsylvania supreme court i know that it was cited in that in the brief morning with mr burns argument talking about really what seems like maybe step two and a batson and i would like to address step  one according to my math in our briefs the prosecution used ten to fourteen strikes which is seventy one percent now i've also heard the figure ten of fifteen but whether it's two thirds or seventy one percent it's still that in that range a significantly higher number will never i had seen was ten to fifteen where it makes you think it was ten to fourteen well we submitted a chart in our briefing and we came up with fourteen african americans i was on the panel but i could be wrong and i'm not i do not think that one either way what would make a difference i saw ten to fifteen in the briefing as well and i would accept you say to us that would indicate that we should find that judge john was wrong in finding that there was not a prima facia case made of a possible if i may go through and i'll list various factors which  case is you have an african american defendant and a white insident you have an african american defendant and a white police officer in this case you have a person who was a member had been a member in issues of the black panther party he had he was not a member but he had been supported the move organization their right to be live as they wish very controversial issues and it's interesting in trying to get into the mind of the prosecutor even at a bail hearing well in advance of trial the prosecutor was getting into the black panther party this type of thing  when character witnesses were presented at the good place at the end of the guilt phase i believe july won the day before the prosecutor even though judge sable stopped him was trying to again to get into for prejudicial purposes so forth race could have been relevant for decision making when i was submit that again and there's more i would like to present that to look at the full picture which somebody had mentioned earlier about we need at the bigger picture i thought of something interesting that i ran across last evening that i had overlooked and that is just again a point about the the mindset of the prosecution during the trial in the guilt phase a witness named cynthia white the key prosecution witness was on the witness stand the late judge calvin wilson walked in the courtroom and he set down near the family relatives of my client the prosecutor mr wood good old man interrupted and he said the black jurors might know him anthony jackson the defense attorney retorted very was thinking race when the when the judge walked in and just said in the spectator session in the courtroom it was earlier mention about a jinnee dal i believe some reference was to her she was removed because the jury was sequestered she had been selected african american and she asked permission of judge say bo if she could take her pet which she had received word or cat was done she wanted to take the cat to the veterinarian and the judge said no well she did it anyway obviously  so she was removed on the motion and won with the agreement of the prosecutor who said that we get into this business about you know she hates the defendant was interesting as ed another point on the say that she because she's black that is correct and he didn't say anything objecting to or being remote he descend nothing in technically me she did but i like the rule no question about that what's interesting yes she tried to do it properly and schizophrenic over her  to say because but she just happened to be incidentally african american what's interesting is the prosecution wanted to remove or i think the prosecution wanted her to stay because they thought that you know he said that afterwards he said oh yes i've achieved she's got to go he joined in with the judge  was and but then he made the point the transcript looked like they all joined in i mean the defense no one said i think she was sitting as this occurred out of the presence of my client incidentally which is an issue which hasn't been certified but it is one that was one of our   ation who asked permission to go take a civil service exam that was good and the prosecutor was all for that many that was fine with him it was granted and the court even adjourned for i believe us now after noon so this person good togo take a civil service exam you know itself it means nothing but is part of the whole picture where one person is treated one way and when the concurrence of the prosecutor wears the other was treated differently one with one that is as we know they don't know because it was all the judge and both coun about the panels that is unknown but mr jackson as i believe discussed earlier during mr burns argument had asked in advance of trial to do a questionnaire which was rejected he was concerned about what some of what we're concerned about today had that been done i i think one would assume that would have been built into what is normally in other places other jurisdictions and we would not be wondering well what was the overall makeup i submit that that's it's not really important it's what's important is what the prosecutor did with what he had and you have twenty five roughly twenty to twenty five percent strikes two thirds of white and two thirds who are african american that is again in and of itself but i don't more circumstance i have not gotten to but yes your honor but know that many courts said that it's important to compare the strike ratio with the percentage with the racial composition of the entire veneer and i we don't have that information oh and it was it was that it was that the obligation of the petitioner to provide it was that the obligation of the commonwealth i submit is not really happy with this issue a lot of said you have to have it but i don't know how we could get it i mean i mean it's just you know it's we're a day late and dollar short on that issue unfortunately i will say this that a vast majority and this is on the record  i think it was again alluded to earlier again as looking at the overall picture statements of defense counsel well in advance of trial on march eighteenth eighty two he talked about the prosecution systematically in case after case removing people because of their color he did an affidavit while the case was on direct appeal in one thousand nine hundred six which he said the prosecution struck and i'm using his words otherwise qualified but the newly persons that the prosecution again his words were was pursuing a traditional course of excluding as many blacks as he could solely by reason of the race this was the same as appellant in other words this case exclusions were also so because the big time was white he would make that comment anthony jackson the defense attorney no that was in an affidavit which is in our supplement that's what you i mean he's the defense attorney yes where is there something from that would indicate from the other side that there was i mean the attempt to bring out the m transcript but they came up many years later they are the only thing we have is we do have a i believe this in one nine hundred eighty seven affidavit from mr mcgill in which he talked about dealt with  and i believe it's in the supplement right after or just before the the one i decided it page to fifty nine of the defense attorney and he stayed away from dealing with any of this he only talked about the number of strikes he tried dealt with trying to resolve mention something about a tape and that gets into the next area of the overall picture and that's whether or not and use the words of in the in the case is whether or not there was a culture of discrimination which is what mr jackson was getting to and in and of itself of course he's an advocate for his client but he tried to get the question where he wanted to find out who was coming what was the composition general fact that the supreme court didn't exist as sometimes people do use pre amps to further a point of view they have in order to exclude particular person but then it's the third one that we're focusing on the defendant mu show that these facts and any other relevant circumstance raise an inference that the prosecutor used that practice to exclude the venire men from the bench jury on account of their race then so we're trying to look at what the factors might be in the judge records case and clemens he gave by way of example five in one nine hundred eighty eight and then i guess riley b taylor may have added another that you can look at what other cases have done in that particular jurisdiction that are right around that time but of the five the first is where members of the racial group are excluded the nature of the crime is the second the race of the defendant in the victim is the third the fourth is a pattern of strikes against black jurors in a in this particular of an area and we don't really have all of the information that we need to to make any kind of mathematical induction with respect to that and then lastly by way of example the prosecutors questions and statements during the selection process working backwards from five up there was nothing that was stated by mr mcgill during the questioning of the been every persons that would better sense than to do something like that obviously so then in this case working up a pattern of strikes against like jurors in a particular barry i want to show that other than the fact that you had ten to fifteen against blacks  and only a victim preamps and well we and we know that there were we know from which there were a total thirty nine strikes and we know twenty five white people only five were struck and if you do the math which we did in the first brief so that's twenty percent as compared let's say to two thirds of african americans and if you do the math a little bit further which we did in our initial brief last july for united you start with forty five right we started yes there would be it would be african americans who struck at a ten times higher rate now now now that that was one of our figure fourteen let's change the fifteen so it's going to be lower let's let's say eight or nine times higher but still that's a it seems like a significant well if you look at that i could difference but to be more simplistic with that get because we don't know necessarily what the what the six or if you say to forty eight seventy was the you're saying that and what else what plus that leads you to believe that there's a prima facia case well i would like to go back to the training tape because in that training tape which has been judicially dealt with so it's not just something out that never neverland i mean it's  the prosecutor who's doing this training session we talked about strike them because they're black and that's kind of or we'll talk about his office well they're black i've got to get rid of them again those are his words best jury all  jury and then he made a comment a little later and this is independence before this court you're reading from the mcmahon transcript yes and then you talk about it being the worst time of the ages but he also said that you know your goal is to win you you want blacks on juries you're hoping for blacks from certain areas of the country you're hoping hoping for over black men from the south it would be his preferred yes yes  but so how much does that really help you why i think it helps enormously want to prosecutor says you want to get a read for black people and there are predominantly it appeared to be that's what he was discriminatory manner manner regarding african americans then what does that mean how do you invest in made a lot but but but again if you put it in the mix i submit your honor that it does it is of great consequence how do we know that maybe fifty percent or maybe sixty six percent of that area were black we don't know that we can look at the general population just assume that i can't look we've got a look i know you understand and i'm what does this ten to fifteen mean when you you can't relate it to anything that would be of a significance it's a number but it doesn't prove anything if you don't know what percentage of the potentials were were black to the strike in the first place right all we know is that he used ten to fifteen to strike african americans in only five or twenty five of the strike white people now i agree we do not have the large number but i do and i may be totally wrong  twenty but every five twenty i'm sorry it was five five or twenty five strong twenty twenty percent is what we came up with you only have twenty preamps but he struck five a twenty five and he struck ten for cause we know he's a toy strikes but you only get twenty preamps right yes but he use five of the twenty now he has fifteen altogether exactly exactly five boys and ten were  black yes yes but but you don't you can't relate what if the jury was one third white and two thirds black his strikes then would correlate precisely with the even every without knowing what venire was you can't take any significance from the percentage of stripes of whites or blacks as a matter of fact if there were more black some of the neary than whites you would have to say he's discriminating against than the victim and that's clearly the case here exactly yes you are yes and this case also was the atmosphere swirling around the trial was  it well maybe that a prosecutor wants the same racial composition as the defendant that's it doesn't speak of that being a factor proving a prime aphasia case that is correct your honor but the fact that the defendant and the victim were of different races does not help you get a prime aphasia case fart i disagree with all respect with that i think it does end up at seven if you have a african american defendant and a white seat in our vice versa that in of self is meaningless you have to look at the bigger picture if i may address some things some more things the question was asked about comments this is somewhat of a next step now no that would have to be there was no finding apart from it basic case at that point and the burden certainly was not on the defense of the region but what would the questioning of mr mcgill have been on where he put on the stand at the was  dealing with today is and that's racial composition in trying to nail some of that down maybe they would have gotten into that i would i would assume or what and what do you mr mcgill mr prosser former prosecutor in the case what do you remember about that how do you help or help us what do you have a new file point you had the opportunity to try to put that some of that evidence out there and you passed it by what the attorneys did in this is nine hundred ninety five been a lot of decisions since  a lot of water on the dam since then but what the attorneys did in the focus was and they reached a stipulation to identify two more strikes who were african american by the prosecution which brought it up from the eight to ten and and that seemed to this seemed to be that everybody felt that ok that's what the courts need right but the question this morning obviously replaced that's not correct but the court at that time the situation that existed was that no problem they face a case had been found so there was no reason to go to the second stage correct wasn't why would not the burden had been on the defendant titian or at that point know that's what we had before that's what i have but you but he was subpoenaed he was there he could have been called commonwealth contends that it was not their duty or burden because no provocation case of been found at that point and that the failure to call him should rest on the defendant and not on the only question that could have been asked of him general question would have been is there any more beyond the four pages of one of your affidavit four corners you have a david that you remember about rate racial makeup actually and i mean i think that's it so so it may have been whistling in the wind at that point the commonwealth has said that we shouldn't even be getting to the merits of this because other circuits when confronted with the issue have said that unless the bats and claim is raised or something similar to a batson claim is raised at the time i fly deer during the trial that the issue was over and you can't raise it later on the cases seem to hold it seems very consistent including with this court that that is not required i mean that there was no talking earlier about comments of the prosecutor and there are there is and i did swee did smith's somewhat of a comparative analysis only for probably face a case in our briefing and wise doesn't that proceed to the second step is to what the reasons were well normally you would think so but again this court i submit should look at the overall picture and what reasons what the prosecutor give me where they were was the prosecutor misleading giving misleading reasons they were asking about people who heard my client on the radio last african americans not white people and in fact were heard on in probably our nationally you know he would he was heard on more than just african american radio but not ask those questions  white people when they they they say that the reason an african american person was struck was because of a hearing bob in fact this person said wayne williams as long as i have my hearing aid up and it's works fine i can hear will they accept a white person who could not do well to go did you ever hear the defendant on the radio she said her answer was no but he said the reason he struck it was because she listened to the defendant on the radio i can just again the part of the overall picture of of  yes i certainly submit we have i would like to point out in my time's up but i would i would like to say that mr burns has made reference to mr jackson being on the radio now unless i'm missing something i have not seen that actually proved intentional discrimination in the exercise of print three challenges the question before us today is whether or not he's proven an inference of discrimination whether in the words of this court there is a reason to believe that discrimination maybe at work i think believes that mr abu jamal has clearly met that standard that not onerous standards set forth by the supreme court i want to pick up though on some of the questions that your honor supposed both counsel for the commonwealth and counsel for mr abu jamal and starting with the commonwealth's argument that mr a contemporaneous objection is a substantive requirement for a batson claim this of course is the first strongly indicate that contemporaneous objection is not required and i want to begin a little bit by talking about what happened in ford versus georgia also i think it was literally in your yes yes absolutely riley and wilson also do the same in ford versus georgia  process not withstanding the fact that that decision came after mr ford's trial the georgia supreme court applied it to him found that he did not raise a timely objection under this later law and it went to the united states supreme court on the question of whether or not you know mr mr ford's batson claim should be reviewed the united states supreme court said of course as just you've indicated that since the georgia rule didn't exist at the time of mr ford's trial it was an applicable because it wasn't firmly established in regular followed at the time of mr ford's default and so because of that the united states supreme court said well he gets to go on and litigate his bets and claim if a contemporaneous objection was a substantive constitutional requirement established by bats in the united states supreme court could have and should have at that point said notwithstanding the fact that this georgia rule isn't applicable to mr ford mr ford still can't live a gate this batson claim because he did not raise about some claim at the time of you know of his trial they could have absolutely applied and said listen before the georgia rule is out but this batson specifically says you require contemporaneous objection there was no contemporaneous objection and therefore you know mr ford you're out of you're out of here on this issue they didn't do that so i think forward is instructive in that regard in addition to the fact that what they did was deal with this process as a state procedural issue the way this court has consistently dealt with the timeliness issue in this in this matter i think it's also important to point out that the reasons animating the circuit decisions suggesting that you need a contemporaneous objection are in applicable here in this instance and one of the main reasons that the circuits have said you need a contemporaneous objection is they talk about the the impact of delay for example they say it's unfair you know the prosecutor doesn't remember you know what happened so many years ago during the time of the border proceedings of course we in this case are still at step one we have no idea whether or not we're in the position of saying we don't know what happened at the time of trial we've never had the opportunity to hear from the trial prosecutor to have him so much as say i don't remember what happened we haven't gotten to that place not only have we not gotten to that place to know whether or not the trial prosecutor remembers mr abu jamal has also i should say this circuit has also dealt with  numerous instances this concern about the impact of delay this circuit has a body of jurisprudence that says we know that you know when these batson cases go forward and they come to us many years after of war dear it is difficult to reconstruct and figure out what happened you know so many years ago and so in numerous cases this circuit has said we're still going to apply the three step process but we're what we're going to do is we're going to let you commonwealth if you get to the position of saying i don't remember what happened to rely on circumstantial evidence we can still reconstruct we can still go through the three step process but we can adapt you know to recognize the problems of the time delay and so that's something this circuit has repeatedly recognized and as done to address sort of the concern that has been raised by the other circuits with respect to the impact of delay i think it's also critical to point out with respect to this issue of delay but it's certainly not the fault of mr abu jamal that we have never heard from the trial prosecutor in this case mr abu jamal has been raising and living gating and claiming intentional discrimination interest like so one point they had a chance eleven and they settled on him correct what mr abu jamal was doing was attempting to show contrary to what the pennsylvania supreme court had said on direct appeal that all of the evidence in the record in this case as clearly  the petitioner was faced with that time was it was th why should he called the prosecutor and order to establish a fish yes i have two to having two answers to that question the first i think is miller is instructive on this point i will read from them the defendant must make a prime official showing that a peremptory challenge has been exercised on the basis of race second if that showing has been made the prosecution must offer a race neutral basis for off done all the way through the proceedings in this matter that the entire record of evidence showed a crime a face a case of discrimination and it is mr i would miles position it is the legal defense funds position that all of the evidence that was before the state court really shows that mr abu jamal established there was unquestionably an and an inference of discrimination unquestionably reason to believe that discrimination is a work and i think we have to be really it's really critical that we focus on the fact that what we're talking about is reason to believe discrimination was at work not actual proven discrimination occurred but we're talking about a smoke so i'm not fighting him to to attend the you are a not qualified why didn't they call  the record said mr i would you all you're correct you have established a time a face a a case discrimination they wanted to make sure he was available to the commonwealth at the time of the proceedings so that the commonwealth could present him to to offer  bill that my that's strange credibility a little bit well i think no matter what why they subpoenaed him doesn't really matter ultimately i think there are aboriginal has presented at least thirteen reasons why there was a prime aphasia case of discrimination presented in this case at least thirteen different reasons why there was a prime official case of discrimination the first is and that's been discussed repeatedly the evidence of the number of strikes i just want to clear up a few of the issues that were discussed you may be the kind of the fifty well what is your response to are of the position of heard from the commonwealth that doesn't prove anything if you don't know what percentage of those ok are in the narrative might it be discriminated against once well they have a several answers i want to say that first the ten to fourteen i want to clear up the ten to fourteen in ten to fifteen distinction the prosecutor struck ten of fourteen available african americans he used ten fifteen of his total number of strikes against blacks he used fifteen total strikes five against whites ten against blacks he had twenty five or on used so it is ten strikes african americans against him the number of the fifteen that he used there were fourteen african americans available to be stricken he used ten of fourteen he struck ten of fourteen african americans so i just want to clarify struck i thought that's what we didn't know because we didn't really have know the number of african americans who were on the burner repairable right there were actually panels that were brought in right just one step at a time that's of the next point i was going to make is that the record and i think it's throughout the briefs establishes the evidence that we need it is in the border transcripts it is in the affidavits on direct appeal it is in the p c r a proceeding stipulation i throughout the record the evidence that's required and i would just with respect to the question that's repeatedly been asked about what the numbers were on the veneer i just point out that this circuit and holloway specifically said that why although the number of blacks in a veneer and i will quote this circuit further supports the prime aphasia case showing it is by no means necessary to establish a prime aphasia showing under batson given other evidence in the record and that's our position given the other evidence showing a suggestion of discrimination in the record even if the entire record of the new year and how the way you handle the strike ratio was eleven out of twelve which is pretty high yes yes it is yes but in this case it is not just the strike rate it is the strike rate the result the result or evidence of holloway yes and in this case there's also been a substantial amount of evidence there's the fact already pointed out by this court that mr abu jamal was of course an african american defendant charged with killing a white victim this court has credited that as a factor going to the prime official case and both simmons which is byron clemens  this is not only a case where it was just an african american defendant as counsel for mr abu jamal has noted this is an african american defendant with affiliations to the black panther party and the move organization this was a dissident who was a police  officer an african american man then was charged with the killing of a police officer and then holloway again this circuit said that that was a factor that's relevant to a prime official case determination and i would add that the mcmahon tape which i will also talk about in detail shortly  indicated mr mcmahon in that training tape indicated that that was a reason to strike african americans and in that training tape he also said that the lessons that he learned in the lessons that he was teaching that day on that tape were things that he had learned from other prosecutors in that office it was information that he was that was passed on to him the wisdom of the ages through the through the philadelphia district attorney's office so it's our position that that is relevant there is evidence discussed by c jamal about miss about the trial prosecutors questions and statements first of all counsel for the commonwealth says well the trial prosecutor said he wanted to get as much black representation as he could of course under bats that statement has no constitutional relevance and i will quote them a prosecutor cannot rebut the defendant's case by merely affirming by denying that he has discriminatory motive or affirming his good faith and making individual selections if these general assertions are accepted as rebutting and defend its prime official case the equal protection clause would be but of being an illusory requirement so we can set aside this is this the statement made by the trial prosecutor that he was he was not discriminating as it just doesn't have constitutional relevance so we put that aside we're left with the statement of the trial prosecutor that the reason he accepted a particular black juror was because she hated mr abu jamal so the suggestion that this african and african american juror had to noted in the years before about so much of course as in one nine hundred eighty six descript decision that the discriminatory use a peremptory challenges was and i will quote them widespread and common so this is going on this trial was going on at a time the only things that were presented during the evidence re proceedings was the stipulation as to the two additional jurors but the question that this court has to decide is whether or not the pencil would not have been the time to really get into that that there was very least that something was going on at that time of eighty two eighty three etc why wasn't there an attempt to try to develop that in ninety five of them that the p c of well that is that means that information certainly the supreme court's decision in batson and which i was going to move on to of course the pennsylvania supreme court decisions indicating that prosecutors in and around this time philadelphia prosecutors no they did not do all this type evidence re presentation no they did not however notwithstanding that fact again like i said we know we know that the supreme court and the pennsylvania supreme court united states court in the pennsylvania supreme court have noted that this is a time when discrimination against african americans in jury selection was going on unquestionably i just want to can quickly run through i know i'm running out of time  and i want to also remember to address council discussed counsel for the commonwealth discussed the fact that mr the trial counsel mr jackson had before the start of jury selection raised a concern about systematic exclusion of african  americans from from juries that was his experience and that of course by the way is another factor that we argue supports the prime aphasia calles the theme of the more absolutely now counsel for the commonwealth argues well the fact that he raised it before trial and then research again shows that there was actually no discrimination going on during the time of the border proceedings clearly that's not the case at the time that this trial was going on under pennsylvania law trial prosecutors were challenges against african americans but the only time you can state a case under swain is that when it's essentially total systematic exclusion across a number of cases here we have a situation where that's violent that's why i asked the question even was way beyond having been decided nine years later ninety five why wasn't there the attempt to show that there was a pattern across the board systematic well in this case we know that the trial prosecutor only want to try to show is adding on make that there is a systematic exclusion of blacks in capital cases in the philadelphia area yes that is both a certainly wasn't the burden it is not it was not and it is not the burden however again i haven't even been through the list that i you know the thirteen points that i think mr abu jamal has presented to this court what he had was a wealth of evidence demonstrating that there was a reason to believe that discrimination may have been at work what total so what evidence of total systemic exclusion have bolstered that case you know exponentially certainly did the evidence that he already had and was already in front of the state courts also do that yes he had already established the evidence that that was before the pennsylvania supreme court and on direct appeal and then certainly in post conviction state post conviction i see my time as a clearly established a crime a face a case of discrimination just quickly p c or a court for hearing on the mcmahon tape they did the same with respect to the ball this study the commonwealth on both in both instances argued in opposition to those motions suggesting that the evidence  both instances wasn't relevant in the car and the pennsylvania supreme court ultimately did not accept the information to the record so the state courts had the opportunity that they were that the federal courts are required to give them to review and have the opportunity to pass on the be well the fact that mr mcgill said that he wanted black people who jury the fact that there was never any accusation during voir dire that mr mcgill was discriminating the fact that mr mcgill accepted at least four black people that we know well to be on the journey and are just doing one of the time are they relevant factors for us to consider or irrelevant factors i mean it seems to me for example the fact that the defense strikes blacks we know from brinson is an irrelevant factor the fact that the prosecutor did not use all of his strikes on characterization of brinson about irrelevance in brinson the fact that there were ninety one percent of the structure used against black people and the prosecutor essentially admitted there was a pattern of strikes out considerations to the extent that they were present so brinson doesn't say that these things are relevant they said that under the facts of that case they really didn't predominate they weren't entitled to very much weight a quote from brinson as a prosecutor may violate bats and even if the prosecutor passes up the opportunity to strike some african american jurors that's entirely true but then that's a statement that refers to the end of the process in holloway itself this court will listen to what do you mean by that the end of the process it's the burden of shifted it's not really helpful to the prosecution to say well the burden shifts to me i can't rebut that being a classic case but i did you know allow black people on the jury and so that you count in my favor at that point the batson process would not result in a good outcome for the prosecution because at that point it would be you to weigh the burden shifting effect would have taken place already here we're at a point to beginning the process w holloway itself the court listed five factors that should be considered in determining whether or not it was a prima facie case the first one of these is the number of racial group members in the panel is something that was never established in this case in the chinchilla case the court hel this is the ninth circuit that excepting minority members to be on the jury is something that undercuts a prima facie case and these are the kind of factors that we have in this case we have it was referenced the statement by the prosecutor that he wanted black people on the jury it was argued is constitutionally irrelevant that is really an incorrect statement of the law in this case there was no accusation that the prosecutor had to try to rebut no one at the time he said this had accused him of racial discrimination and so this is an instance in which there's been a prima facie case established and the burden has shifted to the prosecution and then the prosecution simply says as a pro to imagine well i had no your self serving statement though well is a soul searching statement when there's been no objection and there's been no assertion by the defense despite every opportunity despite the claim now that it the opposite of what is being argued because even though we know from the statement that mr jackson was on the lookout for any substance that he could use to show that there was any kind of racial discrimination he never actually made any kind of accusation against the prosecutor and i disagree with counsel's a characterization of times i think what he's saying is that this case is so charged that i have a concern that there will be there may be a discrimination against particular jurors who are black is not correct no i think he simply said that he wanted black people in the jury and but he also didn't want black qualified black people excluded from the jury i think that's a valid statement under any circumstances was really saying the same thing but he had a concern that there was there there could be a problem and he wanted to be able to do a survey correct it's true that mr jackson wanted to have a survey but it was never alleged that the purpose of the survey was to prevent or defeat any effort by the prosecution to strike back people because of their race that was never argued by the the the defense in his effort to have the questionnaire used it's typically removed from  as argued in the brief repeatedly it's been said that the defense at the time of y dear was unable to make an objection because baton didn't exist yet but swain did sway would have been enough under the cases we rely on from other circuits talking about the time he general but according to the briefs filed by i would you know all there supposedly were very good grounds for making us wait objection yet not even to sway an objection was raised it was never alleged at any point during the year that any kind of racial discrimination was taking place in this case now oh by the way the  challenges in a criminal case that has been the custom in the tradition of the district attorney's office to strike each and every black juror that comes up preemptively it has been my experience as i've been practicing law as well as experience of the defense by the majority of the fence far that that occurs when he is bringing in front and center he's not making his way objection for two reasons first he's making a statement three months before the trial begins and he has nothing to respond with in terms of a factual basis for the assertion when the judge asked him is i'm concerned that persons who otherwise might be qualified will be excluded preempt really simply because they are of a particular race but he never actually claims that that actually is happening in the water this case he never claims challenged by the petitioner and so the fact that he may had after the fact said something in an affidavit that was attached to a brief want to peel which by the way doesn't constitute a record for purposes of review in state court were the reasons that would have been given by mr mcgill how did that of how how to judge john know about that there was a footnote in the state direct appeal opinion which referred to reasons that the state court believed were apparent on the face of the record for these strikes these were not reasons that were given by mr mcgill at any time right there was a resumption i don't know how they got in the state supreme court said we're account reasons not reasons being given for the proposition that it was yes the petitioners burden at all times to produce evidence to support his claim and that would certainly include evidence pertaining to the latter  entitled to present references been made to the composition of the near and i want to finish the quote of united states versus parson the tenth circuit which said that by itself the number of challenges against members of particular races insufficient to establish a facie case that quote concludes the number takes on meaning only in the context of other information such as the racial composition of the veneer and has been pointed out repeatedly the racial composition of the veneer is not something that we have here now when we mention that of racial group members in the veneer so that continues to be a valid consideration aren't those those are exemplars are they not i mean those are some of the things you can look at in order to try to deal with the third step of the pr test i mean and as i said other cases of added others such as riley b taylor adding the fact that you can look at a pattern in other cases well the point is that all the facts and circumstances are open to consideration with respect to the first to my understanding is that at least some of the circuits insisted that the exclusion ratio be established at the provocation stage and not a later stage in my correct and i think it's certainly something that you need to stablish but the question is whether or not that's a visionary of itself and i think the cases agree that it's not sufficient all by itself except perhaps in a case like branson where there's a ninety one percent level which is not reached here yet by exclusion factor i mean the comparison between the strike ratio and the percentage of minorities in me and and here the part of the record where mr jackson goes on the radio and says that blacks are the euro because they're against capital punishment that's it june fifteenth ninety two page eight against whites or twelve the twenty preamps were used for black persons i believe it was twelve unlike one and then and then as i understand it there were only fourteen available blacks so that's that explains the twelve and fourteen in the twelve and twenty row in this case we don't know how many were available that's right yes what we do know is that twelve ten to fifteen which is sixty six percent which is greater than twelve twenty correct right i mean but the question is is it going to do with my math that we do know well if you're here it would be ten to twenty if you compare the number of uses as we never use file you never use five right but i thought in hard there were fourteen available and twelve of those fourteen were primped early challenge by the prosecution we don't know how many were a vailable here we just know of the preamps that could be used ten of fifteen that were used were used against blacks of the number used not of the number that was available and the reason a number of black people be struck is of consideration is because we don't know whether the number of strikes use is high or low compared with the number of people who are available in the near to be struck want to get back just for a moment of poor versus georgia in that case it was conceded by the state that there was a timely objection with respect to bass in the supreme court of united states has never  rhetorical question also the delta study we jacked in my recalled by the lower court because it was eighty three to ninety three and this is an eighty two trial so suddenly i guess we're supposed to believe that things change in a three from eight to what i ask is this it seems like we have bookends here we have case after case after case in race race  discrimination was at work by the death quick tourney's office during this period which included the timeless trial nine hundred eighty two and my question is are we to believe today that this highly charged case of a black defendant accused of killing a white police officer with all those things we've mentioned moving the black panther party etc etc are we to believe but this is the exception to the rule of the cases during this period of course things have changed in the district attorney's office is very different today but we're talking about a different era a different mindset and it seems like we have a stablished that there is a before this court evidence of a prime we face a case that there seemed to be evidence indicating that discrimination was at work and i just i dismissed that all the cases that have come through the court system here capital