you may please the court counsel abramson be after the appellant will smith i will address the twenty two fifty four d two issues on the intellectual disability claim but i'd like to start with the batson issue in light of this court grant of the certificate of appeal ability on babson as the court knows the prosecutor at trial used fourteen of his fifteen strikes to eliminate women from the jury panel the alabama court of a criminal  and the district court both agreed that smith is satisfied prongs wanted to j b in babson there's a prime aphasia case of discrimination that shifts the burden of proof to the prosecutor but here if one looks at the court of criminal appeals opinion one sees that the trial court essentially vouched for the prosecutors saying well i've known this man for a long time he's not one who is prone to strike minorities when the question is as judge c pointed out in the court of appeals in alabama that women are not minorities and he was striking women a single discriminatory strike supports a finding of the j b babson that violation and that mr evers i have a question exactly what you're talking about but if you'll indulge me so i notice that at the alabama courts and judge proctor and the district corps both found that there was nobody on the venire named in to potentially be on the jury all right in terms of actual jurors and strikes there was no one named johnson but just if this was something it was obviously it was an error in transcription by the court reporter but what's interesting is i mean it's a reasonable error given the victim's name was johnson and they were talking about one of the witnesses was going to be the when the victim's brother was a police officer was going to be a witness and so but what's interesting here is the district court concluded as a matter fact that there was a person on the jury we don't know his name but it was a male conclude it was a male juror and that who was a member of a church board and the prosecutor's only reasons for strikes here for the women was well they're involved in church activities they have some sort of volunteer and church activity there was no detailed for dear of these people to say well fine you're in a church activity but what are your religious beliefs what's really going on here and i think the fact that the district court has concluded even though the name is johnson we all know is eroni is the district court concluded that there was a juror not struck by the prosecution who was a male who was on the church board and when you do the miller miller l two side by side comparison four women strikes th prosecutor says oh all because of church activities male ends up on the jury member of the church  they to what extent do you think it's relevant that or not relevant that women ended up on the jury your honor i would contend that it is not relevant although the district court did look to that is not relevant at all i mean i'm not saying conclusive but it's not relevant at all you know i disagree i mean there is obviously look at a lot of factors and the fact that there were women on the jury i think isn't it is a factor here but ultimately batson is talking about the particular strikes and here where you know no doubt but you're also trying to figure out with the whole mosaic of evidence whether or not the prosecution improperly structure is based  on something that is illegitimate or improper and the fact that some women remained on the jury that this record sought in the alabama court of criminal appeals thought was at least important i think it's a factor they be keep can be considered but i think it will but weighs against it is here you have fourteen and fifteen strikes by the prosecution or women prosecutor ran out of strikes so you had to end up with some women on the jury and the prosecutor do we know from the record i haven't looked this deep do we know whether or not those women were seated because the prosecution ran out of strikes or were they seated before while the prosecution was a exercising strikes i think that that seems to me to be important if if it turns out that women sat on the jury but only because maybe only because the prosecution ran out of peremptory and couldn't strike more women that might be telling on the other hand if women were being seated without the prosecution trying to exercise strikes and then struck women off and on that might be different at least a little bit different i think the way the process worked here was the jurors probably put into the box and there were a number of people so you had male female black white and one latino woman and they were all in there and then the judge said ok defense prosecution tell me your strikes and so defense sad i strike this number then prosecution i strike this number defense this number and they went back and forth one after the other and so you're eliminating people from that and up to fifteen you have the prosecution using fourteen and it's in it's not just the four you know we have these withstanding religious i can consider this case fairly and impartially and not allow my religious views to fear with my decision there was no for no your honor because there was no further for dear by the prosecutor i mean had the prosecutor followed up and i think this is made point is made in one of the cases and the prosecutor followed up and said mrs x where you used you are a volunteer at the church but the questions were asked by the fence that the fence attorney and the prosecutor right correct that was one question by the defense attorney and that question was it was a sort of a catch up he said has anyone served as a volunteer coaching church supervisory type situation maybe sunday school teacher things of that nature and this is what prompted these you also have juror number ninety nine mr hall ultimately a defense strike didn't make it on to the juror he was a y m c a football coach and the district court said well this isn't analogous to a volunteer at a church and i would say well wait a minute both about it's a volunteer being a coach at a christian organization young men christian association and the prosecutor never asked any questions of him or others about their religious beliefs and the prosecutor was doing not the judge coming in and vouching for the prosecutor here and second i believe i don't want to misstate but i believe that his statements related to the fact that the prosecutor was black and he said well i know this man would not strike minorities he wasn't talking about women in the strikes of the women at that point and in addition you've got another two you've got juror ramos who was struck because she was quote single and very very young well very very young the only evidence we have in the record is that she was a student at the university of alabama birmingham but the prosecutor asked no questions of the male jurors and or anyone about age that's just not in the record it ought going back to judge wilson's question you know you have let's think of a difference an area you have a trial judge who sees lawyers day in and day out for a number of years and that judge forms impressions correctly or incorrectly about the veracity the trustworthiness of lawyers who appear regularly before him or her and they decide instinctively whether or not they can stake something at face value or whether they've got it dig deeper and see what's really going on you're suggesting that can't be done or should well with that done in the appropriate way here was not done in the appropriate way here i think it's appropriate for a judge to comment on his relationship and his understanding of people but didn't and the prosecutor but here he's making this he's essentially vouching for this journey and it's on the question of gender not the question of race and similarly we've got perry number one ninety two she was struck because she was in a timed it even though the transcript if you go back to the transcript there's a mr gunther number ninety three who was considered to be almost is not even discussed by the district court although she is mentioned in the first dream man and i think what's critical here is when you have attended to jury vote in favor of capital the favor of the death penalty that is the minimum number of jurors necessary under alabama law in order to allow the judge to implement the death penalty so a batson violation or j b violation is a is a structural error and here it has a tremendous amount of significance want to get to the africans issue but the just before we leave this you understand there's a substantial amount of deference that is afforded to the trial judge and that dominick whether or not i think the state even admits that the first two elements of batson are met but in terms of the persuasiveness of the reason given by the state for striking the jury there is a lot of deference that's afforded to the trial judge and i guess before you get to the next issue how do you get around that standard that deference that we have to give the trial judge in determining that the reasons given were race neutral i think the way you get around it is with the mr johnson where you have the district court judge concluding that there was a juror on the panel male who was a member of his church board and so it just strikes in the face of what the prosecutor is saying now had the district court come out differently or the trial judge come out differently on that but that's u finding that the district court made it seems to me under d to so there's no difference between mr johnson and the and the other and the fourteen women who were stricken you know that that between my point is when you compared johnson to the four women who were stricken supposedly because they were volunteers at a church ok or that the that the prosecutor left mr johnson or that whatever that was on the piano i think we've got your argument there i'm going to talk about the atkins closure and so things are different now as a result of the supreme court's opinion and shoop versus hill now we can't say in the eleventh circuit now based on shoot versus hill that more or says texas can be applied more was not in effect at the time and we can see that more was not in effect at the time but at the day but it was remanded for consideration and thirty two already meant under i think more what more sad as it is and helpful to us is that the standard has changed because now you have to look at the medical condition you know it's the medical standards one needs to look at so i believe this court can find that it's retroactive based on that but i would focus the court's attention on the intellectual disability and two undisputed facts which we believe give us right relief under d to one undisputed fact is that the alabama courts found that mr smith scored sixty four on a properly administered i q test that was a inexplicably what the court decided was it's not going to consider sixty four it's only going to look at dr king's twenty seventy two because well that had a verbal portion which was consistent with the one other task that was a my point would be this you're talking about data points if i were here to take the temperature of this room and you said that you find me credible that i know how to take temperature which is what they found with dr sullivan and you say that i have a thermometer that works in other words court considered it but just resolved that against the other their i q scores that that's my point is that if if one is considering data you can't just rule it out you average it or alternatively the way you harmonize it you're happy to average it in order to to consider it well you have or you look at standard error measurement standard error measurement will allow you to harmon's go back to your i'm not sure that your example was on was a good one if you're taking the temperature of this room and you and your colleague are using the same machine to take the temperature of the room and you tell us the temperature sixty eight and he says the temperature is seventy two but it turns out that he or you used the measurement in one location in this courtroom and the other one used it in three locations isn't there a way to harmonize that testimony even though you are both using the same measurement the same machine the same calibration and to say well maybe where you took it it was sixty eight but where he took it he took it in three different places and it was seventy two and so although i'm considering the sixty eight it seems to me seventy two is the better reading of the temperature but i think in that case your honor what you're saying is i don't know what i'm doing taking the temperature i'm taking it in just one location of the other you don't know what you're doing but i'm trying to analogize it to the test that render sixty something score for your client and that was not a complete test right you know that it was a complete test dr selek and gave him a sixty five was a complete test and here you have the finding but i thought i thought you had said that it was missing part of the verbal component this was one of the tests that was given earlier by dr blackie where he came up with the seventy five for the verbal and what the local court said was well blocky seventy five matches with the seventy five verbal that dr king had so therefore i find that to be more reliable and my point is had the local court said dr sullivan is not credible dr sultan doesn't know what she's doing there's something wrong with her task it can't come out to sixty four that would be one thing but but that's not what they said what she's credible everyone agreed dr king on cross examination i asked him do you have any problems with dr sullivan stuffed no looks good to me so it wasn't a situation where dr king says dr selek and stick in the temperature over there in the corner she needs to come here in the middle and so you have a situation you have this fact that it seems to me that you can't disregard that fact i understood i understand the argument of the hard part of bell that for  your expert dr c silk and said your client's not intellectually disable then she will die yes dr seller can ultimately sad that based on she had given him a number of different tests and some tests he did fairly well and she said well looking at all this i find that he's not mentally retarded our answer to that is is that at bottom what the atkins perkins test is it's a three prong test we have to hit below seventy and argument prong on that with the sixty four if you average it or if you consider standard hour care measurement if you if you give some credence to that in some way it moves dr king's number down below seventy and we need the first prong only by disregarding it as the state contends should be done here so is one of way the average new one two point seven so you can not be mentally retarded but still be intellectually disabled within the meaning of the perkins test that's that's the argument you're making or are that is our position your honor yes because there's a difference between them a medical conclusion then a legal conclusion exactly and when you get to the adaptive deficit's what happened is the local court the rule thirty two court said and dr king and dr sullivan all said looking at tests mark this man has deficit it has is has is impaired in a number of different areas and found that dr king the two medical experts neither one of them went and looked at the trial transcript which is what the rule thirty two court it what the rule thirty two court did was say well ok i agree there are deficits here as shown based on testing but i'm going to look at the trial transcript because in there i can cherry pick information that says oh smith was planning this and he therefore has adaptive strengths for words which your strongest argument with regard to the next pr we would say that because we have a we have clear findings by the alabama courts we have a we have a finding by the alabama in court that and by the two experts the based on test data that there are adaptive deficits and that he needs the realize that it is in the transcript there's a finding that he did not realize that when you use an a t m card because the transcript also shows he never had one that one is videotaped he's shown videotape for four minutes and he's wearing distinctive and he's wearing a n f l one of these jackets that has a raiders name on it so so this isn't someone who's covered his face when he's doing this and then his cover up attempt was he said oh i went to burn the car to get rid of the fingerprints have to me that's just not it that that contrasts dramatically from the stallworth case and the perkins case where in those cases neither one of those cases says you look at adaptive strengths but they just say by the way you know perkins was married for ten years stallworth had a job as a stonemason smith never had a full time job smith had part time he lived at home was never married doesn't have a driver's license i mean we're talking about person someone here who is truly intellectually disabled now the question is obviously do they do we hit low enough on the the legal tast and we think we do and i think that what more i think tells us is that no longer are we going to look just at the  significantly disabled we're relying on more right well i think that your honor the medical standards look at now because the medical standards say we don't look at adaptive strengths we only look at adaptive deficit's regardless of whether we rely on more i think what more is saying is that there are these that you don't look to strengths that's not the way the medical community operates and here the trial judge that the rule thirty two judge we think went off the rails when he decided to do that the only way he  no expert in this case not dr karen salak and not dr glenn king the state's expert found that he had sufficient limitations and adept at functioning which is the test under alabama law actually significant limitations and karen salak and dr karen's allegan did find they had a sixty four i q but she found that he's not and likely disabled in large part because of protesting about adaptive functioning thought she said that he's not mentally retarded that was the term at the time your honor this was back in two thousand and two thousand and nine and as the u s supreme court said mental retardation and like full disability describe the same phenomenon high school or college level i'll just give you a couple quick examples math calculation at eleven point zero grade level basic reading skills at nine point eight grade level academic skills ten point five math fluency twelve point nine spelling blows the roof off at thirteen point nine meaning he was spelling his college freshman and dr king administered the route for a wide range of treatment can i ask you a question about dr king's  two continuous years and he was not living i mean he was living at home but he gave his his mother his paycheck if again for continuous for two years and said take whatever you need out of his paycheck and then give whatever's left to me so i can buy cigarettes and what not what that and then he lost that job because he got into drugs and alcohol got over that and attained another job so his record of it at the functioning is rather let me tell you the concern that i have with the decision by the alabama courts and i think alabama even admits that he showed evidence of adaptive deficit's i think he did well why didn't the why doesn't the analysis stop there and what they all bama courts did is that it weighed strengths against deficit's and you know concluded that the fact that he was able to cover up his crime outweighed those adaptive deficit's which completely disregards the app at that deficit so i don't understand how the alabama overall conclusion you can't just say he's got that deficit's and that's our standard and then just disregard the i would respectfully disagree with your honor the question is does he have significant limitations or depth of functioning talks about the the you know intentional killing is apparently well thought out attempts to cover up the crime ways again it's the petitioner in relation to his adaptive functioning requirement and that's exactly what moore says you can't do right and that's exactly what ships as this court can do by looking at war well and setting that aside i mean it just i know except for you that i mean today with either more doesn't apply here but i mean it's assumed that the rule thirty two court was deciding this today they couldn't do that could they i mean that would be error for them to do exactly what they did here i think in a sense it own adaptive functioning tests which with not only the woodcock johnson which i've already discussed but also the sabbar of the scales of independent behavior revise what she had ministered to his brother and to his mother and she came out with that  find that those tests rose to the level of significant limitation i think i understand what she said but i think you and i agree that what the role terri thirty two court did in this case they could no longer do in the sure i agree fully with you your honor but but i think it's neither here nor there and this case because again we have all clinicians saying that he's not intellectually disabled let's set aside more versus claim of intellectual disability consistent with medical standards right well i have to refer this court to ferguson ferguson says to be diagnosed as mentally retarded an offender must have significant limitations in adaptive functioning so some deficits or some difficulties is not enough under alabama law it has to be significant limitations if the record supports significant limitations in and  then alabama fails to follow that standard why isn't that an unreasonable application of that comes you cannot set your standards and then not follow them can you i guess you pardon me for quoting very briefly the corporal appeals found the greater weight of the evidence and the case that although he suffers some mental deficiencies so some they want they did not rise to the level at which an impartial mind would conclude from the evidence he was mentally retarded because there was evidence that he attempted to cover up his crime and there was evidence that he worked for two years and gave his mother his paycheck and there was evidence that all of the clinicians thought he was not another retarded problem  alabama courts did not say that i didn't say that i'm reading the court of criminal appeals decision and you're saying that they didn't say that so i'm trying to find some clear did the neuropsychological examination he didn't do an intellectual examination and he didn't have an opinion one way or the other as to whether smith is intellectually disabled or not but dr marston indicated this misstep since would cause him quote some difficulty in following instructions and retaining information so as to cause him some sort cummings as relates to school work or school or work activities i guess the problem that i have is that when i go to the one twelve of the southern reporter alabama court of criminal appeals decision i don't have all of these clear findings that would support the fact that there's no overall deficit and adaptive behavior other than the fact that he attempted to cover up his crime and that he did work for two years and made money and gave it to his mother if there are no more questions on ak and i'd be happy to move on to  t and bateson if that would be appropriate first of all the district court in evaluating this claim found that of course the state had the you know the problems once you had been met of course but found just as an observation of the prime facie case was weak and it did that for several reasons three reasons in fact first five women and seven men served on the jury but that but if if your colleague is correct about the way jurors were struck that may mean nothing a dozen the circuit your honor there's a case  leaver's i know but it is i understand that's why i was asking him whether it matters who sat on the jury and i think it does matter i think it is relevant but how the jury selection process takes place determines whether or not that's relevant in other words imagine a scenario where the first fifteen people in the box are women certainly ok certainly and the prosecution exercises every single peremptory strike against a woman the first fifteen women are gone the next twelve who stand up right are six women and six men so six women sit on the jury but that level of strength doesn't tell you anything about motivation or discriminatory intent because it was just a matter of happenstance and chance that women ultimately got to sit on the jury so my question to you is the same as it was to your colleague how did the jury selection in this case take place what was the method of striking the method of striking and that's crucial your honor it was each side had fourteen or fifteen strikes rather and they just gave off a number and they went back and forth there was nobody in the box there was being it was sixty seven one forty two one fifty five eighty four and so on and so forth how many were in the box the entire all i was trying to do the math myself but i believe there were forty two people in general all the whole venire members and like then it doesn't then it doesn't tell you much whereas if you're striking all the women and you're out of strikes and some women happened to sit doesn't tell you were you were being benevolent tells you something when the defense was striking all the men so except that we don't have a batson a reverse batson plane here by the state fourteen for the private face your purposes i understand that with regards to the ultimate determination of discriminatory intent that's a factual finding and you get that deference on top of that but on the prime of facia case how can striking fourteen out of fifteen women constitute a weak prime a facia case i'd like to i'd like to know that the district court found that just by looking at this court's precedent and i'd like to explain why that's correct w cite one case out of the top of my head where twenty one african americans were struck out of twenty one strikes and there were nine african americans left over that's leavers commissioner alabama department of corrections and the court and  lisa yeah wow that looks pretty bad you're striking use twenty one strikes against all twenty one african americans but there are nine african americans left on the jury and it said that the prime aphasia case evaluation or the ultimate determination of discriminatory intent was how it looks at the prime aphasia case and determination and this is what the district court judge proctor did here and he just looks and it's not defended it but he said the fact that seven men and five women served here  rather than five but the prosecutor struck juror who would have been the twelfth that you're in the prosecutor's notes striking this person because she's a discriminatory as dragons women he did against african americans we did not implement he also did not suggest that there was any reason why the state would want to strike women in this particular case or that there was some kind of significant sensitivity as you or any any reason why  if you say that mr smith was striking men isn't the obvious inference that mr smith thought that men would be harsher toward him and you thought that women would be more favorable to him if all of you were trying to get a gender clean jury for your purposes well that could be a logical enough and for what other logical inference could there possibly be but again you're saying he struck all the men  men he did it it's right along the way he didn't strike and the prosecutor didn't strike all the women he left one woman on with this peremptory but sometimes numbers don't tell you anything sometimes numbers begin to tell you a pretty good story sure but if you look at the problem in the district court was the comparative they were brought up with these four any again it's only four it's not fourteen it's four religious affiliations yours and the three he was he explained himself he was the youth y m c a football team coach for one season then he was moving on to be a basketball youth coach so there was no end for answer indication that he had any religious affiliation or susceptibility to the pleased that the defense counsel did in fact make the defense counsel actually threaten the jury with hell if they didn't give this guy life without parole susceptibility to pleas for mercy granted in the christian faith and then that leaves us all with mr so he left all of his religious beliefs at the door once he finished coaching at the law and decided to go coaching other youth he didn't indicate that he had any religious beliefs he didn't do it women indicate that they had religious beliefs the four women discrimination and failing to strike a woman is really not evidence of gender discrimination the second compared or was john hall the y m c a football team now basketball team coach the third was the ever elusive mr johnson prosecutor thirty years ago i guess didn't see it that way that he didn't anyway back to mr johnson because he was discussed by my coach but my but my friend here smith has never shown much less asserted which sure to this person and never actually no explanation no effort to explain that and still to this day here we are on the eleventh circuit and there's mr johnson here and we don't know who he was for i mean just why not they were on another jury or there were multiple juries going on that week and i know that from the board here because several of the women for example who were struck said that they couldn't serve on a criminal case and there was a civil code there was a civil to talking about the prosecutor's personal history with regards to certain types of strikes that are not issue here how does that play into the whole equation  the one who helped identify one of the jurors who was sleeping and he referred to some my notes that i observed her sleeping in being an attempt so i think that's kind of an education that the prosecutor and the judge had worked together before and had obviously been observing this jury and one more point they defend the prosecutor had put the judge and the defense counsel on notice about one of the jurors and said look she's not but that th judge can come up with his own reasons he's got to look at the prosecutor's reasons in the term and whether or not the prosecutors reasons are good or neutral you can come up with is he the judge and the prosecutor and come up with his own reasons i'm not aware of any case that says a judge can do that no no that's not what i meant to say and i think i said that wrongly what i meant to say was if his notes are in kids are consistent with what the prosecutor is saying the prosecutor saying this juror was an attentive she appeared to be sleeping and the this kind of thing and and he's an african american prosecutor so therefore he would not engage in gender discrimination that's not that's not the role of the trial judge and making a batson determination it please the court first your honor with regard to the deficit both dr selek and dr king has shown in the record found deficits in what's called use of community resources these are the skills for one to function in the community being able to shop get around etc both experts found that deficit both experts salak and king found deficits in self direction this is another one of the skills needed for independence responsibility starting completing tasks the be if you look back in the record what it shows as you go and you ask they ask questions of the brother and the mother saying and they're very facts specific is he able to perform hygiene does he take showers that they do this does he do that and then based on all this they come up with checking the boxes and saying here's what we find and in fact the dr king found that there were deficits in what's called the class called leisure skills these are for you know being able to interact with unable to address address alabamans argument because mr johnson said yes there were deficit's and adaptive behavior but the alabama court said they were not significant my point is that the it the significance comes it has to be more than one category that's what perkins is talking about and in fact it africans itself talks about secure right significant limitations in adaptive skills such as communication self care and self direction in other words you have to have more than one activity you more than one class is where you get significance it's not that in that one class that you necessarily  but they did find the deficit in more than one area based on the testing and this is where i think mr johnson was incorrect he said oh well they didn't none of the experts found it and that's my point the experts did find opposites in all these various that about the woodcock washburn test that's what dr sullivan get that's not an i q test and he did well on that test and that shows that smith wasn't wondering he did well on some tests and didn't do well on others but the key is it's the i q and to judge martin's question about the test the way this works is as i understand it again i'm not a statistician are psychologist but all of these tests are normed and then they're normed again and then they're normed again and so when you're looking at an i q of seventy two it's not as if i got eight seventy two on a math test what it is is it's saying i took a number of different tasks and then the experts all compare those to various norms and then from all that say well i fall into this category and therefore i'm going to assign a seventy two and that's why sometimes it's not an average you know those two numbers can get you below with that but with regard to with with regard to the affidavit point of that  mr smith worked for two years i think that the fact is that he worked it was a part time job he was unable to hold on to it and the record shows that it was in one thousand nine hundred seven which is more than four years before when the crime here crime here occurred the reality is that mr smith as the record shows he had a difficult childhood he had difficulties in terms of keeping a job he was living at home and i think other thing that sex although this crime  horrific this is the first contact mr smith had with the criminal justice system unlike these other when these cases that are discussed by the appellate court in alabama where ferguson and stalwart were these people are career criminals on the court is saying wait a minute this is someone who knows how to plan smith was not that way he had one prior according to the report with regard to the mitigating circumstances he apparently had zero action for trespass where he had to pay a fine other than that there were no prior arrests and again not to take away that this crime was not horrific my point is is that this situation was the first time smith was involved and second i don't think smith can be construed as i said before can be considered to have been planned full when he end of this argument doesn't have any effect whatsoever on issues in this case or argument that you're making now about that the fact that this was his cases where we go beyond just the test to see who these people are and what they do and in those cases you're looking at people who are involved in a series of crimes over a number of years who like for example ferguson was one with them was a stonemason these are all discussed data breach for a number of years and that's not smit that's not what this situation is so i believe that it's relevant to the issue of this rule thirty two court going beyond to look to these other factors as far as the strikes and to judge jordan's question the way i understand it there is a if you go back into the record you'll see there's actually a box there some papers of the judges filled in where they put the the jurors in those particular places and then when two  jurors were dismissed by agreement they moved others in and put them in place for those so when the strikes are being made they're focused on that particular group and what they have in the way the strikes right at this so you're striking in the box ground female again down the list the state taking out all the women now dr i'm sorry judge proctor said that we had a week crime aphasia case but hit that part of that weakness was based on the final jury composition of saying that it was five and seven and our position is that that does not that is that it while relevant of course as a fact it's not it issue here because in this case you're looking at fourteen to fifteen strikes and you're saying trying to understand what did this prosecutor do and you have to look at the side by side analysis that's why ultimately when we look at the mr johnson you have a finding by the district court that mr johnson sat on the jury whoever that was and that he was a member of the board of his church and that stands in stark contrast to the state saying well the reason i got rid of these four women was because they were volunteers at church again you have mr hall who was not struck was the volunteer at the y m c a and you have this perry in this ramos who i mentioned in arbor and the state is not discussed so you have a whole series of strikes here where we do a side by side comparison given the tend to  verdict here the question of batson is that of extreme importance to this particular case we would ask that the court find in favor of mr smith on the batson issue in on the intellectual disability question that the