it was cited during the evidence with proceedings and i think it would be useful to see with the courts i'd like today to briefly address our argument that the  isn't simply a way the courts have set up to find the ultimate thing they want to find which is the prosecutor operating and challenging people on the basis of rights and that's really what we have work in hernandez type situation i think there's a great danger and that is you can insulate a bad prima facie ruling and then you end up in a clearly erroneous type of review which is a lot harder to get any relief  a juror one particular juror who had had problems that what the prosecutor consider were problems she had two very close relatives who get robbed and murdered within a couple years before trial to separate incidents in one case  you know yeah you know like just they did it was fair but the prosecutor on the record before asking the question said you know the words are using are going to appear on the record and you're going to say that you don't have a problem but your facial expression confused by his response because earlier he had pointed out that he thought she didn't understand and i think this is all reflected in the record that she didn't understand the nature of the charges and i thought that was borne out by the record i think what was i don't know i'm paraphrasing her words i don't know it wasn't like attempted murder it had a firearm and then that the trial judge said something the fact there was a robbery and she said no it's like an argument and so the prosecutors explanation which i don't think is unreasonable in light of that was you know she's got a case involving a firearm she's not clear what it was and she says it was two hundred an argument that what you charges involving firearm now i don't think it's unreasonable for prosecutors say you know here's a juror who was involved in a hung jury over and argument which led to serious charges involving a firearm what did she mean by that was hard to tell for sure but as the prosecutor i think he was more than entitled to say you know there's a potential problem with this juror based on her confusion over the charges and the possibility that she's minimizing what they were and the suggestion that there were overcharge criticizing the police when it was just an elm grounds from our the prosecutor's yeah i think that he was but yet i'm only concerned with these two perspective jurors based on the responses they gave that they might have had some sort to those at all and the trial court certainly did not like the question that was asked i think that's clear from the record as well but he didn't find that there was a problem with respect to just don't come because he just said no there's no showing and what was the that's in motion based on at the time it was after the striking of the second african americans are of the prosecutor had asked the question it almost threatens to this preliminary question threads that eclipsed the real question which art what are the facts regarding the ultimate question of discrimination and magistrate block who actually heard the testimony decided the facts were that the reasons offered war pretextual you very good reasons for saying that and he's the one who saw the demeanor of the prosecutor h testify and asked him probing questions and heard his responses ultimately backs and as all the members of the court know it is a question that rests on credibility and factual issues and we have a hearing now and the magistrate in the district court found step three intentional discrimination have been proven by mr thomas i don't question is greatly over emphasized and it's done for a reason and the reason is because ultimately this is lost in the eye only court that heard the facts regarding this issue and that's true and i think it should turn on that because even in the state court who found there was no crime aphasia case in my view because of a misunderstanding of vaccines law on that balance and was reiterated in two thousand and three in military health but that the judge himself the state judge in the trial observateur regarding the question the district attorney says well i think put it out on the table is the right thing to do and i've done it i've done it before and th misperception of the evidence it's not just a low it's not just a statistic based on a low number of sample two out of three of the prepress are exercise against african americans but that's not all there is there is disparate questioning court already observed this question is asked of an african american woman and nobody else and we understand from statements made at the sidebar and now that it's not the first time he singled out a african american juror to ask this question he's done it before and certainly pattern evidence is traditional also when we take the first strike against an african american ger she's on a hung jury and apparently has questions about the police or had problems with the police in the prosecutor's view but we have a white man who's on a hung jury and was convicted of a wet reckless and said straight out unambiguously that he didn't like the way it was handle what happens with him aphasia case and then resort to these body language images like she doesn't smile at me she has an attitude i would just like to point out almost twenty years ago in vasant justice marshall us were there but the judge who heard the evidence was there and he was very skeptical of the answers that were offered and that's where i move to step three which is step three is very important and that's why i  hernandez has made the point about once you've gone to the ultimate question you really moves the preliminary question really ought to be that way i mean the truth is what is the most important part of a violation what truly happened in the court and what is the prosecutor actually doing yes there is a preliminary restoral thing to try to keep it under control but once we have had the prosecutor and he said he wanted to give his reasons he was glad that this hearing was held he wanted to quote look everybody in the eye and explain his position he did that he had that opportunity after the evidence was closed your honour's he went to the attorney general position oh because i think as the court found it didn't ring true it sounded untrue the explanations didn't make sense when you look at the record they were supported by the record when he was caught in problems he had no real answers and that's the importance of step three that's the importance of the hearing the truth of the matter was revealed his credibility was in question and the court found that he was not credible