harley for appellant i'd like to start off someone you know specifically by indicating a correction in my opening brief one page fine up at the top of the page the nevertheless this is an unprovoked attempted murder case committed by a black defendant against white victims race in this case was to use our argument as a california decision was based on an unreasonable determination the facts and that issue number one as far as the california opinion is concerned is just in our excerpts of page one seventy four peleg court indicated rows past experience did not stack up favorably when compared with other jurors you know prior jury service and all fours and contact no military service however the prosecutor noted and also the court of appeals noted that he served on a hung jury so that's jury service that's somewhat inconsistent that determination right the ultimate you know you may get retried a lot of cases don't get retried or they get lower lesser charges or at least the my experience one holdout doesn't get me to justice because i end up going to trial again so if six different story but eleven to one i generally end up going in doing a retrial so it doesn't help us out of just delays the quote inevitable but i share your concerns it is kind of a victory if you can hang somebody up but also i think the mere fact that is a hung jury is really a zero factor because we don't know what the split was it could have been such that it will lead to one we don't know which side mr rove this juror number zero sadness hung jury and we don't know which side he was on in part of the prosecution of voting for guilt part of the well except for one of the other things that people i'm hung juries you know i mean which can be a concern is they don't often report that is a good experience in being on a jury because you know you start something and you don't finish  sense that the same with like two and a lot and juries mean that people didn't agree you know it could have been contentious it could have been a number of things so you don't have to but you know what you know is that during was not able to gain consensus and there is a potential for that person could have been the one hanger act on the other hand maybe they weren't but it could have been a negative experience and  say that even though it was a guilty verdict it wasn't a very pleasant experience so jury trials by themselves with all the emotional drama that goes on is not a pleasant experience whether you reach a unanimous verdict or whether they're on able to reach you know this verdict so i share your thoughts that's true but i also heard jurors expressed during a selection process that it was an unpleasant experience having to sit in judgment of a human being and they would reluctantly yes if selected for dissipate in another trial and  i guess what i'm saying that's a race neutral re yes it could be a race neutral reason if you accept it a face value but you know right here i think we have to scrutinize it a little bit further than just because you sat in a hung jury because i think you have to go further and see if there are any  trial and the present jury trial as far as did used or likely be raised in order to really make it a valid race neutral explanation i mean anybody any prosecutor worth their salt to get up there and say well he  fifty and i think when you consider all the factors here there's a good argument that it is protect pretax will because there's absolutely i mean the obvious question if you sat had prior jury trial experience whether they reached a unanimous verdict or sat in hungary with the what are some of the issues perhaps what were the races the perpetrators involved what type of case it was we don't even know whether this was a civil case for a drunk driving case we have absolutely no idea what the nature of the case was i would suggest you know somebody is really interested in a race neutral into a much more relevant race neutral factor if there was further exploration done by the people down below five minutes you're moving this closer to a requirement that there be something that has been established and the burden of production is on the prosecutor to come up with something plausible i would suggest that starts tracking from the credibility determination the prosecutor at this level we have to  i think that i think that to the extent we go beyond what i think are the limits of what can be done and has to rina we're going to lose the preemptory challenges the phenomenon of litigation that's frightening and i and that is really frightening and i think there are some support for there frankly in the supreme court well i don't want to you know argue against that  but i think i still has the issues about the unreasonable determination of the court decision below because the california opinion you know praised the judge for initially rejecting the prosecutor's reason i mean he especially found out morning may please the court warned robinson deputy attorney general for respondent in this case the trial judge was very conscientious about his duties he did scrutinize what the prosecutor said a one point he warned the prosecutor to be careful at another point with regards to your or perspective your method he rejected an initial reason offered by the prosecutor even the prosecutor went on to say that mr smith with was young and expressed concern concerns about mr smith's arrest neither appellant nor his codefendant whatever the exact arrest was there certainly was no objection by the other side and the trial court accepted that  make sure that there was not a batson violation he questioned the prosecutor but when we look at this record we see race neutral test for nations as to all three perspectives your and there was no clear and convincing