this involved a grand jury discrimination claim filed by mr allen on the time of his trial the elements of that claim were a selection system that was susceptible to abuse and proof of discrimination the workings of that system one method that could be used for proof of discrimination is the rule of exclusion the district court in its border noted the rule of and fifty four stated his holding sometimes called the rule of exclusion has been applied in other cases and is available in supplying proof of discrimination against any delineated class this was there more care on the camp disparity the issue there's no new law that we can consider whether that by which actually probably cuts against your client but there's no new law or fact we there why would we why would we do it and judges it's frankly our position that yes i'm not sure i've come across a case in which there were two separate cases that dealt with the same issue and came to different  but couldn't couldn't help it didn't have to be necessarily a formal application a law of the case but that a pragmatic and practical yes we we have yet already why would you do it i don't understand that it and you know there's a footnote in the mr allen established the elements of the claim st by showing that the key man system was susceptible of abuse which jefferson recognized secondly that the rule of exclusion in his case established discrimination and setting aside for the moment that the quibble about the judge's testimony in the case it's our position that the rule of exclusion was fattest so i bought separately and independently by the givens order which the trial court took judicial notice of and there had been an earlier stipulation in mr allen's case with the district attorney in the givens case about the numbers and grand jury representation and that was that there were eight african american grand jurors out of the three hundred and thirty eight grand jurors between september nine hundred and fifty eight march and one hundred sixty seven dollars or which would be two  acknowledged the givens order and the district court which also acknowledged it and mentioned it in its opinion including the facts there and were wrong and  typical disparity it seems to me that reading all the cases up to this time in one thousand nine hundred and seventy two that all the supreme court cases have focused on kate those where there was there was not only a complete exclusion of african americans but in addition to that you could point to a discreet point in the process that either did not result in the x is the complete exclusion one or more points within the them that resulted in the complete exclusion here it doesn't seem like there was a film like that and that was described in the other cape so could you give me your thoughts on that pl e yes or st i don't think it has to be complete exclusion in order to under represent the participation of a minority group or any particular group in it secondly i think what the core of what the supreme court described is a process that what it was what it was looking at was whether or not the system was susceptible to abuse you know the word as we've set out in our brief you know if you were just blindly picking names out of a hat it doesn't matter what your discriminatory and and it was if there's no way that that intention can cause a disparate however with the key man system where the judges were the sole warden who did or did not get on the grand sustain that the seventeen and a half percent disparity falls in between the disparities noted by the supreme court and jones versus georgia which is fourteen seven percent and simmons versus georgia which was nineteen  percent mr allen seventeen five percent and although it may not represent a total exclusion still represents a dramatic exclusion of african americans from the grand jury process in davidson county i think allentown excuse me those alexander would be another i don't have the briefs in front of me at the moment but i believe we have set out those cases in the brief that we believe support our position about this and i would respectfully disagree with your honor that we are we're tying together disparate elements from different cases i think an overview of the supreme court cases it's clear that that's what the court is looking for and i  think it was so because early on yet discrimination was was very clear and and more obvious then it became later and so if you look at the is the process susceptible to abuse and at what point then you go to you know even if you have a system this is heppell to abuse if you look at the rule of exclusion and there's only a two percent disparity you might say ok that's not that's not discriminatory but where you look at a system such as the key man system that is susceptible to abuse and you find a seventeen and a half percent disparity then you can say despite what judges judicial commissioner that has one of the key and dumbs in the non compulsory jury grand jury selection case where where because the numbers seem to be out of whack the mere fact of the numbers frankly ron i don't know i've not looked it up i think our position would be that whether or not the system was compulsory would not affect the calculus that i've just described  in fact i believe the twenty one of the judges was that they could have compelled the grand jurors to serve they simply chose not to but if you're relying upon hernandez that with the complete exclusion case from nineteen for trying to say i'm just trying to figure out i think there are really good arguments on both sides i don't mean to suggest otherwise but i'm just trying to figure out if there are really good arguments on both sides to whether the supreme court had really gotten into this if there are good arguments on both sides then how can the the end of the decision have been then held to be not only contrary to an unreasonable a given what the tennessee court of criminal appeals based its ruling on was the failure to prove discrimination and not the possibility of discrimination and and that's where we get into the court of criminal appeals or furrowing of the judge's testimony is mere speculation or vague recollection while of the same time ignoring the givens order and the factual and the fact that  established about discrimination that's what the court focused on and they they didn't talk about whether or not it was a compulsory system or whether there was complete exclusion the court seemed to accept that that could be but instead decided that what was lacking and on that it is our position that that was one reasonable decision given that the givens proof and i would say it if you look at the judge's testimony one it was not mere speculation or vague recollection they were very clear going name by name but secondly the givens order confirms what the judges testified to and so that i would suggest makes the tennessee court of criminal appeals opinion and reasonable in that they know where those facts to come to their conclusion and that in doing so they ignored a clearly established supreme court precedent establishing that the rule of exclusion establishes a prime aphasia case of discrimination certainly in cases where you've shown a seventeen point five percent dispar thank you very much i think of record another question your time has expired thank you cleansing and that involves looking to what the clearly established federal law was at that time as stated by the supreme court we had a unique procedural history in fact here for a number of reasons one of them being as well highlighted contrary to our and reasonable application of federal law at that time and i think the answer to that is to call one more legal one more factual on the legal what the petitioner had has consistently argued all of the cases in which the petitioner relied on were sort of the flip side of what we have here they were cases where you will jurors were culled out at some point in the process and so there was an inquiry because they were taking ration to account and they were taking a class gender age and you had what you had testimony in the record my point in terms of that is that the court had not squarely been presented the qualifications isn't ship resident a legitimate consideration so having a system the court the point here is that the court had not where lee determined that having this kind of system was in and of itself unconstitutional and with alexander we know that the statistical disparity alone did not compel the court of colonel pills to conclude under supreme court precedent that alone they did the case what the court system that led to my point and then alexander went on to say that the lection cricketers are not racially neutral when they provide a clear and the opportunity for racial discrimination see because if the judges are to be believed they were actually going out looking for african americans to achieve that fair and balanced them now granted maybe you don't believe them based on what the typical result of that process was but they they were trying to get african americans and it was more difficult to get them in a voluntary that them to serve did i don't want to make sure that i didn't miss anything here did did alan in any way tr more no your honor and the hearing the way it was tried with interesting because it was the petitioner who put forward all of the evidence and put forward the at the mony the judge and it lifted testimony regarding their effort but the precedent in it at that time did not preclude a reasonable application of credit that would authorize consideration of the entire record because again ultimately we're looking to finding establish under this record under the state of the law and would the supreme court had not directly addressed a stiff them quite like this and i think that ultimately is the is mention regarding the factual issue and counsel mentioned given order then a quarter panel killed alternately concluded that the order the court taking additional notice of the order that included a stipulation regarding certain not was what an acceptable way to proceed to establish these these numbers because the judges had actually worked with these grand yours and i think it that for a period of four months or something like that  the way the grand jury works is there really any day in day out involvement with the judges other than being called in to referee some sort of a problem that arises or or put another way because the judge grand jury room here in the cases with them and part of that i think the reason was more because they were making the decision and it really all comes down to the quality of the proof the credibility of the memory no in terms of the day to day work the judge isn't going to be directly involved i don't believe my understanding of it unless there is some sort of dispute or something of that nature that involves the judge interacting though they were in your so they were  unsuccessfully to have the court sort of take judicial notice of the race of the listed individuals thanks on their address that was rejected but it really is because the live together about a  very odd indirect way to prove that and it was done when the petitioner didn't believe it mattered anyway because the position was that the statistical imbalance which the petitioner then in now argues that the given the order alone established was all that was necessary so that but again we are position if it doesn't satisfy the deference either way ok and i get one question critter on that the judges who were kept going at the hearing they knew they were going to be running at the hearing right you know i'm not sure of the record they probably did but i'm not sure the record clear it was going to i don't like people didn't know they were to address a point that my my colleague made there the end which was that it was our position that all we needed to establish our claim were the numbers that's not our position as i noted beginning in my presentation there there are two elements here the st of those being a system that is that is subject to abuse and secondly that that system has been abused and at that point the then the numbers come into play  of african americans or whomever on the jury i think in terms of our claim that refuted by their testimony both about the extent of their discretion which was full terms of who was allowed on or not and then secondly i believe it was judge cornelius who you know mentioned the fact that he was limited by his social connections as to who he could call and to that  that point i think it was smith versus texas is that because the whole when jury commissioners there had testified that they selected people from their own personal acquaintance in the supreme court said that discrimination can arise from commissioners who know quoting the language from from that kate but when you put it in the context of the case there was this discrete action that took place that about black and and and excluded and i'm just trying to figure out to that what's important for a e p a view is the holding of the core and that holding up the core part of that holding was that discrimination can happen just because you don't know somebody to to put