and five and the failure to address it did you say correct ok he did not acknowledge it in any way ok jerk twenty five had said nothing about race when she described the incident with her son she hadn't mentioned it at all it was the prosecutor who injected the issue of race into her board here and asked two of his three questions about issues of race he didn't question any of the white jurors about issues of race he didn't ask people who had been arrested or had negative experiences or relatives who had been arrested if they thought race was an issue he didn't ask them if they thought racial profiling was an issue generally and as respondents briefed shows there's no way to explain this unprompted questioning on race well it is across racial identification and it was an identification case right it understanding of this particular case it was a robbery it was and i don't i cross racial identification and that juror two for over five said that her son had been mis identified spent a night in jail and it turned out out that her son was african american and the person that misidentified her son was white and the concerns stated was that even though she said it wouldn't affect me at all the concern stated was well if you actually get in the jury room and you're start deliberating and it kind of all comes down is that is that a proper basis for a prompt or a challenge where i would point out that the prosecutor repeatedly distinguished between the issue of bias against police prosecutors and the judicial system which was his stated reason for the strike and issues about identification misidentification which he repeatedly stated were not his reasons for the strike and not his concerns about the strike so all the court is correct that it was a case where at the time the evidence was a was about cross racial identification the prosecutor has told us he has told the court several times that that's not his reason for striking the juror and the supreme court has said that when a prosecutor states his reason he's got a standoff on it it doesn't matter if the court can see another reason that might hold  so what was the prosecutor's reason his reason was that sure son had had a negative experience when i asked him the st time he didn't even use the word identification he said i thought she had a negative square answer and i didn't think she'd be able to put it behind her and be fair to me as the prosecutor the police or the justice system asked about that because the negative experience the thing to do with the police that her son was misidentified by a woman and the prospective juror knew that the woman knew the woman did raise didn't really know anything about her but i don't think she pointed to any bad action by the police the police arrested somebody who'd been mis identified by somebody else that's correct your honor she said nothing about the police and he asked nothing about the police or her feelings about the police he didn't say for example do you think the police treated your son fairly or do you think they mistreated him in any way to be on the race that the police we don't officers involved ok now you're saying there's a clear and you and we didn't get let you get past your st bullet point which thank you on the nd one was was i was just reading too which is that he claimed that it was concern about bias against police prosecutors in the judicial system but he did not ask her a single question about any of those three potential biases and the court failed to address the precedent of the supreme my rd point your honor is the district court's treatment of the mischaracterization of the jurors testimony when the prosecutor said that she said it would leave her with an effect when a fashion hits at the exact opposite the district court found that to be an honest mistake relying on the case of this court but the aman case distinguished between mischaracterizations that state the jurors believes in a manner that's completely contrary to what they actually said and more or less ignore forget mischaracterizations that can be explained a transposition of juror responses in rice there was a case where it down there was a supreme court case where the record showed that the prosecutor had referred to a different or are not that are at issue as being young when she wasn't young but th the supreme court said noel is evidence of discriminatory pretext and less significant strikes that do not create a new basis for the record in that case the juror the prosecutor had stated that the juror had brothers who were serving prison time when she had said that she had a brother serving time i ask you to focus on a question that i would ask both lawyers to focus on the same thing because i think that some requires purposeful discrimination across that finding and this process we ordered the hearing and this prosecutor was credible and i think the judge said conscientious i think use the word conscientious as this person was doing his best to remember something like thirteen years ago what his reasons were and so what bothers me about these cases that i think at this point we all know about implicit bias we all know we have biases all of us judges included and the question is what do we do about those batson at the time it was issued vasant reckon they called it unconscious bias there but they recognize that and yet the supreme court has required purposeful discrimination a finding of purposeful discrimination so what i'm what i'm struck ling with is i think you have strong points here and i appreciate you summarizing them for us but i get back to this credibility determination a favorable credibility determination and how we would at that point you know once finding is made how can you show how can we show that there's air for failure to find purposeful discrimination well i have a couple of responses to that your honor st i would clarify that this court has defined purposeful distant discrimination as race being a substantial motivating factor for the strike it doesn't have to be racial animus it doesn't matter whether that's the result of implicit bias or explicit bias as long as race was a substantial motivating factor in this right we don't know right at this point we're ok and with respect to the credibility finding is that the analysis is whether or not the stated reason was the prosecutor's actual reason for the strike and this court  versus mcdowell where the court explained that the finding of step three is a question of whether or not because of the finding as a question of whether or not the prosecutor stated reasons for the strike are his actual reasons for the strike that it's necessarily a credibility finding and they analyzed as a credibility finding and the court discussed the hernandez case and how the hernandez case talks about how we give deference to the credibility findings of the trial court because they're in the courtroom they see the demeanor of the prosecutor as well as the jurors and how and some cases and in that they use the example of a situation where the judge suggest reasons for the strike before the prosecutor has given them and then the prosecutor parents of those reasons those credibility  the district court did in his finding here but the supreme court has said that there are factors that are beyond demeanor that go into a credibility finding and what the the argument that i have is that the legal errors that the court made in terms of not addressing the prosecutor's failure to question which shows that the evidence is pretextual the not it not applying the right legal standard to addressing his mischaracterization of the jurors testimony the failure at all to address the race based questioning of this juror which has never been explained and then of course there's the misleading declaration in which the prosecutor claimed to have conducted a comparative journalist this that he did not actually conduct that declaration that was generated on may please the court deputy attorney general normally however the responsible word in this case i just want to correct one thing at the outset i think opposing counsel to the relevant decision here is the state court decision it's the district court's decision that i believe that this court is has to unique in the panel of jurors and petitioners case she was the only one who had a close family member her son who was misidentified and not only that detained overnight the district court i think to judge krist point is was sensitive that she may have even been pro police in this case they took that the district court took that into account but despite that the district court said the prosecutor was reasonable believing that she would not be able to misidentified they had experiences with identification where one of the jurors himself who was the pastor believe he misidentified somebody because of race but he didn't have a close member that was  identified and then detained by police so he was making the mis identification himself but when you made the point they're saying and detained by the police read his ever finding fault with what police have done there they responded to do not blame them but what the district court said and which i think is the proper finding is that the trial prosecutor could be legitimately concerned that a juror made harbor some resentment against the prosecutor's office because of that experience of her son she didn't receive the case in terms of i know it was like a robbery where a lot of money was taken and people were tied up and all of that did was the defense that it wasn't them yet it was someone else he was tried with this brother right that's correct and i don't know what happened to his brother but he's his brother somehow is not on the same track together but so there were people at the business or whatever that identified did they identify mr potts identified both and and bought both of them and did they say they were did they was did they test fire did they say they were somewhere else or did they or did someone say they were somewhere else or was that because sometimes people say well i was there but i didn't do what someone said i did sometimes people say i wasn't there it was their defense that they weren't there yes petitioner presented an alibi defense that he was not there and he had witnesses i believe who testified that he was somewhere else at the time of the robbery i believe that his girlfriend's house i believe that's was the case he was not at the scene of the crime so they did present the alibi i haven't and of course that was rejected by the jury but again that goes to the point i believe to the cross racial identification how that was an important issue in this case and the prosecutor has consistently stated  that identification was a key issue he was concerned about jurors who would be who may have had a need that negative experience with identification which juror two thousand four hundred and five was unique in the sense that she did because her son  happen if the court goes back and looks at the record it was not him prompted one of the jurors that petitioner uses in comparative journal says in the brief in which with this recording gauged in which whether which i would also argue on another point that was not necessary because and twelve was the juror who said that she would as robbed or there were she witnessed a robbery one of the suspects was cut kasia and one of the suspects was african american she could identify the caucasian suspect but not the african american suspect because she didn't pay attention to the african american one dollar and she paid attention to the looks of the caucasian suspect that was jurors exchange well but these issues were in the four and they were before all parties and then petitioners defense counsel was asking questions about cross racial identification and whether they believe you know there was unfair treatment of family members or prospective jurors themselves by police so the this question was not the trial prosecutors questions of juror two hundred and forty five were not in prompted juror the trial prosecutor simply did not continue with any further questioning after asking those three questions about her son because at that point and as the just record found it was unnecessary the prosecutor had had the paint all the information he needed to make a decision at that point no need for further questioning on that the points that opposing counsel just raised because i think the st three that she raised her point that the prior nights are raised when the majority decided that a prime a face a case had been made her response is that after the th circuit satisfactory of opposing counsel's position they talked about and eyes as i i think one of the points of the opposing counsel was this issue the race based questioning well it was discussed that that were the district court and i don't have the cite and they are in our but the district court does talk about how the trial prosecutor wants those three questions were asked did not need to go any further to determine if there are twenty four or five would be biasing at the prosecutor's office so that's one of the points that was specific  three and as this court knows the district court did a very thorough evidentiary hearing we were both there at the hearing was very thorough right because that and i'll grant you all of that and i've already said and i lead with my concern about the positive credibility determination and how that really gets factored in but the definition of a prime a face a case is if these points go and refuted they win right so that's why it seems to me and i really sort of fond of it that way but i'll go back and read this for the nine hundred time the hoarder i'm sure we've all read it many times  you a chance to respond to that point i would just say that the district court did addressed those points that that petitioners council was concerned with the one that i specifically addressed but before i run out of my time i want to make clear that district court what has to be found in batson is that there was a preponderance of evidence of purposeful racial discrimination and the destroy court found that the prosecutor his reasons his stated reasons for  twenty four dollars and five dollars did not show purposeful discrimination under any standard and those factual findings for this court to overturn has to find clear air and that it would even if it would weigh the evidence differently taking into account opposing counsel three points you raised it would not satisfy the clear very standard this court would still have to affirm th deemed credible that that it's not going to be possible to show purposeful discrimination i think it would be very difficult if the district court is tasked with conducting the evidence or hearing and they find the prosecutor to give a credible and conscientious entirely consistent this is what i really grapple with in this very important area of the law we all have implicit biases i think the research now is very clear on that point so i can do something not even in a discriminatory way not even recognizing it in myself and that's true of all of us and so it's it's just an intersection that's very troubling to me is there anything you want to save response to this in any guidance when give me where i should look in the case on this point i would point out the cases from th and from the supreme court where it talks about credibility determinations be made by the fact finder that those have to be given a lot of weight this court did over order the evidentiary hearing and you know there are human imperfections but this court thank you i'd like to start by saying that the district court did not address the fact that the prosecutor's questions were about race to juror two thousand four hundred and five and no one else that that fact was simply not addressed and i would note that respond do you think police treat you differently because of your race asked nobody else of those questions i would also like to point out that for all of respondents talk about the the role of identification in the case and the prosecutors focus on that in the generally he said over and over again that that was not his reason for the strike concerns about identification were not his reasons for of strike on this case and on page thirty six to thirty seven in my brief i point to i think five or six times in the record where he said one is biased or twenty four or five the others the seated jurors were identification those were two different things in my mind he even said i don't even understand why we're talking about the two of them at the same time despite the fact that he had submitted a declaration in which he had told the court that he didn't on the grounds comparison at the time of the trial of these two jurors experiences of these three jurors experiences which he did not actually do and i think that that declaration which is it is und was working for the petitioner the prosecutor testified that the initial draft was prepared by respondents counsel and that it was then a joint effort going back to you know by the attorney general declaration was that the court had ordered that the party submit declarations from their witnesses to serve as their direct testimony at the ice at the evidentiary hearing i c and then that the and the declaration differed markedly correct but that was the direct drug yes it was but the trial court simply said it doesn't undermine his credibility without any explanation for why submitting a misleading declaration to the court about what he remembers about this juror and what thoughts he had and how she compared to other jurors how that wouldn't affect her credibility and that there i'm not aware of any case where there is that type of misrepresentation to the court where that appeals court has sustained a credibility finding and i would point the court to foster be chapman where a prosecutor submitted a written brief with  whole story about how he had come to strike a juror and it was in complete contrast to the record and the prosecutor had said that the juror had appeared initially on a list of questionable jurors and somehow came to be moved over to know when the evidence showed that from the start she was on the list of definite knows and that was the st reason the supreme court sided in foster v chapman why despite the fact that the prosecutor stated reason seemed plausible enough on their face the record reflected that they were not the actual reasons for the strike and that that she would be affected even though she said she had not but the question isn't whether it's reasonable or plausible it's whether it's was his actual motivating reason for the strike and given that he did not ask her any questions about those biases that he claims were the reason at all of the other reasons