journalist miller l two is held that the prosecutor has to say to reasons and stand or fall on those reasons when it is the point in time when they are called upon to do justify their challenges to particular jurors the prosecutor said that it has to do with close ties to family members who are drug users or family members that have been convicted not of any particular crime but just convicted  analysis of all of the seated jurors against those black jurors who were excluded shows that there was a disparity between what the prosecutors said the reasons were and what the actual striking of the jurors were in the particular case miller else who spoke for the need of comparative juror analysis to get at the third prong issue and insane it was more powerful than the bare statistics that were provided miller else to it was the quote side by side comparisons of black jurors struck and white panelist allowed to serve on the jury must control one of the issues that's raised in the response brief and one of the issues that's raised in the supplemental authorities that were submit analysis and the texas attorney general miller l two also conceded that no c g a or no comparative juror analysis was done until the federal court the state court opinion is wrong for several reasons not happy with the way that it's you know it's it was not complete they only utilized the jurors who were in the panel at the time of the strike rather than comparing the whole panel as miller else suggests or miller o of the juror the jury that was seated so new in the comparison the court of appeal only compared to jurors of the five that were the white jurors who had the same characteristics jurors panko cohen and neil i believe it was vague and were not utilized by the court of appeal when they conducted their analysis and their analysis only came about in a in a quote in any event situation they first said that the court of appeal could because it didn't allow for the prosecutor to make its full record whereas in this case the prosecutor did make a record as to what it was that he was doing when he struck jurors one of the same ideology of this crime and in the original trial the track or is not required nor is the defense counsel required to ask for comparator now as a trial miller all makes that very clear i think when it talks about the fact it is just one of the tools that the appellate courts because the it not unlike what miller l exactly what miller l did when they reach this opinion  when we raised the issue an appeal in the state court of appeal we raised the a comparative analysis as a way in which to look at the phenomena that occurred which is exactly what miller l did when the miller all court the supreme court got the case they look at comparative journalist and the argument essentially was about the fact that california did not and was not required to do so miller l one actually i think is given plenty of groundwork for allowing for that to occur and miller else who i think is very clear about the fact that that's exactly what the supreme court did when it looked at the situation it's not like a separate claim of comparative analysis it is just a way in which to measure whether or not the third prong was satisfied it's other evidence the supreme court says that you can use a wide range of evidence when it is that you're looking at a batson challenge that would include include comparative analysis in a recent case from pennsylvania out of the third circuit that were seated at the not not seated at the time not all the jurors that served in the case so they didn't compare all of the five seated jurors who had the exact same characteristics as the black jurors that were excused so they never did that  the other thing that they did in reaching it is is that they essentially gave the prosecutor's hypothetical reasons for why it was he might have struck some of the other jurors and miller ells also very clear on that that the prosecutor the reasons the prosecutor gives at the time when they are asked and in this case it's family members with drug abuse family members with convictions those are the reasons that they must stand or fall on it's not for another court to come in and to say well they could have asked or they could have excuse this particular juror for this reason so in that sense they in short the c g a the comparative justice analysis conducted by the state court was improper and it was a ronnie is by clear and convincing evidence because the five seated jurors had the same precise characteristics that the prosecutor said he was relying on to strike the to the african american jurors under miller and the facts presented here mr dunn is entitle to relief briefly i f i might just with respect to competency we put on all of the evidence that we had and it was all evidence that was not defense oriented we put on the social security administration records we put on the stanford medical  group diagnosis of mr dunn we put in the sacramento county jail medical records we put in the california department of corrections records that occurred after his conviction which placed him in and still has been placed in a mental health population he was taking seventy five milligrams more of cynic one then is the maximum daily dosage through the course of his trial what's the impact of that drug on someone's mental  the you know better in all the determination that the trial counsel is not the person to make a determination about someone's competency is the controlling issue in the transcript s was suffering from major mental disorders that he in fact had been given psychoactive drugs while he was pending trial and that they were having an effect upon mr dunn's counsel at that point in time ha duty to at least call the jail and ask the medical staff what drugs is he taking what effects to these drugs have on him and then either to ask them or do independent research in the prison physicians yes reference to find out what the effects  jail post the time that mr dunn was there who evaluated who tested him who spent two days interviewing him and took all of the material together and made a determination that he was incompetent and not able to s but the records of the social security records the stanford medical group records and the sacramento county jail records are all prior to the trial and the c b c records occur after the trial and what's most telling us is that when jail staff some i think it was ten days or so after the trial decided that he needed to be taken off this medication because it quote made him out of it so we have given everything and all neutral we can hire a defense doctor to come in and give the testimony we used all independent records that occurred prior to the trial that what the jail staff medication was given him not what he was getting from on the streets not what he was getting from his own doctor but what the jail staff was given him and then subsequent we affirmation by the california department of corrections that he in fact is mentally ill well  or what business is being transacted in court i don't find that doctor it words those little dark mr dunn was impaired to such an extent that he wouldn't be able to cooperate with his attorney in the preparation of his defense now there are other there are other was there anything though during the trial that mr dunn did which was suspicious i hear what you're saying he was heavily induced with these drugs he was at all these medical records but during the trial believe you anything suspicious was he falling asleep or was he acting up was he talking to himself well i don't i don't think cynic one is going to necessarily make you talk to yourself over a period of time the question day of trial the day after trial he kicked it up to two hundred twenty five milligrams which may be fine for functioning within the jail but it doesn't allow for someone to be functioning in a court room when they have the other disability that they have going on with that to add to it the fact that they have a medication the psychoactive drug that they're receiving seventy five milligrams of but of the recommended dosage dosage is one hundred fifty is the maximum he's giving to twenty five so it's full third above what the maximum is now the we were able to buy our testimony i believe prove under cooper by a preponderance of the evidence that he was in fact incompetent we have a doctor independent doctor to testify to this and we have the records both before in afterward all pointing to the fact that mr dunn was indeed incompetent at the time of the trial and able to rationally assess because he problems thank you i received a letter this morning i didn't know that there was the miller l two until this morning and i apologize for that we have a library i'm sorry we have a library that's true i have a library as well let's see i did not forgeries for blacks or is that the prosecutor excused that where the basis of the two bats and motion one had an article convicted a murder that was the last one one had fired again apparently and they are on the fourth of july we think that those two are obviously valid speak for themselves the dispute apparently is over  drug using relatives and therefore i suggest biased against the prosecution and that was true of rover in godbold as the prosecutor explained it as the court of appeal pointed out methamphetamine was not in good standing that's the opinion that page twenty one twenty one and also they get a relative who is a murder victim and therefore would be likely to have at least some sympathy with the prosecution case and i had a daughter with a drug she's a drug user and a long time greg user the mother was obviously very concerned about her daughter very supportive was concerned about getting her daughter after rags and those circumstances hardly show and if rule of the drug using lifestyle but actually an antipathy to it seeing the damage it caused to her daughter and on that basis there was no reason why the the prosecutor would think that anxiety without making him out of it as he later reported after the trial and that was i believe ten or twenty days after the trial that that happened the wit in this the expert witness relied on by the something that included miller well we just gave him the actual letter with the additional thirty this morning but we told him on wednesday was not too happy about it thank you