good morning your honors jonathan klein deputy attorney general for responding charles harrison if i may i'd like to reserve two minutes of my argument time for rebuttal you notice this is a case where the district court found that the trial prosecutor purposefully discriminated in his use of the printer he challenges against african americans even though he did not remove all of the african americans from the jury and in fact accepted a panel that the remaining black jurors and the statistics in this case upon which the district court heavily relied more than one of themselves to an argument that the prosecutor was not discriminating against blacks but in fact that he was discriminating against non blacks and if i may i'd like to briefly highlight three of these statistics one of which is the racial composition of the final jury as composed to the racial composition of the whole obviously if the racial composition of the final jury is higher than the racial than the for example the black composition of the jury is a whole or excuse me of the veneer then that would be strong evidence tending to refute any inference of discrimination on the prosecutor's part and to break this down here the jury was thirty three percent black and there was another juror who was part whack meaning forty two percent of the jury was of african descent and when the alternate jurors are taken into account as they have been in many cases then that number swells to forty seven percent the jury was forty seven percent black but veneer in this case was only twenty five percent black and that statistic in itself is strong evidence that the prosecutor was not discriminating against blacks another comparison that courts have made is that percentage of available blacks who served on the jury as compared with the percentage of the variable non blacks who served on the jury after the trial court's cause for moves in this case f bailable blacks served on the jury but only thirty three percent of all available non blacks served on the jury after the trial court's cause removals find available or are using the word available  in this case i believe there were six jurors who were dismissed for cause for hardship and our issues may think it was seven for other for those reasons so of the remaining jurors the statistics are i believe six there were twelve cent so there's a seventeen percent differential cut in favor of the prosecutor discriminating against non blacks in this case and then i'd also like to point out that of the fifteen jurors who were originally  fill the twelve jurors spots and three alternate spots five of those jurors were blacks of thirty three percent of them were black but as i said of the ultimate sure jury forty seven percent of the fifteen jurors  the prosecutor stated nothing on the record as to why why he challenge for african americans three latinos one person of mixed they then they then and then the prosecutors got to come in and and and give nondiscriminatory reason as to why these people were excused he didn't do that correct well with respect to to what he said actually when defense counsel made his batson motion i started that the petitioner defendant had not made a prime fishing case and the judge did not order him to give his reasons so there could be many reasons as to why he would not want to that that is true and there are many reasons as to my as to why he may have wanted to decline aside from the fact that he was trying to hide something for example i i know i've heard in other cases that certain scenes o the matter cannot be decided step two but it has to go to step three where the court makes the determination of whether there is a purposeful discrimination on the part of the prosecutor and that is consistent with that all the court considered with all the other evidence especially the fact that he lied so many black prospective jurors are black jurors to remain on the jury that is strong evidence they thought he was not discriminating against b calc is right down the street your honor this case is not about statistics those two principal yeah it is really i mean you get down to it that the you can talk all you want about the prosecutor's reasons but they don't demonstrate purposeful discrimination they offer an unsuccessful explanation for what he did but it seems to me the only affirmative demonstration comes from the statistics actually your honor the supreme court in johnson emphasized that  counsel exercises challenges against your honor i don't i don't quite recall specifically and for al that i am my file in this case is still sitting in honolulu of the lost ark the didn't fly here so i'm trying to remember i sort of hard to try to figure this out and i wasn't entirely successful but it seemed to me that the real everybody loves the cystic somehow i had i wrote papers in college about how you can prove almost anything was that this is what i wanted to try to figure out is what was the prosecutor's behavior with regards to the pool that he had to choose from because playing he did not have the the the forty eight member on your panel to choose from because they were all in the box and some of them were excused for cause yet some of them presumably were challenged by the defendant and that's one very difficult to figure out because i think looking at the comparison the before and after which which you say we want to talk about really suggests to me that a disproportionate number of black jur eliminated by the cause process that they asked about for whatever reason best and also that your client challenges were exercised in favor of excusing white jurors which course the best was applied to the defendant but but i was trying to get the numbers at a very difficult time so with that background what was the pool of the prosecutor face your honor i would like to correct something in that there was only one my recollection of the record is there was only one african american juror who was widely dispersed they were not targeted against whites this was not a case where the prosecutor had any justification trying to counterbalance i think that if we just read from of them numbers you offer up were correct that would mean if your if your client excused for one was black so the argument could be built well seventy five percent of your preparation alagiri used against non blacks in the same way that it's about statistics there are some relevant statistics in step one  once the court is held in evidence rehearing the step point inquiry has now moved and i think there are very good reasons for that especially once the court once the district court has made a finding a purposeful discrimination eight out of nine of the prosecutors challenged being used against non whites and the forty four percent versus i forgot what the other number was a comparison between using them against blacks as against the i thousand and five percent i think it was the black and one of the facts that was before the district court is that the pool of african american jurors who were struck by the prosecutor were widely dispersed in age and in occupation in residential area  they were a mixed bag of married and single people as well people who had been victimized by crime people who hadn't so or wide variety of african americans were struck by this by this prosecutor in addition the just report how so had before it the fact involved in broadcast production there were people who were single there so there was there were bridges between the african americans and and the white people who were allowed to sit on this jury it's things that strikes me about this case is i think you pointed out in one of your briefs look at where you are you're downtown l a yes and and what it says to me is that's true you can expect a panel that will be heavily composed of i'll just say nonwhites so you don't have somebody here that's trying to strike the odd might already member in texas making sure he gets an all white jury because they won't believe anything of black so you've got to get a unanimous vote for a conviction which means he's got to get a vote of mostly non honor so that's what the what else is there your honor you're absolutely correct the prosecutor was given an opportunity to explain the reasons for his his strikes and he declined that opportunity so then where does that leave your honor this court can affirm on either of two grounds the district court addressed both grounds you cited by the prosecutor does not involve a complete failure to offer any reasons and the supreme court in court make it rather specific that the first the prime facie case and then the answer by the prosecutor are merely burdens of for protection but the final that you're asking us to do your honor it is a burden of production and that involves a burden to produce and in this case the attempted to produce results that were not in make any additional analysis and that's that's true your honor that's true and the trial court had an opportunity that district court had an opportunity to evaluate the prosecutor and evaluate its credibility and he had  something like that there the trial just didn't say that the prosecutor didn't need to put anything on the  course that was before you it was it was rich which it seems to me that that he made quite a clarification that that these first here found that the prime official case considering all the facts in the record the palm of his you case in this case was supported by a preponderance of the evidence that would be enough without any reasons to they were both you folks she was twenty three he twenty six the only other known fact about them was that she was an advertising coordinator and he was an eight year journalist although there was individually no memory of why he struck lewis the prosecutor submitted a sworn declaration to distrusted media employees because they try to see both sides yet he didn't strike jane riggio the white male journalist with eight years experience in print media but only made an important distinction between basons first two steps which are merely burdens of production and step three where the ultimate burden the burden that never shifts is decid is not until the third step that the pervasiveness of the justification becomes relevant the step in which the prowl court determines whether the opponent of the strike has carried his burden involved in slightly different situation than this case which you mentioned you involve the situation where the prosecutor was able to give reasons there was able to be a reconstruction of the reasons i gave her reasons right constrained by the a p a in he also and in that case the crime court made a finding that the of ultimate discrimination discriminatory intent that was the crime court's finding that the prosecutor did not engage in discriminatory intent regardless of one or it was the question of his mental status at the time or the prosecutor's mental status and this court was banned under the a t p a to to affirm unless it was and i forget the exact the exact wording but it's an extremely stringent standards the court's well aware this case the district court held a hearing and the question was whether or not there could be a reconstruction of the reasons and i would point out that this court h i'll try to make it very brief the opinion which has been discussed a lot he really couldn't be more clear i'll read directly from the opinion it says when the bats in test is properly applied and prosecutors failure to provide a reason for striking a potential juror it is not an automatic violation of equal protection the trial court must still proceed to step three before it can determine that purposeful discrimination has occurred ok and also just just calendar case stays at a certain apartment you know and then the judges shift so if there's problems they don't come back to they to the judge that presided over the case they come back to that the it briefly briefly if i could i would like to read another portion of the opinion where it's very short is that inferences are simply not enough and that the context is that inference is are not enough to sustain a finding of purposeful discrimination it's got to be more and in this case when you factor in all the other evidence that especially just the huge number of african americans that served  we almost have to return it bring not well your honor my recollection of the district court's opinion is that alternatively your honor is correct that they found it step two that since there were no reasons offered that  respondent loses that step two but alternatively i think there was a finding it step three that even if step three was to be considered the court still found a client still found purposeful discrimination on the part of the prosecutor but let me ask you a practical and i don't have an enemy it's my recollection is similar and just from your office perspective you might win some ground incrementally but the impression left at least by the magistrate judge's opinion is that i don't that is going to make any difference in his mind that judge carter in between we can't speak quite as directly as to what he might think does your office request a real man if we decide that  require as you go to the third stage and looking at the district court's decision it's not clear enough whether or not they did is that a result you request or do you think it's pretty clear what the district court was trying to do well the district court so the inference is you might not be quite so certain about the inferences to be drawn by judge harder as we might be about the inferences to be drawn by or that would be drawn if returned by the magistrate judge so that is correct what is the position of your office do request would be two pronged first of all would be for this court to reverse the district court but if not we would be amenable to remain to to judge carter thank you very much you know  right i think it's about twenty six twenty six and you know what their basic show is petitions and why do they have to come up with all these pages you know we have to build bigger courthouses for him and everything else because the state court sloughs office work that's the reason for it you know no there's you know but that's part of full employment as i said before because when i first got on the district court these things out with the state system but you know they're overwhelmed too and and you know they use the system of setting up postcards and everything else so we end up doing all the work