proceeding moreover even by that standard which is much less deferential than the actual standard that should have been applied that ruling was an error in this case i think there's no dispute that the state pretextual and listen to the defense's arguments and listen to the prosecutor's arguments and in each instance decided to allow the prosecutor's challenge so what we're left with here then is the only way that corpus petition c was about to come from and in making that determination essentially what the court did was to look at the cold record which obviously is all that this court of the district court can have in front of it reached a different opinion in the first instance itself he's wise but let me let me focus you on and i think i've got the names of these prospective jurors correct but rejection was that she was young a college student and did not have much life experience correct your honor i'm not i don't see a real distinction with any difference between where those factors as they bear on her and as they bear on mr wong well i think you have to look at the whole course of jury selection here ms williams was a juror who is being considered on the first day of jury selection at the time that the prosecutor challenged her in state court there are twenty primary challenges for a case of this nature at the time the prosecutor challenged three of those challenges and he explained as you said that he believes simply by virtue of her youth and the fact that she appeared to be a college student without any other life experience that that was think he explained this is a case and it indeed is a case and i know the the facts and details of this case haven't been thrashed out in the briefing before you but this is only a very serious case but a case of kidnapping and murder that that was not recorded to society it's not a simple case a case that requires i think a lot of common sense and mature experience and i think it's certainly valid for any prosecutor to consider that and he as i say he does amplify word of this is his concern about the case and that he doesn't think that she has enough experience and i think that is is valid i mean the fact is you know it was a concern with a person who was not young and single student but rather work as a security person of a rehab center who had experience with people when they get out of jail or mental problems the prosecution said that they were concerned that that person might be in contact with people who had degrees of substance abuse problems who sort of knew too much about the prosecution principle witness to the drug dealer i mean obviously you're dealing with a situation where you american judge i don't think there's any inconsistency there i mean the one may very well find that a person who doesn't have enough general experience to evaluate any serious cases that involve serious issues and again he's not making for both of these things we have to realize that in the jury selection context you don't have unlimited time ability to question people so you're going to have to use you're going to have to look at things and make determinations in categories or using proxies and that's fine as long as those proxies are not race so to say hey if you're just a college student and you don't you know have any other countervailing life experience that i'm aware of then i will i see my time is up but if i could just please please please do so with respect to ms reddy who is a security guard and i do want to point out that it's not just the prosecutor and the judge who understood her references to work at a rehabilitation facility as involving drugs it's also the defense never challenge that and in fact never even challenged as pretextual this particular basis given for challenging this juror and again i think the prosecutor as specifically said i don't know how her experience with people who might be drug addicts would affect her evaluation of the case but that kind of the spirit incident might also arise in a case where a person had family members who are addicts for example it could to a lot of directions it might make you say well i don't believe i believe the drug addicts will say anything so or a drug deal i'll write a drug dealers for doing this so it's just too much of an uncertainty that's what the president was saying in this case to put this person on sorry i didn't go back to ms williams i remember being trained as a prosecutor that generally speaking you didn't want young people on the jury because they're too idealistic and liberal other things being equal  the people with more experience i think the original question you're asking i don't know that you got all the way through your answer was that there were other comparably young people with similar life experiences or lack of life experiences who were not black the prosecutor didn't challenge yes sure i thank you i did not finish my answer so williams this challenge of one of the first challengers that's used at a time when the prosecutor you know is looking at the jurors in front of him and saying you know this is a person who i don't know anything to her particular disfavor but she falls into a category that i don't on this jury the next day at the very end of the next day when they've had a lot of trouble getting a jury in this case when they still have to select for jurors and three alternate and where they have come to the end of this jury veneer entirely so if they don't have a jury here they're going to have to come in the next morning with a whole new panel of people those people could be i mean we've all seen and you have all either tried cases or conducted trials i'm sure and we've seen that you know something ears are good for the prosecution something years or not some you know it's just the way the luck of the draw so at that point when the prosecutor has five challenges remaining if he uses two of them to strike these jurors who again there's nothing specific about them personally that he says is bad but they do fall into a category doesn't want and then this is essentially what he says when asked about his strategy is different that point because he doesn't want to go into the next day with still potentially four jurors and three alternates to pick from a veneer that might be full of very bad jurors for the people so he's going to make a different determination he's going to be more careful about using the challenges and that his reasonable strategy again the heavy burden that has to be met to overcome the trial court's finding here i don't think that the trial judge in the state court who also has a lot of experience and with jury selection and who is watching this proceeding transpire in front of him exactly your honor and not only watching the jurors but watching and listening to the if it please the court think that the interesting thing is that ms wiseman makes clear that there are categories of people that were not wanted on this jury and it's pretty clear from the with this challenges were exercise that the only category people he did not want were african americans subject of discussion but i think we can find it in the course of this which is that under jordan vs the fifth there's four different criteria that you could then are race neutral bases to strike a juror being age negative experience with the law enforcement demeanor or type of employment going through all the years judge hellerstein clearly gave close attention he is a very skilled jurist who found that alternately the trial judge not only gated in certain places his responsibility that's imposed on him versus batson imperfect vs ill to go into and really explore the explanations given to see if there is a sort of fictitious or pretext or reasons given for discrimination but he felt it was patently false some of the explanations given that is far beyond the unreasonable threshold that he might had to have found in order to be able to overturn the convictions you see that particularly with the jurors with the case of miss collegiate who's the one who makes the hissing sound at one point you know this is a woman who the prosecutor says that his challenge is justified on the basis that he heard his and he thought that she was having  either conversation internal conversation and she was suffering some sort of mental illness is what is the the trial judge credit that explanation absolutely not he said and i thought he said if you understood it to be that that's an ok reason well in that sense yes judge but before they said no she was trying to hand the microphone to and i understand that there was a back and forth but then didn't wasn't the default position alternately and i just want to make sure no no that's absolutely correct judge that he did find that it was true that's what the prosecutor heard but that's not one of the four race neutral explanations that way way way way when has the supreme court of this court ever said that there are only four possible reasons to challenge a jury a juror that a race neutral any reason that is not race is a valid reason it doesn't have to make sense and has to be a legit a good faith belief by the prosecutor and you're correct judge is not limited to that those are the four general categories of recent neutral that if you challenge a juror because he or she was wearing sunglasses indoors and you thought that showed a sort of anti establishment belief and it does make a lot of sense to me but i was told actually that as a young prosecutor that that's something you neutral and judge let me explain why because what particularly i'm glad you brought miss bell he the this is very close to what would be an excited utterance and hearsay situation the guy gives right off the bat what is his gut reaction when asked justify with his bill thought she was mildly retarded in articulate wouldn't be able to express your views well it's when he was discussing the fourth challenge miss read he says oh yeah by the way it was because she's married to a convicted felon in the it factored into the  explanations had he reached you had you given notice upfront we never would have been here today but they're not we say to a united states district court judge who's assessing a finding or a determination made in the new york state supreme court about these factors i'm sorry what would this court say the district judge what do we say you do you how do you discern as essential it seems to me you're asking us to discern the credibility of the prosecutor in the reasons given judge i don't think that that's the whole thing that i'm citing to and if i could this court sits and didn't had to meet he was saying that ultimately the judge particularly in this collegial never went beyond the hissing sound to go past the credibility of the prosecutor to determine whether indeed there was discrimination afoot particularly when he heard three of to say going back to the question i was asked earlier if one of many explanations meets the race neutral criteria then we can disregard the others and go ahead and accept that that's really what had happened here i think both  with particular miscall east he heard he heard the hissing that's good enough even though it there's no other recent neutral judge the judge at trial yesterday did not apparently hear any hissing and was concerned about that because if he didn't if that did not happen then that would bear very strongly against the credibility of what the prosecutor was saying and then the judge made an inquiry to find out and apparently the way the judge saw it the witness indicated that she may have been wheezing because she had a cold and so the judge then determined apparently that the prosecutor had heard something and the prosecutor the judge at least who was there and watching what went on was apparently not that concerned about whether how the prosecutor interpreted it maybe because the judge thought the prosecutor was by and large telling the truth but if the thing hadn't happened that would have changed the judge's evaluation now this is all kind of speculation about what the judge is doing but i'm having a little trouble with the premise that what a federal judge is supposed to do is to put himself into the place of the state trial judge without having seen any of this and say well i think this other question should have been asked but with that i think you can't isolate the hissing sound from the explanation given what the hissing sound meant to the people the judge did judge thought that that was good faith whether it was what the judge thought it was or what it was what it actually was or what the witness said the jurors that it was the judge believe that that's what the prosecutor thought and the one thing the judge was concerned about was was the whole thing made up and it turned out that on inquiry it wasn't but respectfully judge the issue was the hissing led him the prosecutor to believe that there was an internal monolog like there is mental illness which the which the trial judge said absolutely not she was handing the microphone so immediately that the concern is minimized if eliminated that there should be some other explanation given for why this attorney this particular juror was stricken which is what you're saying is that the role of the federal judge is actually to fl eck not it's the judge's degree of inquiry into each of these various objections i don't know that that's the judge i'm sorry your honor i don't think that's the sole role the district judge the role the district judge in this court sitting do novo is to overcome an extreme male function of the criminal justice system which i think we had happened here today that we're discussing here and i asked one simple question if you only have to win on one of these people right that's correct i mean in other words we've got four different examples each of which have different facts they may bear on each other to the extent they may create a collective impression but at the end of the day if in three of these cases  be i think williams is a very strong comparative evidence situation to look at here a twenty year old kids who were all in college i don't know what your life experience was but a twenty one you only have so much life experience you can bring to the table in a case that i would say she's equally similarly situated to each of them though she's not that she's african american seems to be the only difference but more importantly this is not a very complicated case because not only is it too coconspirators testifying a he and it wasn't for you begin you agree do you not that you have to prevail with respect to all four of the all four of these determinations have to have been at least reasonable but yes first of all question as my colleague said at the time of regarding whether other african americans on the jury we know of at least two who were actually on the jury at the time that this batson colloquy began the question is was it and was it unreasonable beyond the point where reasonable minds might differ for the trial judge was and i think we all know was in the best position then anyone will be to make a determination about the credibility of the state prosecutor whether his decision was unreasonable it's clear the trial judge knew what he had to do and took that seriously in the one case where the prosecutor was making a demeanor based argument and the trial judge i also know that when the prosecutor was explaining his challenge and said you know i wrote it down in my notes hissing and i think that's not something that you would do if you had actually written it down because you know for all you know this judge who is an inquisitive type of judge could a notes so you know based on that he's making the determination about the prosecutor's demeanor and credibility and about whether what he saw from his colleague could be interpreted that way for the cia and he obviously found was actually hissing or having talking to somebody the issue is was there something here the prosecutor perceived and correctly or incorrectly believed that was going on and if the prosecutor believed that was going on it doesn't matter if he was right or wrong because that's a race neutral reason and he genuinely believed and that is always the issue was the prosecutor did the racial reasons he gave his real reasons or with a pretext for racial discrimination  and i think in all of these with spectral for these jurors again in selecting a jury if the prosecutor has to get all twelve he has to he doesn't want a hung jury so any the defense sort of wins if they get one juror on their side so the press can always has to be careful err on the side of caution i think everybody does in jury selection because you can't sit down and you know examine everybody a great length you have to be careful you see somebody is making some noises you don't know what they mean well let's not put that person on the jury because there are many bad things that could mean you see somebody who you know works with people who are like your witnesses who might be involved that go yeah well you don't know how she'll react so let's not put her on the jury i think marriage is focus you on one thing and then what you sit down  i'm back to ms williams and sort of juxtaposing her with and her lack of life experience which i think was the explanation given with mr warner and mr mirlande who were both relatively young and didn't seem to have much life experience how do we assume or the trial court well as your colleague has pointed out we have the ability here to reassess the without life experience on the jury now i should note that these two there were two prospective jurors who people did not challenge the end mr wong mr belin they were both they did have some informant which is williams did not have and that's contrary to what the district court found which i think was just based on a misreading of the record is as we explained in our brief they also those two jurors were not satisfactory to the defense the defense did strike them so it's not you know these are not necessarily challenging jurors for this reason you know you can you can have priorities let's say in jury selection you don't want a jury that has a somebody who's too young or doesn't have life experience just in general it's not a good idea whether for the reasons  being the case i think it's a rational concern it's not the greatest concern you might have a greater concern about people who are who are living with convicted murderers you know who killed drug dealers you might have a greater concern about somebody who appears to  have some mental issues so when you're in a different stage in the jury selection and when you're facing the prospect of a whole new unknown veneer showing up that might be very bad and you would have very few challenges it makes