issues before the court are first whether the representation of blacks on the allegheny county jury pools fair and reasonable in relation to the community what's the appropriate nature of the comparative disparity the absolute disparity was a combination  violation but that second issue that is before the court of course is concrete what does find under the second prong that there was under representation the court must consider whether that under representation was due to the systematic exclusion of blacks in the jury pool and that this is an exclusion of the result of the jury selection process i would like to first address is the neck exclusion the question of under representation absolute comparative disparity those numbers are set forth in our brief but if you have to field questions later turning to systematic exclusion systematic does not mean intentional systematic doesn't require showing of bad faith systematic under there is abundant evidence of systematic exclusion specifically in the years leading up to mr howard's trial the press documented the exclusion of blacks in the jury pool in allegheny county the legislature was conducting a study responsive to the exclusion of blacks in the jury pool the pennsylvania supreme court conducted a study mr howell in his pretrial motion offered unrebutted statistical evidence from an expert that showed over fifty percent under representation of blacks and then we also know from the time of trial in this case that some judges will now be in a county court of common pleas for themselves overriding the jury selection process what i mean by that is that at least two judges in the record judge machon and judge not house i may be discussing the names each of them were were allowing defendants to select from multiple jury panels were allowing them to go back day after day until counsel was satisfied that there was a representative jury panel from which the defendant could select his or her in this case mr how it was for how it was not permitted any such accommodation instead he chose a pen his jury panel had to  there is evidence in the record particularly the pittsburgh tribune review article that was published two years before mr howell trial that not only was there under representation but it lacked for being summoned for jury service at a rate of half but the evidence in the record and i would i would commend the court to the article entitled a jury of peers and mr hauser study that impact his study analyzed forty five thousand jerks summons and to speak concretely to give an example of from his study and from that article that's in the record in his classification of different neighborhoods in allegheny county be classified as white neighborhoods that had based on census data over ninety eight percent white residen township neighborhood that at the time of predominantly white the three hundred fifty six jurors were summoned and the population the jury of population of the two neighborhoods were similar but it is the issue before us how to fix the problem no you know so he should be force is th court the statute was amended the jury selections that title forty two section forty five twenty one and also a new statute was an act that same title section forty five twenty one point one that created a statewide jury commission and the point database that then the counties could draw so instead of just penned up instead of just voter registration which each of which have theirs there are social studies about mean about those records are also in the federal stand should write the jury selection service and that right there so on prong three of during where what's the basis for systematic exclusion of a damn newspaper articles and stem some interest by  legislative bodies so allegheny county needed to do more at that time in two thousand and two the article was published in two thousand and three this is the senate and the joint government report was issued two thousand and three the state supreme court issued a report each of which disagree simply because there are significant minority populations that are less than ten percent of the community and a court doesn't apply a strict numerical cuttle so you excluding an eight percent minority from from a jury veneer entirely would comparative disparity are there any but you have any case is there stand for the proposition that we're absolute disparity is not deemed to be problematic but comparative disparity is that that's sufficient to show under prone to a problem i would submit that the cases don't they don't present the analysis as a clear hurdle number one absolute disparity and then surmount hurdle number two comparatively i agree but that same case the garcia drop his case had a comparative disparity that was lower than the comparative disparity in this case as to other cases preston versus mandeville custody the vs are which is the u s supreme court case and even turkey found another older supreme court case in some of those cases there are either overt non non fishley neutral policies or or a sort of non objective jury selection policies so that there are some differences but the numbers certainly opinion was consistent with u s supreme court authority that is so no not exactly will first of all i think we can agree that we're not looking at clearly contrary because there's the material such the facts are very easily  argument is that it was an unreasonable application of during while absolutely concede that what the pennsylvania court did was essentially say we recognize you're raising this under darren but we're going to answer it under our own right but including the tenth element that wasn't the supreme court didn't include in their nose so the middle more difficult burden right so that is certainly one way to look at it but why one of the ways we look at they said that the preservation of supreme court and it includes is inten requirement the u s supreme court and during did not include that record but the argument that i think that could be made and again to shown a reason why application it's not just that pennsylvania made a mistake it's not that they were incorrect it's that their ruling is so i'm justifiable that it's beyond all possibility a fair minded disagreement and what i'm suggesting to this court is that when you read the darn opinion and you look at the actual language of the opinion when the court is addressing the third prong systematic exclusion it does not mention intent explicitly that is absolutely true what it does do instead is it looks at the jury pool process in that case it pinpoints exactly where the exclusion occurred and it concludes that the exclusion of women was due to the process and that they excluded and discriminated against women and i do think that there is an argument that can be made and it was made in the brief that there is still room for some disagreement constitutional violation and i'd like to pick up on the systematic problem the third prong of that tats when we look at that both this court and the supreme court have said that in considering whether or not there was systematic exclusion we have to look at the nature of the process of the jury pool and as was just pointed out the nature of the process in allegheny county at the time and it still is today is that the master list comes from randomly selected individuals from voter registration and they supplement it even though they are not required to do so they supplement it with driving records from pent up now voting voting registration lists has been approved by multiple circuits across the country it's in the federal statute it's how juries are pulled in this very courthouse and not only did allegheny county that they took it one step further and they supplement it with driving records now the supreme court later in two thousand and ten in the smith case they said that taylor and durham are two examples of what sort of systematic de facts would qualify as violations of the sixth amendment and they indicated that the defendants in those cases readily demonstrated the exclusion with particularities the appellant has not done that in this case he hasn't even come close and and the courts have also indicated that we also have to look at the length of the time of the alleged under representation this study that the appellant is relying on the study that was part of his record ok it's not the study from the tribune review article i want to point that months but the study that mr dr carnes i believe he went by to under took was six months but more importantly than that it he surveyed approximately four thousand five hundred people now the testimony of that same hearing indicated that in a given year during that time period one hundred thousand questionnaires would go out to people from the master wheel if you will the master list so he really was looking at a small small subset not only was he not looking at the master real he was looking at who was called for jury duty on any given day during that six month period ok so you're talking about a subset of a subset of the master wheel in addition to that dr carnes conceded that he didn't know if people filled out the surveys accurately he also testified that if a certain minority  group does not respond to the questionnaires then that would skew his own figures and his own numbers and those are things that we just don't have the answer to and that's why his study really isn't a very reliable study and certainly doesn't give us the numbers that the appellant would need in order to make this constitutional violation by lation argument excuse me the tribune review article that is not evidence that's also my review of that is that it focused much more on people that actually showed up for jury duty versus the jury pool so i think that when we look at the systematic exclusion here the problem is that he hasn't pinpointed that there is anything in the nature of allegheny county process that inherently excluded or discriminated against excluded people and he hasn't shown that there was any let that he hasn't proven that this underrepresentation allegedly took place over a substantial length some time if you took to sort of make it hypothetically answer to that question because there has not been a bright line rule by the supreme court and even by this court disagree i would agree and i would also note that this court has held that i believe the range that they gave is two percent to love and a half percent has not constituted under representation court said that fourteen point one percent absolute disparity would be considered borderline and the comparative disparity i don't recall your saying that forty was forty and here we have fifty four point forty nine well i w think the problem with comparative disparity and the system pointed out by this court as well as the supreme court is that when you're looking at a population that is not that is a smaller population when looking at the population as a whole that any distortion is going to be exaggerated and that's why the comparative disparity method has been criticized a lot of times and while i understand that the appellant's position is that african americans make up a large minority that is true but it's still not a large population by the census numbers it was still a ten percent population so i don't think the comparative disparity method is the best method to look at in this case so to answer your question i don't think that there is a magical number that i can present to you and say this is what he would have to show but i do think that looking at this court's decision and it's again there's not a bright line rule but this court has indicated that his numbers are simply not going to be enough to to meet his first and that's what the district court found as well i really think though that the the fact is i don't believe that the appellant has met his burden under either prong two or prong three and one thing i would like to address and i think it goes more to the second prong and why his numbers and statistics should not be really that reliable in this case but in a way it really taints the whole matter and that is the fact that dr carnes is test doesn't produce strong evidence and we know that when looking at prong to the court is supposed to consider the strength of the statistical evidence that's been presented dr carnes only studied the four thousand five hundred people that showed up for jury duty during a six month period now the way jury duty works and this is part of the record is that on any given day certain groups are called for their number so these are the group of people who were called in that day he does not account for the master list which this court in weaver said that undermines the strength of any statistical evidence that he does not account for the racial make up of individuals who received over one hundred thousand one hundred thousand questionnaires he does not account for the racial makeup or make any any effort to account for the racial makeup of the forty one percent of individuals who just did not return the questionnaire so i think really this isn't a matter of the four thousand five hundred people not being enough people it's not the size it's actually the sample itself and the sample that he looked at and as i indicated this court in weaver found that the expert in that case that his statistical evidence was the language that was used was far too weak and when they made that conclusion they were referring to the fact that he did not analyze the unreturned questionnaires and they said he should have a counted for the statistical impact of the unreturn questionnaires so while in that case the expert also made a mistake of misrepresenting what he had done he represented that he had looked at the master wheel when he had not and that was pointed out in the reply brief and that's true but this court when discussing his what he did do they made that finding very clear that the fact that he did not account for unreturned or unresponsive individuals impacted his statistical evidence and it did so negatively so for those reasons i really think that the appellant has failed to meet his burden under either problem so i do think that he's really failed to show that there is a constitutional violation so just as the district court kind of skimmed over the idea of whether or not pennsylvania had he looked at durant in correctly and said we're still going to deny relief because you have the calculations that show that a sampling of four thousand five hundred is a relevant and accepted the testicle analysis for the sample that was presented here i would also note that the commonwealth at that trial didn't offer specifically just to summarize the courts that are addressing these claims that accepted previously stipulations the parties that accepted studies of jurors who show up at the courthouse that accepted studies of the master wheel that accept the alarm bells had sounded in allegheny county it was the newspaper the legislature took notion took notice the president in court took notice your representation was really substantial that it's not in the record but there were other counties where there was over representation