thank you good morning my name is melissa harris and i am a professor of law at the university of montana school of law serving in perera lee for a year as an assistant federal defender in the district of montana i would like to reserve well my argument obviously is about the third prong of the baths and test here we know that the prosecutor used all six of her peremptory challenges against man and we know young and we know that at least three women were seated on the jury who did not have children one of whom was young i say at least three there was another woman who did not indicate on the fourth whether she had children are not discrimination and the answer to that is clearly no it did not and ultimately if the trial court's responsibility in the third stage to judge so you might view the judge's statement as a third stage conclusion and the second stage to no confirmation and the question is who has the duty to to raise like the record  kind of tilt me towards thinking it's an affirmative duty of the court seems a little odd to me to put the duty on the court so i'm a little troubled by that your honor if you're precisely right of course that the question is whose responsibility i court but the question is if we were just saying what the procedure should be anywhere hinting at a player reasoning what what should we be saying because it does seem to me that  being the defense attorney's burden you just don't in those cases have any requirement that the defense attorney do more it seems to me that the duty is with the cour there's you suggested judge reinhardt that ideally the court might say something like all right defense counsel here are the reasons with your response and that one could say nondiscriminatory justifications offered its conclusions are entitle to great deference well i think that also means that it's the trial court that must do this and here one could could in no way and didn't add anything then the judge says i reject the benson challenge is that enough or does the judge have to say let's take a look at the comparison of jurors i think that it's not enough because i still think the court has an affirmative duty our argument is not that comparative analysis is required in every case but we have this circuit and both mclean and turner and bish op too i believe saying that comparative analysis is appropriate in this kind of case we also have the second the third the seventh and the eighth circuit at least saying a comparative analysis i what one should do in this kind of case so we may not be absolutely required but i think if we are talking about what would be the optimal thing to do then i think the judge has the responsibility the judge should say defense her demeanor as she goes through these reasons i think she's credible i accept but there's no comparative analysis i think that would i'm sorry that would be insufficient in this case and that brings up the burke versus bork issue which is that credibility in deference to the judge determining credibility of the prosecutor is more appropriate in a case where the prosecutor says i have a bad feeling about that person or that person looked a certain way but courts versus board makes a distinction between that type of case and the type of case we have here where there's objective evidence of the because it's a tough case for the government it's a tough case and it's one that i believe it or not have to start again with an apology for a mis statement of fact in our brief i page eleven of the brief it cited that mr mullen was struck because of his youth and because the jury questionnaire did not indicate where mr that mr mullen had any children in fact that's incorrect the record is clear that he was struck because of his youth and because history questionnaire indicated he had no children not that it was not indicated so with that issue here that this is the bass and case that it is there's a gender issue here and that you are to give great deference to the court's finding that is the standard in this case and will what was its finding as plausible as mom's vision finding i don't necessarily agree that that jury and i guess the one thing i first want to start with is a disagreement that in fact this ultimate burden is on the court because the most recent supreme court pronouncement on this issue perked up versus elem the one thousand nine hundred five case that's very clearly the ultimate burden of persuasion rests with and never shifts from the opponents of that strike and so in fact it is the defendant in this case who had the burden of persuading the court then in fact there was a  discrimination of if then they had the chance but then made the challenge and so it was an interesting challenge and the prosecutor immediately stepped to the plate and gave her reasons for the challenges and then the court did this rather truncated second and third reviewed the jury questionnaires and if it's because these people are young or because they don't have kids then here's these three women at least one of whom is young and several others who don't have children and i think that's an absolutely untenable position to put a court and now what if they didn't have  it is waived and i believe that mr harper argued that in her in her free that in fact since he did not raise that did not make any comment on the judge's ruling that that has been wa plausible and then the judge you know could have been a pause for thirty seconds the judge might have looked at the defense counsel the defense counsel and either shrugged his or her shoulders like i have nothing to add and then the judge rule that's impossible to do because each one of these jurors have different characteristics there isn't a specific female juror that's identical to a male juror that was struck by i don't know in in their relevance areas that we're supposed to consider ability that were struck were nineteen years of age and there aren't any females that are nineteen years of age there and i think it just deprives the prosecution of being able to make a clear record for the court of being able to explain it if in fact the defense counsel gotten up and disheartening in any way but assuming we find us that's an error i'd like you to address the question of relief because you know it seems to me one way to view it as if there's a bad scenario that  new trial if there isn't maybe you can reaffirm another way to view it is that if there's a pattern there and the judge didn't do step three that we just want to reverse the conviction now so i don't know what the and if there's any case trial and so i mean obviously you know if in fact you find about an error united states what of course prefer not to have to put this child through every trial because the defense attorney didn't make the record that was necessary for the court to make a better beth and finding but i of criminal the family through the city center the only problem with that is is we're not giving this court the benefit of the wisdom that you have now of saying you know i think that there needs to be more than s and i think that there needs to be some further discussion and i think there needs to be some burden on the defense if they don't agree with what in fact the court has done to make a record on it so that you have the ability to review that in the obviously myspace doesn't have that so i did say i believe that i can't give you any authority for phrase i guess the united states really has nothing for there i think the issues are very well defined here in terms of what the batson issue is i just believe that there ought to be in this court sets forth some significant l guidance to the trial court about whose responsibility this is and then the question about whether that can be applied retroactively in this case to judge had who wouldn't have the benefit of that obviously is a question i think we need to keep in mind is there were nine women and three m which the juror him or herself has the i want what i would like to do is get away from the the defend the defense attorney has this responsibility and get more into the prosecutor had a responsibility not to be discriminatory and we absolutely know that these reasons were pretextual we know that because we can look at the juror questionnaire a factual determination on the third prong now that's not the same as taking it back to the trial court but in per cat itself the u s supreme court said that there was no third stage of bats and done for cat is really the second comparative analysis and the government could set forth its counter view if it thinks it has legit reasons but the government had a chance to do that already they gave their reasons and presumably the district court judge knew the law it was out there and so it seems to me somewhat unfair to send it back and say ok you got it wrong legally here's your new change because the because the court didn't ask them to and it's the correlation to does not i would say that i'm nearly out of time but i would just like to make one point i don't think this really is a waiver case i think it's about what the third stage requires and i've also never seen a batson case where because when the defense attorney did object in the beginning where it was why violator i think they didn't say more later i haven't seen one that has