focus at the outset of the argument today on the discrete issue whether there was an independent and adequate state procedural bar which precludes this court from addressing the merits of the petitioners claim stronger or weaker i think well argument should be successful i think it's just i'm starting with it for two reasons this is discrete easy to address and there's that recent state court case which is relevant to what i sent the court  female a white woman the fourth a peremptory the prosecutor used was to a third black woman at that time defense counsel raised the bachelor objection on the basis that the prosecutor was prosecutor's justifications nonracial non gender justifications for excluding those black women and then any further objections will be reserved to the in the jury selection prosecutor came back individual contemporaneous specific objection as to tubber off i think it's untrue that there was no objection as to she's a member of the class she's a woman he objected and as soon as the pattern became clear to him that perceived group bias the burden shifts to the prosecutor to provide race neutral explanations for all challenges involved and all the challenges involved or their challenges to people who are members the net class as i under stand judge sufficient it's not there's no state procedural rule that says that you have to raise a specific that's an objection as to each and every member of the class now as basis of gender and after the jurors had been selected and the trial court invited counsel to make his promise fashion case of class discrimination he began to the black women claim because she obviously wasn't black she indicated she was employed as a teacher's aide her husband was employed she had children she obviously came from a very stable background i mean it's clear that what he's arguing is that there's there was no obviously take an exception to the trial court's ruling and he did go on to say i think your honor they're relevant because there's no reason based on what they said other than their gender for the prosecutor to have excuse th offer a neutral explanation well i he did go ahead and offer one as to ms healey who was the fifth juror excused before the bass and objection based on gender was right and she was  minority woman he did offer an explanation so she did excuse me for an explanation but i don't think the question is whether the prosecutor knew or should have known at this point that she had offer excuses but i just want to emphasize the procedural context of the latter more challenge he was called to the jury three places another potential juror who had just been problem with him sitting on a jury that point what happened was instead of passing defense counsel used to challenge against the white male or non black male maybe hispanic or some other ethnicity comparing his responses and her reasons to the other jurors and potential jurors that she had no problem with that the only reason she got rid of lot of words in retaliation for the defendant defense counsel striking  a non blackmail from the jury so i just wanted to emphasize that point i do want to get to the misconduct  part of the problem is that she was about to say something you can bet your bottom hoots that and then well she may have just you know i think the problem with the the courts full of both you know before she stepped over by his objection and then she came back moments later the trial court tells the jury i'm overruling the objection the objection which stated in front of the jury that she she knows are not true and then she says what is the evidence that her knowledge is opposed to the knowledge of another system prosecutor the  one of the arresting officers testified at a pretrial suppression hearing that when they arrested him they discovered that he had a paroled warrant for his arrest she was at that hearing it was noted in the believe in a third strike life case with a defendant takes the stand and says i wanted to have backyard because that cop slowed down and i thought he was going to get me on a parole warrants and that's why i rang him and w that testimony that the prosecutor were not call or send one of her agents over to the parole office this guy look here's what the guy testify to  she gave for most of her challenges was she an excuse and i think it was but the united states supreme court has made absolutely clear that in the context of a government's constitutional obligation to act fairly when presenting evidence that questions whether the prosecutor knows or should have known not whether the individual prosecutor knows  united states supreme court has held that the state's duty to correct false or misleading testimony by prosecution witnesses applies to testimony which the prosecution knows or should they added the emphasis that is false or misleading and has concluded this obligation applies to testimony whose false or misleading character would be evident and light even from our information known to other prosecutors to the police or to other investigative agencies involved in the criminal parole and instead she she asked the jury to believe that he lied because there in fact was no parole warrant she didn't have to complete the you bet your boots  now the defendant testified that his motive for running was that he believed it was a a war now yes now his testimony was not taken as any is that neither side is in presenting the evidence thought it was sufficiently relevant to really prove which way yet the defendant legitimately could if it's the facts say i was afraid it was a warning that's the reason i write whether there's a warn or not that's the reason i ran so now very well founded and that wheeler bass in context in california i cited two supreme court cases the say exactly that the issue here is whether you need to place an objection on each individual's head that's being challenged and dancer i believe at's the rule then every challenge has to be faced with that some objections well there can be a challenge that is not that he is not susceptible to ultimately being based on a sexist motive there can't be a challenge that cannot ultimately be discerned to be based upon a racial model if we can discern a person's to be contemporaneous with the challenge you can chart of course handle print or even in various ways sometimes they allow the challenges to be made at the end sometimes contemporaneous i think counsel could have made a challenge to telegraph towards the end he could have let her be what was wrong with what was wrong with when he did it he said when he first challenged on the on the base or women this is a systematic exclusion of women no matter what color there are but he doesn't get around to that until he sees a couple of challenges of non black women what's wrong with them why isn't it time t they're still there still needs to be you still need to name who you're talking about and the reason for that all women well if you say i raise a i suppose that could be possibly valid or if it's accepted by the court at least that's how i make my prime official case i show you this pattern you have excuse seven and they're all women but sometimes the first woman has grounds for excuses are obvious to everyone and defense counsel or prosecutor thanks i'm not going to raise a bath and challenge so that now or later because i can i can tell that that's valid i can tell that those reasons she she hated police she hated the prosecutor i'm not going to bother with friday hands or point out that you're not making a specific challenge to telegraaf i see in certain words and basically given the opportunity to point out that yes he is part of my challenge she is part of my challenge suggesting that a general objection retroactively places an objection on the head of each person in that class and these cases mcgee gore and i think it's robinson don't suggest that and here's you need to go back and look at her but she was part of a specific objection identifying her now are you saying the court specifically gave that opportunity in this case well the court did point out as the district pointed out when the discussion of the groups was was occurring the court pointed out that something that affected by notice so groff isn't you're not mentioning told her office part of your specific will or objection and i'm not considering her such a complicated spoke up and said yes yes or yes i do intend to object to to make my challenge based on her as well and the court laid it out there basically given the opportunity to clarify that and he didn't and i think it's fair to assume that he didn't because maybe there was something he saw about soboroff that made her exclusion or her challenge i'm sorry obvious i don't know but there was didn't because maybe he saw something about that challenge that was obvious in other words she and i don't know what that was but he would be content to let her the challenge  went that's that's what i read from this record that he was not if he was content with her he was not including her in his emotion even though he was given the opportunity  had two minority people out of fifty in the room and the first one was a minority and the second one was a minority now you might say this is a pattern because this is right and you might hear an objection now when you hear that first objection that is when you when you hear that first challenge usually that juror is excused and permitted to go right you don't come back and re conscript sex or that juror is gone and when the objection comes then the batsman gets to the next one and then if the judge says well now i've listened here to nobody giving any now you've got to explain now you've got to explain i think everything you have been doing in order to make this challenge that is at issue legitimate am i wrong you need to correct do you go back then do you go back and say well now we've got to find out whether this number two that you excuse a week ago we got to go out and find her and bring her back because we think that well was he where or do we just look at the one that's in front of us why depends on the motion i think you you can and should discuss everyone and here cover off was included in the discussion of the pattern yes but as the trial court pointed out i don't see you defense counsel making her part of your wheeler motion specifically than say anything it's certainly not a perfect system and it doesn't take the it doesn't take all of them to be bad in order to make this one fall if any one of them is fall it's bad enough right because you can't get away with even a single discriminatory well fine or stan crock laid there or there isn't in so far as no pattern of discrimination was found those two women right and she of which she was a member of the class of woman was challenged yesterday that that was part of a pattern in philly saw something more that's that the struggle i'm having to see to say well somehow he's to be faulted for not having articulated some motion or assertion that this was foul when it happened how he didn't know well our position isn't that he had to do it at the time it happened but at some point in the process he needs to do it now that raises the problem that you point out well she's down the street now my response to that there it's certainly not perfect in that respect i think the council are i probably are charged with she can explain those but our position is and i should clarify that for the council was charged with making her fault of not making it at the very time it's just that he needed to make it at some point and he did me ask you a hypothetical assume for the sake of the question that she in fact did know about the existence of the for over is there any way in incredible moat he has an incredible motive to lie he's done this before the judge will read you a jury instruction that says if you find a witness willfully false in one part of his testimony you may disregard the entirety of his testimony if there was any really was i agree with that but no court has ever found that there was evidence that she knew and i'd like to explain why that's very reasonable not just because there isn't evidence on this record but if you look at the circumstances officer said i knew he was a parolee at large with an outstanding warrant the prosecutor here was not the prosecuting attorney at that hearing she was present there was an appearance on the record she was not the prosecuting attorney and out of this is a lateral prosecution thing or what have you but she was in the courtroom and i don't know him any more than math well imagine a felony prosecutor with a large caseload at a pretrial hearing some time before trial and this comment is made she doesn't know that hender however much later at trial she doesn't know what he's going to testify to let alone he's going to testify on the basis of his defense is going to be i thought that was a pro was she has no reason to to put that in the back of her head  nevertheless assuming that she did know i do agree it was improper however the statement was cut off the statement she did make that there wasn't any evidence was correct and proper and the jury was also instructed on the usual instructions about argument that these these these aren't facts these are argument of counsel the juries are presumed to be aware of that and on that now going to the i see if i may digress that i think my time's about up this is a classic tactical decision you've got you can put the warranty again but it's going to further damage your client we've got leave it out true it doesn't bolster his his testimony but it's not necessary for his testimony because he's saying he believed he had a warrant and that's what's at issue so he was a classic tactical decision and  extraordinary circumstance discretion of counsel nothing that warrant and should be should be given deference the same i don't know if this was raised with the same point can be made on the stipulation that you got two principal elements in a burglary charge and counsels asked to stipulate a way to stipulate away half of this case which is intent before trial before his client has testified i think it's emin for decision and the court will recess