know and i think i can do that i hope i can do that because i've been practicing criminal defense for some seventeen years now and it's the most appalling transcript that i've seen a great judge kleinfeld dissenting ramirez versus castro and your on a pointed out that if a b s petitioners arguments require subtle parsing of controlling authorities well that's not going to get the job done and what i respectfully suggest to the court is that there's nothing subtle about th conclusion but didn't the prosecution by offering the specific reasons in every case make up for their well main arguments for objective and reasonable miss is that the court the trial court never engaged in the step three analysis at all so all that all of the record reveals is that the trial courts that they're listen if you're doing insurance defense and somebody says well my son had a big fight with all his insurance company that's a peremptory challenge i would imagine though i've never prosecuted that if a juror says well my son's been in trouble with the law that person is going to get peremptorily challenge and it just doesn't matter what ethnic group they are and they're going to get challenge well i have a couple of responses to that first of all you want to use the word you know that's a good reason and this court has said in the case protected gratz right and that's what this court said and paulino this is the quote it does not matter that the prosecutor might have had good reasons to strike the perspective jurors what matters is the real reason they were stricken well that goes both ways if the person strong had been in trouble with the law which would be in moncrief textual ethnically neutral reason but the real reason the prosecutor struck the person was their ethnicity then it would be back in violation right here e i submit that he couldn't tell just listening to these reasons whether he was lying or not what is required is enlisting the aid of counsel and looking at the record and so you know i understand fully that arguing that an officer the court and a prosecutor as a lawyer is not the quickest way to a judge's heart but i have to do it in this case and i think i can do it because of what he said about challenging lewis one of the expanded jurors and this is well this is the clearest lie but it's only one said about louis was this and lewis had been previously convicted of public intoxication or public drunkenness and his exact words after after in justifying the challenge to louis were these i as well so my whole point is yes on the face of it these things are you know good or legitimate reasons the only problem here is that they're clearly pretextual and no court ever examines it certainly not the prosecution hispanic juror on the grounds that she's too pro prosecution i'm worried i have to protect the record against an ineffective assistance of counsel claim down the road the defense counsel should have objected and struck her she didn't so i'm going to do that to avoid that you know i suggest that's preposterous and that's yet another lie and then the third one that occurred during jury selection is ginnell another hispanic woman one of the reasons he gives for striking whether even reasons of protection will or not and here you have the california courts you know just absolutely refusing to apply the most meaningful analysis based on you know state law that says we don't find th how do you tell whether he live he can tell that he lied for all the reasons i've just gone into well it's bound up and reasonableness i assume i don't know if you're not going to make a separate determination we're not a fact finder trial court in babson issues we're going to need to see a clear record that the trial judge did what he was supposed to do which was to make a sincere and reasoned evaluation of what he was presented and there's half saluting no evidence of that at all and i spent all th common so that's an error and one you'll find that leads to many reversals is where there's no clear record of the of the trial courts reaching step three in that sense to determine whether the justifications are protesting or learn not and i submit and i would imagine in alaska most of the judges your former criminal defense lawyers and so i'm not refreshing i'm not experienced in a system where the judges are all ex prosecutors  but i am my experience is judges give a break to lawyers generally all sorts of lawyers that when in doubt they assume the lawyers telling the truth and  it's usually a good way to resolve these things accurately actually and in this case when i look at the transcript it looks like the prosecutor gave a bunch of reasons for a strike some of the reasons for me as you have pointed out however and i think most possibly all the cases the prosecutor gave multiple reasons not just the phony reason what are we supposed to do with that when we're deciding whether the state court unreasonably applied perhaps and i say your honor so that that the fact that we're dealing with a prosecutor who's giving clearly pretextual reasons shows that he's motivated by the for their own racial animus is proven in the school that to me doesn't follow logically i'm thinking suppose you ask me why i don't when i was still crying cases why i don't like a particular jur and i say well it reasons one two three four and five and then there's another juror and reasons one and two pertaining to that are but i don't strike them well that may be because i have a limited number of strikes and he doesn't have three four and five and you don't look that bad to me it doesn't mean that i was lying when i said reasons one two three four and five motivated motivated me to strike the first one but how can you say that this prosecutor wasn't  besides just you know this is comparative analysis that wasn't performed by the california courts don't forget i have a whole separate section on prosecutorial misconduct where i've listed another five or six dishonest things my observation when i was a district  hair and excessively casual manner i don't know whether it means he was a hippie or a biker or or what but he didn't look like a guy who's going to support a man well look i hope your hon other things that this prosecutor relied on may play a legitimate role in the exercise of challenges reliance on such factors alone cannot overcome strong objective indicia of discrimination and what we have in this case is exactly confusion time after time i've been doing this case for five years and i point out that there has been no date procedural default on that mission of the guilty plea because there's a california case that's reasonable doubt standard it never was because the trial lawyer said i moved from mistrial instead of i have jacked and that is objectively and reasonable no error is more egregious then as every court that's ever considered the issue i challenge because of their group association rather than because of any specific bias and then the prosecution state future state in reply i think you hit the proper tests only on the head what really matters is that you listen to the reason the comparison with mr o public drunkenness bill very little life experience no family no real ties to the community he's a truck driver this is not someone of prosecutor would want to keep on a jury in in the parties and acknowledged relatives with nearly identical types of criminal convictions or encounters these are not prosecutors type of jurors this is not being racially motivated forgot i had those drugs in my pocket or i would have used those two in light of all the all of the defense witnesses and the jury obviously rejected their testimony outright appeared to be lying on the stand and they all had unbelievably other words i once knew it was there that i got so high on the drugs already shared with my friends that i forgot or i would have used that too that's what i forgot me and that's what the officer testified to and that's what the jury obviously credit  like there's no objection there's no that request i make sure it's limited or there's anything that redacted and then the defendants are asked to read it and testify from it so all of these things came in in stages and yet not one admission of a withdrawing guilty plea is a nuclear bunker buster and it cannot be overcome with some kind of harmless error analysis in any case but even let's look at the facts of this case just briefly it's not a case with conclusive evidence of guilt it comes down to when twenty excuse me one point one two zero yes and you know kelly did not address the specific instance of the admission of a withdrawing guilty plea and her confession yes but but  on that point that a guilty plea is different than a confession it's a conclusive determination of guilt and that's what if you have your law clerks review the landscape it's not that many quest got to think cases on the issue i think judge t g nelson in this concurren specific instance and if you look and when i talk about judicial unit unanimity it's not only on the error regarding the admission of it it's on the per se prejudicial nature of the admission and it's on the non wave of all nature of the of the problem and i'm to have several friends who had alcohol problems in the seventy's a white schools kind of a wild place in the seventy's during my life unlike today so my experience argument ok well i'm not sure i don't call in the record whether the hispanic juror had or it was a recent the light or not and i'm not sure the record reveal that fact but one thing i don't want to get lost in the  you know i really need to make this argument is that we're dealing with a basically dishonest prosecutor in this case if you look at the last section of my brief as i said somewhere it's a veritable catalogue of abuses there were demonstrators lies and false impressions that he hear arguments in the last case which is marking the first as filer now in this case we will only hear from the petitioner appellant because the warden did not file a brief