please the court cynthia hahn for as faldo as far as i can solace the appellant now this case involved what is known as the struck jury method and other words when you wave struck and that's how you get down to your twelve jurors you have twenty eight for your main jurors and then four for your alter net's the ok now this strike happened after exercising one parameter isn't that right by the prosecutor yes in any way when he went to all the rest what is the logical all right isn't that right out a not a race neutral reason reason what else would the prosecutor say i mean when you wave your parameters you're basically saying i'm willing to take the jury's presently the twelve were in the box i was in where i don't know i wasn't the trial attorney ok mostly i'm trying to figure out how it works because if there are twelve in the box and i wave from the get go or after exercising one and i know effect striking a minority by doing that that's one thing if there's somebody outside the box is there twelve in the box and you're going to i wouldn't know but you know it's still now because as they're called in order that's the first one is one two i don't know but i've had ok so everybody knows who george twenty eight is i'm just trying to figure out if i'm waving after my first parameter e what is the rest of the jurors who are there what does the jury i think i'm getting at that point well if i would argue ok the prime aphasia case this everybody knew the last tour was a hispanic right number twenty eight number twenty ok everybody knew that if you waived relevant for the panel is not right well that's part of the purpose of my argument is that the judge did see a problem with it and he did render a decision so now i'm sure the supreme court and the first through ten implications not for just this case so i'm trying to understand what happens then the judge said and convert consoled that arizona law there has to be more there has to be something more and you say there's something more in this case to judicial notice and the ok let's suppose we have the same situation though is what would the judge have done then the judge would have said ok you're saying we should find it based on these facts that there was a your case now the prosecutor comes back and says the reason i struck her way way was simply i'm willing to accept the panel as it exists that's a race neutral reason is that do this and because of that i don't find basically what he said is i don't find your reasoning credible and as you know on her argument when he struck the second don't you have even a stronger argument with respect if your ms martinez number twenty eight actually getting on the jury given that she was number twenty eight twenty eight well see that's the thing is our side did  chord in palo and the trial judge came out and said it has to be something more than just a waiver you can see from the actual record the trial judge gave the defense every opportunity to try to present any evidence to put it on and they had no evidence they couldn't our evidence was that of race and i take it that doesn't make a problem facing case i know your theory what the judge said well ok but you know i want to keep mr martinez and i'm going to actually strike twenty seven you objected why because we came in under a system of a blind draw and if he jumped over he's violating b object because he was going outside the system and to be honest with you was emotional reaction also that i've been attacked in effect being called a racist when i was just trying to get the trial going now the only question that's in front of us now is not whether there was a batson violation but as i understand the case in its current posture is was there a prior case which is a term of art triggering you know getting to explain know kind of made a state of the plants ruling and then it got a little more heated and we go to the rules on judicial notice let's have some evidence here because this is not something widely knowing in community let me have my say at which point he backed off and said there was no batson there was absolutely no evidence of it now i was just defending myself at the time and all of that i was a little hot because i thought it was improper i don't think i did anything wrong i stand here to tell you i would do the same thing challenged any minority who has no history of even after the second time when we do a little we have the same sort of by chance it turns out that mr lopez is number four and the effect of waving has exactly the same consequences even after it happens the second time  there's not enough ground for asking you to explain the court is asking me a question would set it up that i have an affirmative duty to strike somebody on a list in order to get someone further down the line we're never get to the last minority mr lopez i believe it was because he was number thirty two on a blind draw that came out of the system i suppose that in this case if you had exercised to procreate at the outset and there were five more jurors in line who suffered at least some of them suffered from the same defects apparent to the judge that the two structures and then you waved otherwise objective characteristics that might be enough do you think you create a crime and face your case no i feel now with i was the more i mean what is it objectively because the way the structure  that a lets you get to a minority jury without creating much of a track record and as is my question to the beginnings that your response was look i'm it's a normal response that one would get when you wave your primaries i'm willing to take the jury that was your response so the question is how do we ever get past prime of facia case when in fact a prosecutor not you were not assuming anything in this case is in fact manipulating the system we have to rely on the judge to have a track record with that prosecutor how does that work in an individualized case from a defense standpoint for your counsel relying on judgment givens knowledge vishal notices you say that's not fair so how in the structure of the system do you create the crime of fishy cases defendant when in fact what you're doing is actually striking why not the only minorities off the out of the jury pool jury as it as it came to you you but you did exercise one primary and i did so i judge saying on the one in this particular case the guy i believe was a night worker and look like he was kind of goes you know off for not paying attention three which is the judge's ruling of whether it's credible and once you get there you can go back and decide if there's a prime aphasia case and that's the supreme court law under hernandez and  is the law in the first through the tenth circuit i have not been able to find a circuit that will allow you to go back and consider whether there was a viable prajna thank you case after the judge has made its ruling on the prosecution supreme court hand as one through ten circuits i think it's time page seven of my reply brief yes it is all agreed that you cannot back up to address a prime a facial showing once the judge has the government why and the government has responded the court asked for a government response at e o are sixty one and the government stated its answer on ego are sixty two and it even not and the district court can either if you send it back for retrial more or no knowledge in this case what happened was you know that he could not go back at all also he cannot go back once he's made his