the honorable of the judge of the united states think court arbitrarily excluded the critical testimony of mr richardson's well qualified eyewitness identification expert not because of any dahlan submitted all you are unfair prejudice but because of her failure to observe the li mr richardson was convicted i'm happy to be preceded by discussing those three issues in order in which the briefs presented them but of course i don't have to take any questions from the court along the way as well if you the st issue presented in this yet the trial court excluded the testimony of mr rich since well off i would it's identification expert who would have testified about the very circumstances that this court in the harris decision made it clear provided the gentleman basis for an eye witness identification expert to help the jury these are circumstances like the effect of stress the effect of alcohol cross racial identification how exposure to media could affect i witness his memory and contents how a opportunity to present that witness not because the trial court identified any limits on his probative value or b trance the trial court identified any response or prejudice the only reason the trial court excluded it even if i accepted it you could read it the state court ruling to be as limited as you suggest you know we've been instructed repeatedly that  judgers them thank you very question to be clear we're not quibbling over the state courts for three balancing our position is the state never engaged and that the state court never engaged in that policy and that's clear from from the record it's clear from the state courts need to read to me that the point of that is is that yes that is the facts of the facts that is going into the horror of rebalancing but every time you do have or three balance you're considering an array of facts they highlight that fact but what you seem to suggest that that we have to read the appellate court decision woods talks about balancing we've got to read this the frog course decision as only about that single fact that seems like an well you're on a certainly on an a v s this court does provide deference to the state court but here i think that it's impossible to read the court's decision as connecting that factor in any of the factors or toss up with the the exclusion was arbitrary because the court did not focus on dancing probative value and prejudice instead the rule there was something called the court apply role for three through something called the gregory rule in  court said that specific application rule for a three was hard and disproportionate to the purpose of who for three and here in north carolina courts make clear that the purpose of rule for a three is to ensure that and in this kind of circumstance to ensure that an expert witness can provide appreciable help for the jury and our point is that by excluding the witness based on her failure to observe all the eye witnesses the court didn't link that factor  to determining whether or not the expert could have provided appreciable help to the to the jury it didn't perform that kind of balancing that the courts are wired to do under rule forty three dollars in the homes makes clear when a court applies rule forty three when it fails to conduct the balancing required under that and and here there's simply no connection between the facts that the court stated and either any limits on the probative value or this case for example where the incident happened in the blink of an eye a car zoomed by it was two am it was dark all the witnesses had been consuming alcohol it's not a bar at a nightclub there had been a fight every one stressed dr ben wall and all would have been able to explain to the witnesses how for example those circumstances leave gaps often in witnesses memory and they may have this expectation dr or they fill in those gaps with different facts maybe they do recall from the evening so for example if they had seen my client in an altercation earlier in the evening perhaps they feel in those gaps about who is running to the car maybe even who is in the car based on that prior information and not based on accurate memory of the actual incident and that's information that the jury could use and certainly the defense would have used to undermine the state's prosecution here but  having lots of eyewitness testimony and it not only told the jury that in closing but in march through all the eyewitnesses testimony it bolstered eye witnesses credibility it said things like the state has a duty to put credible witness here these kids saw an event that seared in their memory they're never going to see anything like this how could they you know ever forget this and in fact dr bent on da would have testified that it's the exact opposite because of the stress of the situation there actually were the record makes plain your honor that immediately after the shooting the bar owner here went to the internet pulled out my client's picture based on his involvement in a prior fight and gave that picture to the police and within hours there were  statements by the police saying we know that mr richardson did this we have the death penalty in north carolina there were wanted posters of my client all over town there is media exposure extensive media exposure all over the newspapers and in the news and several of the witnesses conceded that they had been exposed to that so that that media both before they made their some of them before they ever made an initial statement and certainly before they testified in the case dr  when i when i look below at both the a b s application and the rule fifty nine and easy filings i don't see any suggestion of that in fact i see the are you meant that this is an improper application below well i think you're right your honor that that my client below argue that this was an unreasonable application of federal law and we think that because the as as you mentioned on appeal we argued that because the state court didn't allow the factual development here to occur and under this court's cases and winston won and winston to that that means the trial court excuse me the state court never decided this issue on the merits but even pertaining to the statements and then they're pretty agree just statements in there where the jerk anderson says that he was pressured by these other jurors who were yelling and screaming and if using him of voting not guilty only because he was black and he leaves no doubt  zero what is the argument that they relied upon below that we can look to for admitting the new affidavit right so i understand your argument now on appeal is that it's a new claim i don't remember anything that was directed toward the defendant in that there was only one speaking juror so it's on that basis that you would have to claim the speaking juror head an that that is clearly a pina rodriguez claim but the claim that the speaking jury or did not have animist toward the defendant but animist toward a bach case just from a few years ago the supreme court makes clear that racial animus the supreme court is committed to eradicating racial animus from jury trials period and so we think that even if the racial animus were not directed  project the same racial animus towards my client who is also a black man but then the nd issue is as you describe it your honor it's whether or racially and i said was the significant a significant factor in the guilty verdicts here and we think  bow and use racial time things and say that that love not all there was no adam was because it was not directed toward the defendant the whole point is independent juror that we protect them great if we don't want people to talk to them risa question them sometimes they can go back to their homes here's a case where you're tall directly and more important in this case because there was an allen charge because allen charge because you know as a defense lawyer does the worst job there is because in so many words it's saying listen you still have your independent judgment you ought to listen to what other people say that intensified being told you  mess that's that's right judge gregory and again we're asking just for i didn't cherry hearing for the opportunity to bring out the truth that you're talking about but the jury anderson has never had an opportunity to testify about these statements and that's you may please the court i'm nick blogger's special deputy attorney general north carolina department of justice for the respondent i'm going to start with issue three with the court left off just now racial animus and stereotyping like the is substantially similar to a matter of this court addressed in the united states versus bush at a decision based on pin your honor it is both the united states supreme court and this court have recognized that a jerk coming forward with compelling evidence that a nother juror made clear and explicit statements indicating that racial animus was a significant motivating factor in that juror's spoke to co defendant an african american male a several firearms and drug related offenses he requested leave to interview jurors for evidence of racial hymns the district court did not add his request and b appeal on appeal burchett argued he was constitutionally entitled to interview jurors underpin your rodriguez because after the verdict a male african american juror approached the defense  told them about statements other jurors may potentially suggesting racial animus in concluding that the district court did not abuse us discretion in denying burchett's request to interview jurors in search of evidence that could be used to impeach the jury's verdict this court found even accepting our view and all the proffered evidence was reliable none of the statements here required the district court to fide that defendant would likely uncover evidence that racial animus was a significant motivating factor in the jury's but to convey that especially relevant to richardson's case this court reached the following clu conclusions of regarding evidence proffered shet ok regarding evidence that a white lady said the two of you are only doing this because of rice and that a juror said it's a race thing for you this court said even assuming that the white lady was a jerk these statements need not suggest that the speaker's racial animus in any way impacted her vote to convict they can reasonably be interpreted by the district court as a sort of offhand comments that the supreme court hell are insufficient to overcome the no impeachment rule and they certainly fall short of the statements presented in pia rodrigues in which a juror it's a female african american jurors request to be excused from the journalist shortly after the trial court gave an allen charge and shortly before the final verdict provides a good cause to interview jurors this court stated that hardly required the trial court to believe that when jurors request to be excused provides compelling evidence that another may clear statements reflecting a vote based on racial anim requesting to be excused after an allen johns we don't know but here this is different this is a person saying that this is that we don't know to listen when we have fact finding i was attacked because i was black  no no what is the threshold the threshold is that a jerk coming forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was askin if it motivated factor describing is not the jurors statement of racial animus what you're describing is mr anderson's in this case reaction to a question somebody asked ok that the statement super ship were statements and these are questions that's one thing but another thing on top of that the united states supreme court never intended pea rodriguez to be interpreted as richardson is arguing this case they never intended that and we know that in their opinion they set right after they gave the rule they said not every offhand comment indicating racial biased or hostility will justify setting aside no impeachment are to allow further judicially for the  what what what would be the when what would be the option that is not your i was talking about i don't talk about activist in my question to give me the option when it is not you said it can then i know logic that was suggested of the circumstance was not give me the one when it is not racial adams but the question in this case that was posed to mr anderson was not based on racial animus it was based on a desire to find out why he i think he said you voted that way because you're black that's not what he said they asked they asked a question are you voting this way because do you know richard since family are you voting this way because you're a black male about the same age as rich so they weren't discriminating on him based on his age they weren't discriminating on him based on who he knew and they weren't discriminating on him based on his race they were asking in light of all this evidence showing ritch indicating racial bias or hostility would justify setting aside the no impeachment are ok well just because the statement has racial animus for hostility does not mean that it automatically you get rid of the no impeachment of that the united states supreme court was very careful when carving out an exception to the no impeachment role to use a scalpel and not a meat cleaver to try to do so because juries are that important  depends on the impeachment principle in the united states supreme court towards the no impeachment rule promotes full and vigorous discussion by providing jurors with considerable surance that after being discharged they will not be summoned to recount the deliberations are still on the other side of that is a statement just like what happened in pure rodriguez st colorado where the fat d'oeuvres that i've believe this mexican guy committed this crime because he's mexican and i know from my job involves force that which are essentially the fact that mexican guys are more forward with women that they're more likely to commit sexual offenses against women so i'm going to find him guilty that's not anything near what rodriguez in that manner that suggested by mr rich some good then any individual juror would be able to come back and impeach the entire derby verdict post conviction just by coming up and saying i felt flocking in saying this i don't think that's the case i don't think that's the logic of it not the consequences of it you know it takes a lot for juror the to do this and a lot of times people  of guilt presented in state court proceedings months and play pickup basketball together at a local high school his being the person who identified richardson in the car substantially lowers the probative value of a i did witness identification expert and talk to him on the night of the shooting before richardson got into an altercation with bouncers outside a p c when sealy heard richardson threaten to come back and kill the bouncers he left because he thought rips it was serious as he was leaving sealy sorest and go to the testimony but she couldn't identify richards and also richardson is not the type of person who blends into the crowd he was the tallest guy there and he's a black male was very light skinned ok in fact he had the the reason for not allowing the testimony is that the defense was trying to tailor the testimony they only wanted their expert to testify as to the state's witnesses except thor and not their two witnesses there are two witnesses try to get up there not then me you talked about the you didn't say anything about those that you that's because you didn't hear them test but did you know i mean that's what that's why that's the art of advocacy but then i mean you preclude  taking the racial animus claim st and judge gregory i think you're absolutely correct that is nowhere near this case obviously here it wasn't an offhanded comment the german makes clear that this was the reason he changed charged the whole community knew about this case was involved in this case as explained there is extensive media coverage he had reason to fear from the other judges excusing other racial animus and as your hon  come back and testify that's really not at issue here we have a juror who's paying to testify and say there than an injustice was done here the only reason that mr richardson was convicted was because of racial an think that the my colleagues comments about how these statements could be could reflect racial animus that's just even more reason for the for the need for an evidentiary hearing here where again we're not asking to overturn the mentioned that he was familiar with my client with us from here with my client and saw that this it happened you would think he would have come right away but in any event he waited until two weeks before trial when he was approaching the prosecutor's son or child affected by the memory and his confidence but the jury was never allowed secure that i and my colleague mentioned that the defense was trying to tailor the expert witness of course as as you mentioned judge gregory that's what litigation is you try to tailor your witness the edge of her here never interviewed mr thorpe or heard his testimony you're right your honor the expert never saw his live testimony she she did read his testimony and she read all the statements in the case she visited the crime scene she had engaged in extensive case specific preparation here but you're right she did not see the i don't the it's testimony but doesn't it stop the and what if mr thorpe only had this many drinks over the night those kinds of things there's no reason as a judge gregory mention of the trial so the trial counsel at the trial told the trial judge that he could not ask  hadn't here dr van wand i was not planning to testify about any specific witnesses credibility she could not have testified about that rule six hundred and eight of the north carolina rules of evidence preclude an expert witness from testify about a witness his credibility here dr bent on da would have talked about these circumstances and he certain that the jury would have then been equipped to understand how these circumstances cut across the different witnesses and could have applied it to