as well to an otherwise similar unarmed black was permitted to serve that is evidence tending to prove this fall discrimination and this case is very relevant to have instant case because  r the prosecutor stated that the basis of the exclusion was the employment of the jurors husband who worked in a group home that tends to deal with delinquent kids and it turned out that there was also at least one other driver who had a similar end the brief it just shows all the similarities are basically there was nothing unique about the two black jurors who were a challenge to me interrupt you for a moment yes i just i cannot visualize is in the state crown court i presume there were twelve jurors perspective jurors drawn and occupied the box and during the course of selecting the twelve who are going to be jurors this is the challenge of kevin w occurred that i write so far yes and that the process went on until twelve jurors selected and for i presume sworn or maybe not but in any event those twelve were selected and during the course of the selection of the twelve who actually sat kevin w was challenged right so far yes and then the court proceeded to select a number of alternate juror that's right how many alternate jurors were selected  know at this point i'm not sure i think it was three to four alternates right at least to right maybe more yes and during the course of the selection of the alternate jurors virtue j was challenged right and then the trial for seated and did any of the alternate and we do not know whether the juror who was drawn to replace virtue j who i presume was not black we don't know whether that person ever participated in the in the decision making responsibility lies to say to the trial judge in the first instance here's what your panel is like here's what's going on here now it might be easy at the only plausible concern that we should have about selecting of an alternate juror who never served is that how it tends to characterized the motives that occurred in the challenge of the first year but i don't know also that the challenge to the alternate juror and also consider the fact that there's really nothing unique about about seven that's w that would that would differentiate him from the if we have the first challenge and that does not constitute a crime to face a case of discrimination calling for an explanation is the trial judge to say ok we're going to allow that challenge what i want this jury to wait here and i want to know what you do with these alternate so over here before i can figure out whether or not this is a crime fish cases to this first your what do we do in this situation now it seems to me on the surface and we have to first anything we have in the case ours is not well i'm you know i'm not sure about that but but the main reason is that delay that you can look at the altar had also as part of the circumstances me as just one question i may be confusing this with another case we have this involves a batson challenge we did not do not an african american sit on history as well yes there was one african american with him so that person would have been seated before we got around to this business about the this address where he had left some items was ninety yards from the mouth of the alley where the car had stopped and when he went when he ran and so it would have taken him just a few seconds  until he was warned that something was wrong because because the police op them and then yeah well yes it was it on the record and it was  that the crimes were completed before the accident what facts were presented to the jury regarding this getting out of the car ninety yards from an alley i'm sorry it's well you i think you've indicated that these matters it was presented and in the arguments remain to be during all the jury found presumably that he didn't reach a place of temporary safety that is a question for the jury under california law right now if the evidence was presented to them i me prosecutor did provide his reason which of course was that the particular jurors or potential jurors husband worked in a group home including with juveniles who had adjudicated delinquent and worked in juvenile hall now at this point the only question is whether that was step three a valid reason i bring it up simply to know that answer storable fact  under as a factual finding that requires clear and convincing evidence to overturn it on a twenty two fifty four the one and then the two and now turning to kevin w shoot all right but the legal issue here i think is your is being argued on behalf of the defendant is that there are other jurors who had similar characteristics and so that's a legal question is it not as to whether or not the two are you suggesting that somehow we are we have to defer to the weighing of those comparisons i think so i think i think that is clear and again sorry that's even if i didn't  reference to his research that pages three twenty four three twenty five in the e r i don't see any comparative analysis in there we jump to the next time it's presented is a a way should be granted in the first place case said well we're reviewing a state court decision this comparative analysis business was presented to the texas state court therefore if we're going to look back in the side and again i think it's simple we're jumping around a little bit or i'm driving around a little bit but i think it's important to make sure we're clear comparative analysis so they sent everybody hears is a step three concern fifteen we're going to consider this state of texas or sponsor texas because you exceeded to this thing before this record in fact you submitted it to this record and if it wasn't for the district before this record those are the only cases i'm aware there are a couple might search the cases we've discussed in our brief where the state trial court was presented with a comparative analysis therefore that comparative journal theory because this is her husband worked and after all he was involved with various kids who would like was in juvenile juvenile hall that there was no comparative jury analysis there all we have we have the we have the question of whether or not there was a prime a fish a key giving rise to an inference of discrimination with there was and i understand all of that ok now do you think you think this court should be dealing with or the district court should be dealing with any issue with respect to whether or not there was anything wrong with the challenge of virtue jamie when that for all we know the person who was drawn to replace that ger nevers never made a decision in th decision i think we should go down that road and say now not only are we going to litigate what affected the outcome of this case or could have had an impact on the outcome of this case but we're going to litigate in this case with the threat of a new trial on a convicted of murder over such marias because we're not sure that the does that this jury selection or the selection process of an alternate that had nothing to do with the decision making might be wrong do we litigate that and if we do if we litigate that that is one more blow to the whole concept of print pretentious if we keep litigating this with all of the on satisfactory results that we can the quick answer to it is i haven't given any thought but as i mean if i'm standing here the answer the answer i would say that levels no for the very reasons you're saying but more importantly i'm not aware of any authority that's actually held a standard i can't think of any certainly any federal case and no california case is ever held that when an alternate who did not serve was perhaps excused for an improper reason i raise four wheeler for that matter i think i've simply never heard of that right now the only thing i think find wrong this is that the what i'm talking about here during the course of this argument and used of counsel time was never suggested in the district court correct has never been suggested in the briefs correct is just the assumption that we're going to litigate this issue about the selection of this alternate juror who had nothing to do with the decision making in this case and i think we've done it in any event but jury yes we're now dealing with alternate yes there is an objection to virtue yes ok the court was whether there would have been a pl and with what little remains of my time i simply want to be clear about kevin w that there was nothing presented to the trial court other than the fact this particular person was african american i think you need to ask them and is more stringent standard and so i i don't see why you know it should not be as the other side argue