procedural default issue with respect to furlough is distinct from the for an omission in reverse order when they're presented in the brief just because i want to spend the greatest amount of time on the third of issue unless the court directs  otherwise so i'll start with that's an issue that the court granted a c away with respect to the record is not as developed as might hope because the case language for many years and so some of the demographic information concerning members of the the near and also even including of the twel member of the panel that ultimately sop is not part of the record however what is clear is that the district attorney exercised to print preach alle against two black panelists and that the jury that sat in judgment of mr rhodes had no black drawers on it what is also clear is that the reasons that the prosecutor all but even if we assume argue endo that it comport comparative analysis is required you still would have to show wouldn't you that the comparative out and house would have yielded something you can't just say well they knew a comparative analysis and it turns out there's no other jersey like this one it's not structural error that requires reversal just because you would agree with that so where in your brief do you make the showing of what you're saying is so obvious that there's all these other jurors it back is that good enough i think that that the record is clear judge haynes in view of what we filed in the court below this court can certainly take cognizance of what's filed in the court below where we point out w comparative questioning would have revealed in this court because the court below did not address the issue that was presented in the a b s application with respect to the disparate questioning we do in fact asked this court simply to take notice of the fact that we argued in the court below that disparate questioning occurred and that in deciding that the prosecutor you support group challenges was race and let me ask you this is there any other juror who lied about their knowing whether what the reason their brother is in prison or of their relatives in prison for another other jurors who had relatives in prison but was there any other juror who lied about knowing the details of their relative in prison i don't that didn't happen is that the prosecutor didn't ask the white jurors that same question so i think that we present at least three different fields where the prosecutors asked questions of these potential b of wars that they either didn't ask two other jurors that is white farmers or they didn't ask but they were not troubled by the answers and those on holiday is there anyone else who was sleeping that was kept on the jury and again judge haynes the question of whether other members who were ultimately seated were had their eyes closed because of course miss holladay says she wasn't sleeping  noirs when they made the batson challenge said that the demeanor of horrors that was identified by the prosecutor is indicating that she was asleep was also true of other of other pamela's the judge said there was just a few and he specifically or she i don't remember what the gender of the judge the trial judge was but the judge specifically found that holiday was sleeping was there anyone else like that that was kept on the jury trial judge did not address whether any of the other members of the jury panel that the defense lawyers said exhibited the same demeanor weren't thought to sleep or w but you know it's your burden here and in the district court and frankly on hay vs in general and you're basically saying the absence of evidence proves my case and that's kind of disturbing and i don't think i'm saying that judge change what i think we're saying is that neither the state and whether that the questions are targeted at rice and different question don't necessarily have anything point in that direction at all it depends on what the questions are right now disagree with the factual inquiry that you're making it get the parts the judge has got to go back and delay is in favor of your client so it benefits your client if we vacate and send it back and then you have some more time going in front of the trial court and so on and so forth because delay delay i mean this this defendant has been and not i'm not blaming you personally obviously you're new to the case and it looks like some courts have been kind of slow here but for quite some time and so your argument seems to be let's further delay it by sending it to the district court and we get a lot of cases where lawyers the district court didn't do something they were supposed to do and we still require that it mattered and if it didn't matter we don't send it back if it matters yeah a lot of times we'll send it back as we should be a quarter reviewing this kind of stuff but not just everything the district court didn't away i'm just saying we have had sufficient delay and if i were you and i was representing your client i too would be seeking more delay because again then he lives and i completely understand that that is a different metric then somebody who's sitting in prison thinking they might get out and you're rushing in trying to get the person out that's a whole different thing and i'm not faulting you for that i'm simply saying we have to have a reason to send something back and unless you have something are you saying that the prosecutor asked more questions of african american zeros and white jurors are you saying that he asked different kinds of questions of african american to ours then he put a white   that's why judge judge haynes in my experience in developing the comparative analysis aspect of determining whether the prosecutor's presumably race neutral explanations  pretextual the prosecutor is a witness in the proceeding and there is a defense lawyer who says to the prosecutor us this juror this question you're saying this is the reason that you got rid of but us this juror who was white the exact same question got the exact same answer why didn't you get rid of him and that did not happen in this case and that's what was supposed to happen under miller ok but if this is a matter of believing someone seeing a vote journey says i don't know why my brother's in prison even i visited him you have a judge there to make credibility finds the judge discounted some other point that they raised i remember what it was it was some other thing about child support the judge just kind of that they didn't discount the thing about the brother who are we going to believe you here in the appeal of a federal pay b s off of a state case or the trial judge making the determination that he agrees because if he thought this guy was being very credible the jerk would have had a different outcome so i mean to me the idea that we would grant havey is because we disagree about whether a juror we never saw was telling the truth about something seems very far removed from my understanding of  let me ask you this i mean i agree with judging about them all three of us have been trial judges i think we all would have let it in under that kind of why not principle that it you know it may be irrelevant but there's no reason to keep something out like that in a death case but that is not a reason for us to grant havey is obvious and so my question is how it how does that fit in the general notion of mitigation being that he had this terrible childhood to show him as this happy child except just to inspire sympathy because any time you see somebody as a child they seem nicer than they might seem now i think that's precisely what the purpose of the photographs pick is that this is the guy is that mitigation or is that just league trophies and sitting there with his friends on the street there was a picture that is painted of him that is different from the picture that the prosecutor was painting of him as just this person who bounces around from one crime to the next he's not feeling the way prosecutors get death and so if it's relevant then the effect of it once it comes in is that may be a matter for some debate whether or not it would have helped or hurt him but to exclude it based on a finding that it's irrelevant if there is  and we don't have to ask the harm question because the exclusion of mitigating evidence should have been admitted as structural error so w there's a case in the fourth circuit called bacon against lead to twenty five third for eighty fourth circuit two thousand case from the eleventh circuit called intone v strickland seven o six  yes but that's only attendances double edged i don't think that the i mean this is double edged if your point is that this this young man had a terrible upbringing and then you show him having a normal child then that is double edge because it looks like oh this kid had all the advantages he got to be in little league he had a good life and then he turned around and became this hardened criminal as opposed to he had a father who beat him in and so on and so forth and some of the things that we you know we hear about and i'm not making light of that on the wider theater i understand what you're saying was made what the state court says is in findings number one twelve than one thirteen one twelve on direct appeal of the applicants conviction the court of appeals held that the applicant's lack of a specific or timely objection waived his appellate complaints concerning the admission of smithy's testimony finding one thirteen the court filings that is the trial court finds that on direct appeal of the applicant's conviction the court of criminal appeals was balanced by the parameters of the appell record which did not include the contents of the unrecorded portion of the bench conference when trial counsel objected to smith's furlough testimony and then in the conclusions of law the state papers court says based on trial all objection to roy's smith's testimony and then goes on to articulate its findings so the last and reasoned state heaviest court opinion with respect to the furlough testimony is that the objection was preserved smithies testimony was dramatically misleading when it was offered and that raises the question under simmons and schaefer that say that when false or misleading aggravating evidence comes in reversal is required and subsequent to trial the testimony became a lot really falls and it's therefore just like johnson against mississippi where there is a salient piece of aggravating evidence that after the jury returns its verdict is revealed to be false and in this case after smithies testimony that testimony was revealed to be false and i just want to reiterate that the context here is that this is a guy who committed murder days after being paroled and the most powerful aggravating evidence that the state could put varying his childhood his time as an adoptive family and a new one how you grew into a vicious criminal the jury also knew that according to the state's prison witness for him that the jury of the season the face of the texas prison system the pictures normal childhood things to humanize him was brought out from at least his adoptive father yes ok now answer the question about i certainly agree that refusing to let a defendant put on a mitigating evidence case in instant tired a would clearly be structural error i don't know that it's as extreme as is mr dow says so tell us your perspective on whether if we were to conclude as judge gray suggested that the trial court troubled upbringing with his birth family his abusive alcoholic father his mother's own criminal trouble but also focused on is adoptive parents efforts to get him help that included psychological treatment through  been putting aside the issue of the lack of authentication as an evidentiary argument you're also making the point that the lack of discussion of these pictures makes their meaning much less clear you just put in a bunch of pictures and have no context and that doesn't help us and no witness was asked would you have any pictures of him with trophies and you're offering this one you know so that in context the judge could rule perhaps differently than when you're just offering a big pile of goo right that's the point about the authentication is to illustrate  that the truck court did not have any real mitigating value to attach to the pictures in assessing whether or not they were relevant it's important to note how they did the the state and made a motion in limine during the state's case and punishment asking the defense proffer  pictures outside the presence of the jury so the prosecutor could see the pictures and they can you objection that she might have so after the testimony of those birthmother defense counsel made up offer and simply handed the ten or eleven pictures to the trial  judge would like to make these pictures as many any evidence to show rose background his upbringing and in the different stages of his life and also to humanize him and to appeal to the jury's sympathy and that's the entirety of the the witness testify about any of the photos are you certain about that that that wasn't the point of the case talking also did indicate he was going to proffer them to the jury through the testimony of donna rhodes the adoptive mother but he did not it would have given some them in contact they watch them put them in contact with them but then he didn't try to i mean after you know we've all been trial judges i have to not over a death penalty case admittedly but a lawyer proffer something  irrelevant and then he tries again when he actually has the witness on the stand i and less a limit he was granted over the judge said you can't ever talk about these pictures again it seems to me that that's you don't stop there you get in with the adoptive mother and you say you know tell me about his fishing and then you say i have a picture in your honor may we approach because i'd like to offer this picture now and now it's in context i guess i'm just having trouble with the concept that just coming up with a bunch of pictures is the same thing as in corporate and into their family which they did and she also testified about how as he became older and older a teenager he began running away from home and became more and course of will and eventually ran away from home for good and the testimony of his father tracked that for the other than these let me ask you what is your best case for the proposition that assuming argue endo that we were to conclude that the that the state trial judge should elect these pictures and what is your best poor circuit case for his proposition that it's a structural error and i'm asking you to cite an opposing case preferably a u s supreme court case or at least a fifth circuit case something binding on it that have that skipper versus south carolina from the supreme court in taken after the abuse he suffered so the probative value of these pictures are really minimal in context when compared to all the evidence that the jury had about roads and for that reason it would be harmless but what if what if because these pictures were when he was adoptive or step brothers and sisters so that the jury did know that he did behave well informed well how many years had transpired between the oldest of the pictures and the date of the trial i mean and youngest to the point where did the most recent picture how you know that he was the oldest and versus the time of trial oldest picture there was a picture of him as an adult or more grown up than a child i guess is to say as apparently as i say apparently this is not the record but it was when he was in longview apparently for the last time before he was incarcerated for burglary of a dairy queen i think it was nine hundred eighty six and he would have been twenty two years old at that point but that was years after the book these pictures most of the pictures are from the age of we worked at ten or eleven and so he was twenty eight when he was tried or twenty seven or so going on twenty ok well we need we need to let you get unless there's other questions about the pictures we need to let you get to the bats what is your answer to the notion that the foul your to do a comparative analysis period means we should send it back to the district court that's not the case because as this court is hill  to holiday and i randomly said there weren't other people like him that had you know said something to that effect is there what way do we put on the fact that at least the prosecutor and the judge seem to find that randall did lie about his brother's reason for knowing his brother's reason for being present i we don't know i mean i don't know mr and i don't want to  about this issue of the sleeping assuming argue ended that we have to credit the state trial judges fining them as holiday was sleeping is there evidence that there was a juror who was also sleeping but was a juror who was also sleeping but was put on the jury no nothing like that there is an indication during the discussion about this all day sleeping that there were other jurors sleeping during the panel for dinner but the prosecutor said that he indicated there's another juror who is apparently story or something much more of obviously than this holiday and that's a reason that would give any prosecutor pause to have a person sit on the jury and only that is the reason this court is found to be sufficiently race neutral and it's a reason the supreme court in davis first as i also indicated is race neutral was there any other juror who gave a similar answer to such a question yes there was james gaffney who served on a prior criminal jury who described the prosecutor's tactics and i cases annoying apparently the prosecutor would not elicit evidence that the defense would he thought the prosecutor was annoying and also charles jury was a not guilty vote on a hung jury on a prior criminal jury and what happened to them they were both struck by the prosecution yes and also we know their race presumably there was a so we know that they're white because the prosecutor said that they were ok another reason the prosecutor gave to strike this holiday was her own work experience with an underprivileged children and her daughter's experience of work experience indicating an initial interest in rehabilitation and the the prosecutor struck three white jurors james gaffney robert jordan and janet butler who either themselves had similar work experience or whose wife had similar work experience so we have seemed to me with randall he was equivocating a lot on his feelings about the death penalty and in my experience again i don't have any experience with trying capital cases as a lawyer or a judge but in my experience with bordi general when you feel like somebody is equivocating with you want them to admit to something that will get them struck for caso you don't have to use a peremptory is that a possible and i'm not saying it applies to randall but is that a possible explanation for why you might question somebody more than someone else if you feel like they're yours tell us about the furlough even assuming argument or that there was some possibility of a furlough for a life sentence to capital defendant there's no showing anybody ever got that furlough and so why put that evidence on it all in and should we even i mean should we allow that to happen because that could make the jury afraid that this guy might be out in the public some day and that might have led them to the was kind of what justice o'connor had alluded to which is just because you're in prison doesn't mean the world to say from you because there are prisoners in prison and they might not and guards and random people that come in for whatever reason and so if he's violent in prison he could hurt people in prison and that seemed to be smith these basic thrust but then as judge taken by them aptly noted it went off on his furlough track and the question is is that hey be to touch on a point that both judge haynes and judge graves were addressing mr clinton's argument we do know the answer in the answer is that at the time of the trial there head never been anybody in rose's position who released on an unaccompanied thurlow we also know based on the affidavits that as judge haynes who's going to correctly were actually a attempted to be admitted during the hearing on the motion for new trial there were documents that established that somebody who had wrote his conviction would not even in the knowledge so there was evidence offered during the hearing on the motion for the trial that suggested that rhodes would not have even been subject to consideration and what we know is that regardless of whether he would have been subject to consideration there was never substantive evidence because it's hearsay so once in the state hey b s but there was also a new trial issue so i'm sorry i got the two switched in my head but nonetheless the point that someone said that they were improper or hearsay was in fact done and wouldn't we i mean we're not going to find as a matter of federal law that this application of state hearsay law was wrong or some of the reason we wouldn't consider that regulations or part of the record in this case in time of the regulations the issue of whether anybody got in here double hearsay and all of that we we wouldn't consider that and we're not asking for this ok moreover the reason that we are certain that we know the answer to the question the judge graves posed is because during status proceedings as i mentioned earlier roe wilson submitted to the court the new regulations that were passed and you're saying they're for that we should treat that retroactively in some way what i'm saying is that in the johnson against mississippi when the court aggravating evidence which is this is a guy who threw him out of prison he's going to kill somebody different from a regulation that changes because otherwise your point would be really let's say he was convicted given the death under a proper statement that under the regulations he could get a furlough divide agreed that was true and then ten years later they said we're not going to do that anymore then whoops now we can go back and undo that death sentence that would seem inconsistent with my understanding anyway of how this works so that would be different from if you're convicted of a predicate often and that was necessary to get you where you are and then that predicate often scopes away because it was an improperly obtained or invalid i think that's just a spirit different thing qualitatively than a the way was the whole piece of the other but i'm not saying in johnson it was a predicate oftens i'm simply saying that the notion of some bodies prior criminal conviction being vacated is a separate kind of thing than a regulation changing which regulations change all the time that applies to a general prison population i think i think those are very different things that's all and i agree and i would say that the question is what is the regulation change in this case whether this is a guy who's convicted of a double murder few days after he was released from prison and the government argued that he would be released from prison and any rational jurors going to say holy smokes this guy killed two people days after being released we really need to make sure that he's not release and since we just learned from this expert that he might be released if we send him to life we've got to execute i want to be sure that it is your client has been sentenced to death if there was anything you didn't get to say because we asked you so many questions that you go ahead and say it because i think it's very  certainly do not mean to imply in terms of talking about the delay that we're in any hurry would take this and decide it carefully and with due consideration absolutely so please if there's something you want to say i just want to say one more thing which is that you  appreciate both lawyers and thank you for being here and this matter is adjourned and we will take it under submission