afternoon good afternoon you please the court my name is dennis burke and i and tom uren style representing the tailor and if i could have  five minutes for rebuttal very well today i'm going to be addressing both there are well technically three but two very important issues which are the bri the issues raised in the brief the bass and the kentucky now this was a trial that began before while the bats and case was on appeal before the u s supreme court and the decision actually came down i believe two days after  this case but that's what the lawyers and it would have been in any event because it was well before that the appeal came down and  the remaining four to remove white jurors and after he did that the defense counsel jack did that the prosecutor had used fifty percent of his strikes to remove sixty six seven percent of the black jersey and indeed he had that is of course sixty six dollars or seven percent but in addition to that he removed only twelve point five percent of the  white jurors that were qualified to sit on victor taylor's trial on appeal the kentucky supreme court ruled that it was not enough said it wasn't enough to just simply object to the race of the jurors that were struck and that he he was also required to present any other evidence in available evidence in support of an inference of discrimination now as an initial matter the supreme court in batson held that it is enough to make an argument based on the pattern of strikes of the particular veneer which is what was done in this case what do you mean by pattern well in this case they argued that four of six black jurors were removed that and therefore said just the sheer number right and explain that it was sixty six seven percent of the black jurors were removed which is similar to what happened in baton itself what does the language that that says that the court must consider other relevant factors what does that mean does that detract from your position that it is enough to simply show the number and percentage no i mean i point that out to court there are there are several other factors that or circumstances that support a finding of prime aphasia discrimination based on race but i pointed out in my assume would be the absolutely in comprehensible statement of the prosecutor that no one reading that could ever figure out what he actually said but casting that aside that one of the questions that i have had about this case and you know i don't maybe it's in here someplace and i've just missed it is it a fact that the prosecutor's chart which showed the reasons was part of the record in the state courts yes your honor it was it was made part of the record on i believe april st which was before the strikes were actually made but he presented it as to show that he had used it to make sure the there was a cross section of the community on the jury and so that was made part of the record chart also indicate the race it did your honor so yes every single one of the jurors it includes  either white or black and it's significant not only because that is well you know mr taylor asserts that on its face presented i'm sorry that the  but i suppose he was following was the kentucky prosecutor's manual book a cocky prosecutor's handbook which actually instructed that the prosecutors to remove minority jury pool members if you have a minority defendant who's being tried who are no no jurors the juror of a racial or national backgrounds some will or to that of the defen yeah i mean what he's doing is following the manual and any other reason he says no there is no other rational reason i'm excluding them because of his right like i mean that's obvious to me and is less obvious to me because i thought it meant i don't have to have some other reason stated well i think the fact that he said i have no other rational reason and in the context of the conversation they've been talking about striking the jurors based on on race the i mean the defense had objected to striking a black person there was some discussion about how many had been struck cetera and then he said i have no other rational reason so in the context of talking about race and then saying he didn't have any other rational reason as long as he didn't strike all meaning all black churches for me said it was some california case i mean i don't know what what that's about but i mean this is back in eighty six right was there a california case goals that if you had struck all the the members of your race from the jury except one it was fine as it was out that it seems like a rule that while the california case is actually pretty much a precursor to bats and as far as it laid out you know the steps to be taken that were you know very similar to what bats and decided but i think they're relying on that there were there was a circumstance where there was found it wasn't discrimination because the had not all the black jurors were removed and so here there was one african american that stayed on the jury right there was one african american remain on the jury but i do think given the given the evidence that the including doing that in order to get around a rule that didn't allow them to raise the bass and claim a nd time but nothing less decided the claim and still found the number i'm still trying to figure out where it's in the record you said a decided and there was no mention of that either in the state court opinion ok i already did a briefing but maybe it was not challenged it certainly was not challenged believe judge griffin was was asking about and that is in the record all of the well it's in the it's in both records but it's at seventy three dollars deaths two in the in the federal district court record now and that is what they relied on just that single chart where they listed the what they considered to be the topics last the education and profession or jobs so less than high school high school college and the right right and that's the only thing that they that the commonwealth relied upon and they didn't even do that in the strikes so that was in prior child strikes politically it's really difficult i'm sure to have me on the phone so it's so we have to take turns but the  sorry i thought there was one other thing i wanted to say that come back to you i'm sorry ok thank you historic this case arises from jefferson county kentucky yes prosecutor's office there significant are there are there differences in this case with betson or is it on all fours that it's on all fours of bats and in fact other than the fact that in bats and they removed all of the of the black is there there was a there was no africa there was not a single african right right but it is and that's why also i mean when we were looking at an inference of discrimination based on race that's one of the things that factors that need to be considered is that  were were both out of jefferson county kentucky the very same commonwealth attorney's office that in the same practices and the same i mean this is two years later that's rason hasn't been decided they assume what they were doing before was five fact they were defending the supreme court right so they had no reason they had no reason to know that what they were doing was wrong either i guess because well challenge on the table and left one black curator on the preamble correct well actually that would have left two black jurors on the on the panel and then  african american jurors on and then the defense struck one and so that really that's why there was one remaining i realize that but he didn't have another challenge but he did not yes get their last black you're right that is that is correct that is correct so even if we don't even if you even if it's the no other rational reason for the strike is not considered a race positive explanation for the for removing the jurors it still goes to it's still an inference that race that the commonwealth struck based on rights because what are the other are there are the you said there were other relevant circumstances to be considered  i asked the question about what did the bats in court mean by that yes so what were the other o's other relevant circumstances are the fact that bats and griffith were both decided in the very same commonwealth occurred in the same common attorney's office that the commonwealth struck sixty six point six percent percent of the black jurors that the commonwealth used to chart it in which they acknowledged they used to strike the jurors and which they listed that race of the jurors every single either black or white and what's also important about that is that that is that they this is not a circumstance where they were just using it as a descriptor like say to remember what the jurors looked like somebody with a beard and glasses or what have you this was the only physical characteristic on that chart was the race of those jurors are it and then if if the kentucky prosecutors handbook is in evidence and i guess maybe there's dispute that's other evidence yet is it because it actually tells them to do it yes all of this if you have a minority defendant you should exclude minority members from the jury yet it's right in here and so if we need other evidence which i don't think we do by the way i think jury solely on evidence concerning the prosecution's exercise of propre challenges at the defendant's trial i mean they're saying so but if i could ask a question about shirt isn't that discrimination inflict this selection of the jury solely on evidence concerning the prosecutor's exercise of current three challenges and i think evidence concerning at least arguably goes beyond the mere fact of the strikes except when we look at bats and what happened in boston the only a job but then my next question is before you get to that but i mean hold that thought  think because the going through the next thing they say is to establish such a case the defendant st must show that he's a member of a cognizable racial group no issue there at all here and that the prosecutor has exercise your no question but nobody's arguing about that finally the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude and that's where my concern is any other relevant circumstances clearly that goes beyond the mere fact of the strikes except again remember the language where the court said that it's a six black jurors that were remaining sixty six point six percent percent that's the pattern of strikes that their interest of the prosecution have in the trial they were eight used half of them used fifty percent to exclude the african americans correct and they only made up well you really need some other evidence here it's excluding one member maybe it's not enough to establish a premise facia case but here when you exclude four of them and use half your challenges on those that arise to a reasonable in talk down for that's what they're practicing going to run this thing the race of the jurors and then saying i have no other rational reason as long as i don't strike all we know i think if you put all that together it's far more than an inference that i mean that's all that's required to  star what do you think of their argument that ok even if you get past the prime official level that step two they could have raised so nondiscriminatory reasons to justify the challengers what do you think of that argument well i think it's nonsense for a couple of reasons one and perhaps most importantly that the chart itself that the commonwealth relied upon was not race neutral it had the race of the charts it's impossible to say oh they were ra neutral reasons when the actual race of the of the jurors is on the chart and it's important to note also that that was not somehow that didn't make it into the commonest argument there talked about education and profession but there's nothing about race even though plain as talk about reasons they didn't talk about race say that again so in the in the hay vs process they were talking about you know these are the reasons why in fact the judge said  in the district court judge said well even if i presume there are raised you know there's a provocation case now i'm going to look to it to step two and relied on the chart as does the commonwealth to say look these are race neutral reasons that they could have raised but didn't but didn't to the nd step and then it went it got remanded back for a hearing you know that may be another you know another circumstance but couldn't do that now well it would be extremely difficult to do that now for a couple reasons one again they didn't offer a race new neutral reason their person they're putting forth a race to the reason they say there was actually if anything race positive because it included the race of the jurors secondly this is now  thirty three years later after after after the trial and the trial prosecutors no longer live look so long to get this to the  five right that one that's why it lasted so long but but i mean and i think the reason for that though is because i mean the cutting comic book sees me kentucky supreme court had an opportunity to opportunities to make the right decision and it so that is i mean if we're talking matter of course the commonwealth could have conceded the obvious that it was in fact based on you know it impermissible violation of equal protection and didn't and so that is why and so here we are thirty three years later in snyder the  supreme court declined to refer to us in back for a hearing after only ten years or so and as far as i know in and snyder the prosecutor had died so i think the obvious remedy here is to vacate the prosecutor is no longer alive and given the fact that that what they relied on actually is not reasonable in includes race but i think you probably could send it back  think i think your other claim might be a little weaker because i think we're we are subject to harm us there are there yes my understanding batson is a structural error it is no it's not subject to harm if there are reams of never actually labeled it a structural error is the case or overwhelming evidence that is not the case in reality is and they get i don't know if you have the chart but they refer to a chart which is on document twelve the federal court record of all of the evidence that george wa presented who is of course on cross examine and then the evidence of the other the other witnesses now what the kamel didn't say is how significant george wade's testimony was to supporting those other witnesses all of whom had credibility issues we had not one but two jailhouse snitches both of who received benefits for their testimony one of whom actually recanted his testimony until the camos came through that with his deal or his statement recanted his statement when they came through with his with a deal which is a good which was concurrent time with his other time facing twenty years to life then he flipped and again claimed that the statement was true with their witnesses that saw probation and the detective from the prosecutor's office on the investigation for after taylor's case went down to court to make it on his behalf so he wasn't violent but beyond that at the at the time of the crime occurred two days after the crime though both of those witnesses were at the police station neither one of them was able to identify victor taylor from the photo lineup or photo array the very st time either one of those people identified victor taylor was at trial and not coincidentally aside from the prosecutor and the judge the only african american male in that courtroom was victor taylor so their credibility was suspect and certainly what they were able to provide to the court was to the jury was suspect but not only that if you look at the closing argument that the that the prosecutor made he every single every single witness of the pepper r testimony in fact that's the whole the entire theme of his closing argument is the cut the defense has attacked this these witnesses well let's go through and let's look and george wade says that the supports that in fact i went back twenty two times in that closing argument the commonwealth the prosecutor relied upon the george weight statement to corroborate the other testimony and use words like verified compared to listen to george w has beverly shackleford she told she testified that she had actually been three times that victor taylor who is not friends with her that he had walked by her and she heard him bragging about it and yet just two days after  s supposedly happened she was interviewed by the police and didn't mention it at all and then she claimed that she had heard two more times after she spoke to the police which is on suppose i'm sorry october rd and taylor was taken into custody at four am on october th so the likelihood of her testimony being true in the jury again was was cognizant of all of that because the defense did a very nice job of bringing all this these problems with the calmness case to light and that is why the commonwealth relied on george wade when you talk about substantial injurious to the verdict i mean there is or is influential to that to the verdict one of the things to remember is that the that the jury actually requested to listen to victor i mean i'm sorry to george wade statement for a nd time while they're in their deliberations and then when you look at the what the com will did in fact for the for the murder itself all of that virtually all of that evidence came from george wade the actual eyewitness account he was the only witness that was able to say that he was there at the time that he knows it was victor taylor because he saw him and then to say well i even tried to talk him out of it and i  just gone around the corner and i saw two shots and then he told me why he did it which was because he didn't want the witnesses to talk so and and by the way the commonwealth they pointed to that when they talked about the jury instructions they said here's why you should find him but they said let's look at the facts and what was the facts george wade statement which they then read a guy a very a saint but pretty detailed statement or a summary of what george wade said and that's just for the for the murder they also did it there are six witnesses that the most relies on from iraq every single one of those witnesses without exception the the prosecutor looked into corroborated that with george wade statement every single one of them the same with the with the kidnapping in fact in the kidnapping he talks about that they were they were tied up they were bound and gagged and then says and look what george weighed says about that to corroborate these other witnesses the cop the defense says don't believe these witnesses well look what george wade said and those are of course were on cross exam was an on cross exam state and so the fact that it was the idea that it was not harmful or not influential to the to the jury is simply wrong or mr burke you've got i want to start with the prosecutor's handbook the prosecutor's handbook was made part of the record when the one thousand one hundred and forty two hearing occurred post conviction there was attorney at the time of the hearing but was an assistant come with attorney prior to that testified that he had seen that hand book in a while no one was using it they had no policy written or unwritten to strike african american jurors if they have an african african american defendant there was absolutely no proof that anyone was using that handbook and just to give an example that ha has it's very outdated it talks about not putting women with hats on the jury it talks about not having or trying to get a jewish sounding name sure if you have a german sounding defendant it's it's just it's very outdated and no one was using it at that time ok and there was never any test that no one in jefferson county kentucky and the other thing about jefferson county is there they get a really bad rap in this case because the bats in case well yes joe got in the prosecutor that case struck for african americans with six trikes but the objection by the defense attorney was that it was an affair cross section that's all he said no other evidence no you get the the sense when you read bateson that they're they're abandoning swayne because the burden so crippling that no one can meet it and that's not at all what happened here no there was no swaying evidence there was no you know attempt to get to that point and then to not get there and then all of a sudden we need a new remedy and the interesting part and this ties into what mr jasmine said the prosecutor with regard to the california cases when batson went to the u s supreme court because i want you to adopt people versus wheeler which is a california case that is a th amendment case that says the impartial jury fair cross section portion of the constitution is where we want you to adopt this rule that comes from the people versus we are the entire time he's arguing justice o'connor the entire is like why we don't understand why you're not taking swain head on here why aren't you claiming equal protection why aren't you claiming equal protection while they followed the blueprint in wheeler and wheeler didn't deal with equal protection so when the fair pro action argument comes up at the trial and mr jasmine references the no rational reason and the california case he simply telling the court that he knows what the holding of that cases because that case dealt with the situation where you have what they refer to as group bias where you are striking jurors based on the assumption that they are going to be sympathetic to the defendant if they are the same race i mean that's interesting you know those change the law and it's right it's retroactive which right i see is the problem for for years well it creates it creates an awkward position because you're analyzing a trial where there was no real that's in hearing because that it problem is with retroactivity i mean how can you how can you force a new rule on something that's already happened and the only i mean the only way to cure the to have them anticipated ahead of not and you kind of stuck with it while you're stuck right and they did because it is retroactive they analyzed it and the kentucky supreme court found that no problem if they should case was shown all the interviews where the bear numbers these other relevant circumstances that we're talking about the handbook and all of the fact that it's from jefferson county those are all slain type relevant circumstances but they're not batson relevant circumstances batson want you to look at that particular trial you look at the pattern of the strikes you look at any statements by the prosecutor that would show bias you look at the way he questions about the state but that there is no other rational for me to exclude him and again i think if you do i feel i don't read it to where he is saying that that is what he did i read that as if he is telling the court  he actually asked him there's an objection for excluding the african americans from the jury pool and in response to the objection the judge's ok what would what else is going on here and here is a response was there is no other rational rational reason there is no rational in other regions and the way i read that i'm accused of excluding the african americans because i've got an african american defendant and he says yeah that's the rational reason and that's a lot and before batson it actually was unless there was a was there was a swain violation correct i guess we just have a difference of opinion on what it what it what it wanted to mean what do you what do you think he by i think he's referring he's trying to foreclose the argument that they're making under the fair cross section issue and by quoting or letting the court know i know what the holding is here the most recent one from california talks about you know no rational reason with respect to group bias and here you've got it the way bats and talk about group bias i have no other that's what that's what people versus wheeler is all about is group  bias and the batson attorneys specifically wanted i mean they their brief is we want wheeler we want you to adopt a wheel and that's what they argued and so when when you look at equal protection under batson there are two situations you are or you are protected if you are using peremptory challenges or you're not protected if you're using preach on this solely on the basis of race or under that assumption for group bias there's no evidence that ernest jasmine was actually using his strikes for solely for the purpose of or solely based on race there is the the evidence that they're saying that i've used to support these race neutral reasons that's not why oxide of that evidence that the district court did but i didn't cite it for that i cited it to show that he was not using his strikes solely on the basis of race there but he say that though he didn't say that but his chart reveals it at every juror that he he struck was either defense council they're saying the clause race is identified that makes this not race neutral and you're saying these are all race neutral neutral reasons but we have also identified the race of the jurors we don't actually know which one he picked right sort of picked a nondiscriminatory reason or it could affect the right reasons and because there's no testimony there's no nd step no i think you know that's one of the problems as we're we're trying to step back into time for thirty three years ago and things were different though like there was no internet and there was writing it does require a bit of time travel that makes it very awkward question that no promise facia case was shown the kentucky supreme court found that that was an unreasonable interpretation of bats and based on all of the circumstances that are here and not taking into account swain type evidence deference that the decision of the kentucky supreme court in tailor one was sound with respect to the roberts and its progeny you've got  a group of cases that all seem to point towards making the statements against penal interest which in this case george waite statement were clearly against his penal interests he he admits that he was there when the boys were kidnapped he's the one that tied up their hands it went after they drove around with the boys tied up he's the one that tied up their legs he's the one that gag their mouth he's the one that looks through their pockets he's the one that took off their pants he's the one that ransacked the car pardon me so how do we know all that without his statement what i'm just saying with respect to his statement it's against his penal interest right but no with it it's unfortunate that there are some of the some of the witnesses do have credibility issues just like george wade has credibility issues but you know there were a group of boy scouts camping in the projects that night that could come in and testify as to all this that's happened but what we do have we have victor taylor being seen with a gun taking these boys into a car we have him going to the home of his mother and telling his sister that he needs to get rid of this gun because he's just killed two white boys we have his confession to three different people saying that he was the person that pulled the trigger so whil george waits confession is helpful because it it's it's one continuous story if it compartmentalizes into a nice little piece it's not a very  revealing articulate confession there's not a lot of detail in there it's very bland it doesn't give a lot of detail it spends most of its time just kind of walking through what they did and to the extent that it does implicate victor taylor as the trigger man again all the other evidence including the bullets of forever the bullets but there were bullets that matched the gun the type of gun he had that were in his possession so the the confessions interlock enough that i think you get to win idaho versus right you get to that situation where you look at those circumstances and you see that he's had he was mirandized three times he was given no he wasn't given any sort of deal he didn't ask for anything he didn't ask to curry favor he didn't take a so he he and when they when they were interviewing him they went over the miranda warning they talked about coercion and this is what it means you understand that right you're doing that if your own free will all of those circumstances add up to make the statement have a particular as guarantee of trustworthiness that would make the decision in tailor on legally  sound and i'd disagree with my opponent to the extent that they say crawford b washington applies because they discussed it in taylor three again that was conditioned on whether crawford was retroactive it ended up not being retroactive and interestingly it would as we swing into harmless fair justice cooper and i think it's keller but there are two justices that in taylor three that say we don't need to talk about crawford ohio the roberts we were good with that we don't need to be talking about property washington but we also disagree that there is harmless error here because without the statement of george wade there's no evidence of sodomy there's no evidence that that victor taylor was the man who pulled the trigger but that's clearly clearly inaccurate it was in opinion that was cited erd decided before i got it on the case we're not sure if there was any attempt to modify that opinion but the sodomy evidence comes completely from jeffrey archer brown after victor taylor confessed to him as well as the physical evidence there's no mention in george waged statement about sodomy similarly with regard to the who pulled the trigger again you've got all the evidence every all the gun evidence points to victor as well as his own statements where he's running around telling everybody that he's done it and then he's got his whole families where in the boys clothes and you know all these other things that you know they're all but advertising that they've done this offense in this case there is evidence other then george weighed statement that can support those convictions i began after i feel like the statement of george weight has been bolstered to be something much greater than it actually was and you know you could fault the prosecutor or they're following the prosecutor for citing to it again it was ruled admissible so why wouldn't he be citing to it when he's making his argument at the end of the case that it would make no sense not to argue it and as a side note it the fact that george wait didn't testify at a loud eugene taylor to be unable to because of hearsay objections he was unable to testify that george wade told him about the sodomy the night of the murders he told you gene taylor about the sodomy and he also told him that he begged victor taylor not to do it which is probably one of the only things when you read that statement that you kind of want to roll your eyes and think ok sure that seems a little self serving but there was evidence that would have corroborated that so it's i guess it is in the end i think there's clearly enough evidence  that the statement that it would have been harmless error to introduce the statement but again i would assert that the how the roberts and and the progeny there was using a t p deference to that that's not an unreasonable application  illinois talks about all of the things that the comma relies upon that makes that statement reliable is that in fact makes it unreliable for example the fact that he was in custody the fact that he had been mirandized the fact that he had that identified in a lineup the fact that he in fact it was not a statement against interest because he said i didn't i didn't commit the murder so it was not a it was not in fact a statement against interest are all of those reasons they are taking some responsibility but then passing off blame on others that that mean that it is unreliable that st of all they are they are presumed to be on or are unreliable to begin with but if you're determining whether or not they are reliable  for as to get past that presumption then you look at the circumstances that the state the statement was given so that statement all those things that i just talked about are indications that it's not reliable that it was given to the police while he was in custody after they confronted him and said you've been you've been identified in a lineup on top of which he denied that he committed the murder and pointed it put it pointed to victor taylor all of those things straight up in within the trial also strictly forbidden in idaho over your right with a comma where they could u s supreme court reverse or that every single one of the reasons provided by in endorsed by the commonwealth is actually the opposite of what it says that it was an reliable and it was not admissible secondly as far as the fact that it was that i didn't like the chart that the commonwealth pointed to the opposite i love the chart and here's why because if you compare that chart to the closing argument that explains why george wade statement was so harmful to victor taylor because the comma used george wade statement to bolster all of those witnesses that were otherwise very questionable and to corroborate their testimony i ask you to just go back and look like i said twenty two times he pointed to that statement of george weighed to say that it was not that to corroborate the testimony of those witnesses that is not a cumulative of what they were claiming that is actually substantial and injurious to the hurt and influence influential upon the jury that is that is harmed that is harmful not harmless i want to turn a little bit also to the the groups came from the same comments during the the jerk chart that list of the race the fact his comments itself no other rational reason all of those are not had don't have anything to do with systemic discrimination regardless that arguing is also raised in swain also applies to a batson violation so the idea that all of the swain evident the so called swing of this doesn't apply to batson is simply wrong the fact of the matter is equal protection clause and bats and the whole point of it is to stop discrimination based on race against minority at that time minority jurors that's the entire point of the equal protection claim of the of the bason opinion so the idea that somehow this systemic discrimination based on race doesn't apply to victor taylor's case is simply not true it's contrary to u s supreme court press and in fact it supports even more so this argument or the not an argument the reality that victor taylor was discriminate th