like you well when you have a situation where the prosecution is challenging for example in this case a black doctor while you know allowing unarmed black doctors to sit on a jury and then there are several say it's not conclusive and i don't think miller else has it's conclusive but i think it is a very very strong factor when you get into cases where you've got eighty six percent ninety one percent of black jurors being excused it's a very very strong factor what the trial judge did here which which is to say this is very easy but i'm going to let it go so certainly more than that has to have someone eighty six percent of what is it evidence of an intent to discriminate  yes i mean i think instead shock is that it's not conclusive if that's all we had it would still be pretty strong evidence but but it is a very strong factor and we're not talking like fifty percent to forty percent we're talking eighty six percent that's brought up in my brief so i started with ms asked the postal handler and she was wearing a fur coat even though it was warm outdoors although we could assume it might have been air conditioning here it's actually pretty cold here  wrong about that well actually she stated that she could work out a schedule but it would be a problem for her because she worked graveyard so she might be really sleepy in the court room yeah but that's kind of a normal condition right insofar as the sleepiness goes you know i didn't challenge that but as far as the clothing especially when you compare it with miss al who the judge found that her dress was totally appropriate the prosecutor singled her out because she had  and he considered her pants too tight or something like that and the defense counsel and and the court said that her pants were completely normal and it seemed like when a prosecutor it's a lot of non black juries nothing was ever the prosecution the therapist or liberal and the defense was going to present psychological evidence the jury would consider information learned outside the courtroom the black the pluck doctor was also a licensed marriage and family counselor which would have probably made him a really good year because you know you deal with conflicts and you sort of have to resolve husband and wife conflict is that there's a council of that sort and there was really no reason to strike made no finding the trial court did not make any finding as to the reasons offered to strike him and and that goes against the mclean case and lewis case which is the list specifically states that the court has to make findings the court trial court can say this is iffy but we're going to i'm going to let it go which is what happened here and in addition there's there's a whole exchange between of the prosecutor and the defense counsel where the prosecutor says she's trying to get eight white males on the analysis that was done by the state court there was no analysis of the percentage at all either in the court of appeal or don't raise you know i mean it wasn't it was right it was raised by the defense but not not really analyzed by the court the defense pointed out and in the great thing that you know six out of seven of these black churches where excuse it's not it's not a question of having one jury excused for example in  any cons versus right that was an issue of just having wonder excused but in this case in miller allen you're talking about six out of seven or ten out of eleven jurors and and that really needs to be addressed and that hasn't been addressed by any cour i thinking it would have been because i did read this whole thing and she did a fair number but i'm thinking it would have been about twelve although opposing counsel may correct me if i'm wrong and then to compare this with miller well again noel was a five week five weeks to select the jury so that's that's a lot going on in this case it was one and a half days to select the jury that would get quite some idea of you know the entire pool ok well i think if anything if i put myself in the shoes of that of the trial court that should really have told me that something was going on to see those by black jersey struck before the motion is made of is there and i thank you very after our very thing that the law is very much stronger in supporting the findings of the state court case had findings by our state trial court hearing the wheeler backs in motion we've had findings by our state court of appeal findings by our state supreme court were successfully challenged eighty six percent it may have been there was some uncertainty in the record but that is probably all but one i'll bet one by four john and one was on the panel ruled based on what the trial judge saw in the courtroom based on what the parties argued based upon what the prosecutor said were the reasons and what's another you know it can't happen that that that it just might you know it's by lot and everything and it can just happen that the blacks in this particular jury after two of them the defendant conceded on appeal that their challenges were correct that there was there was a valid reason that would the defense counsel could have done so we can't redo the records the prosecutor is that here to explain the clothing and the trial judge isn't here and the defense counsel if you don't make an objection about issues like that who was not a challenge to and there was this psychologist who had apparently devoted her career to substance abuse and what we had in this case with very bizarre behavior by a defendant that the the facts of the burglary are extremely bizarre and the defendant at the time the police showed up at the residence was actually drinking a beer and and then he proceeded to testify at trial regarding his mental illness drugs that he was receiving so because this psychologist had special knowledge of mental illness and substance abuse there was a chance that some of his personal attitudes or experiences in the field would influence the jury deliberation