a fact finding in this case the trial judge said he was counting miserable already as a an african american person for bets and purposes and when the court said i'm not saying i'm right i'm not saying you're wrong that was just the court's way of saying i'm not saying this is a scientific matter i'm just going based on how she looks which is of course how the prosecutor proceeded when he was deciding in this case to keep  the court explained that the law required him to put on the record the jury all of the jurors races as as closely as he could for and events in context and wouldn't require that the judge make a record of his of his just passing thoughts on the subject obviously it would be for the purpose of appellate review and evaluating the propriety of the ruling plus the court so the court said that but then in addition when the issue came up later and defense counsel contested the subject the court emphasized that point that in fact he had ruled that ms flora he was a black person or an african american person for the purposes of th ruling so in this case i think it's clear that your behavior is review for any kind of review what we're dealing with is the numbers or that said that nine black people were considered that's six were struck by the prosecutor one was struck she said i had a record of this is panic and the judge said you know and they had a discussion back and forth defense counsel said i i said that based on her first name sounded hispanic so the judge said listen i'm not saying i'm right and you're wrong it's just that i'm required to put my he didn't use the word finding but he said i'm required to put on the record my take on what what she is so i'm concerned i you know i'm going ba which which was which warrant a difference by this court on by federal court on habeas so therefore the district court was not accepting the fact that they were in fact were was another black person considered and that was a person who the prosecutor allowed to that this was something that could have been so there was no real there was no real opposition on the other side that was rational because all it was set on the defense counsel was saying is that her first name sounded hispanic so that's not much of a basis but ultimately the real answer is even if she were hispanic that doesn't mean she wasn't a black person so really what the judge was saying is i see here is a black person you're saying she suspended but that they're not mutually exclusive so for bats and purposes she can be viewed as an  american person prosecuted him and since the numbers in this case were meeting with the only issue as far as the district court was concerned it takes on a particular significance and that's why i thought it's important for the sport to know you know our position on on how many jews there were but that gets to another the major premise the major conclusion i guess you could say by the district court that was running is was that if the the district court ruled something that you know as as this as the magistrate pointed out i thought very aptly if he were a child if he was a trial judge if someone else were to he he might very well have acquired the prosecutor to give explanations but that's not the standard for heaviest review but but just taking a step backwards if i could just maybe this will point that there isn't fact you know the district court treated it as this was some sort of per se threshold that had been crossed and in the face of those numbers the trial the state trial court had no choice but to do that if the correct you properly and it's just that the law is exactly the contrary because there is no specific numerical threshold beyond which  that every court evaluating abets an application must consider all the circumstances including the numbers so the numbers plus anything else that is is in the case and that of course makes complete sense because the issue in a and situation is what was the motive was there a discriminatory intent behind the exclusions and how can one know such a thing without considering all the circumstances so all the circumstances were  available as opposed to the only by the district court that he was in this case the trial of the defendant the trial conceded that there were no other circumstances supporting an inference of discrimination and in the district court's view because the defendant application was based soley on the numbers the statistical evidence as say therefore that the the trial court had no right to consider anything else and the court on habeas has no right to consider any of the other circumstances which flies in the face of the rules and certainly this court should think that it's appropriate to consider all the  the other the other thing which of course is very important and hippias review is that there are every news of support for the state for determination in this case and those were outlined in gre and very well read in a very well reasoned way by the magistrate and they were essentially dismissed by the district court and i think that this court should certainly focus on those in particular other number of them one is the this the fact that there were two african american people who served on the jury and that that number mirrored the number by the percentage of the representation on the me and has been in agreement all along that there was a mirror of representation that's not coming from us now for the first time that's in i believe it's even in the district court opinion i don't think that that's open to any question the district court minimize the significance of that you know but by saying well it was a compelling circumstance but this record based the answer to that wasn't a could also reflect the sinister motive on the part of the prosecutor to exclude to to my only a certain number of of a minority people of black people on the jury just for the purpose of being able to get away through a batson application but the problem with that is harmless error for betson but rather more of a combination of maybe perhaps more of a presence of counsel right to be present ishai if we're wrong and it would help us if you're honest you know we read that as a statement of that the were correct on the merits we would come back and petition and back to try to perhaps get this court to consider reconsider in light of all the reasons that we put at work but that's not an issue for that there were other avenues of support to just for the state court opinion decision and i think it's important for this court to to consider those because they were  and this is a major one the fact that the finn in a trial conceded that there were no instances and i mentioned this near the context but it's important in terms of in terms of an alternative theory the fact that defense the defendant conceded that there were no circumstances indicating discriminations and this is a record where yes you had numbers and you could look at the numbers but apart from the numbers how do we interpret the numbers which is always the issue in events and situation if there was nothing now the coo or the district court view that what should be a significant point and said it was an unwise concession on defendants point to vent counsel to say that and it doesn't matter because there's enough  i'm here in behalf of brian carmichael your honour's this was a straightforward application of bats and by the district court in batson itself the courts sad that a matter can establish that step the inference of discrimination and then in johnson the court went on to say that that first step inference of discrimination is not meant to be a code if this is not a pattern i'm not sure that anything absent full exclusion we have a challenge rate y e s what would be expected statistically we have an exclusion rate that ranges from seventy represented the community and there was not agreement in fact the defense said as part of multiple  of minorities so that is a factor that certainly should be considered and i think that there's confusion here and had to consider that if it's in the final the final jury circumstances are relevant so one of them is what i just made reference to that had been made reference to previously that the panelists farse minorities so the point being if we exclude even a small number of african american individuals to the way you gather up jury members and net if you're not doing all you need to do that that's one kind of challenge but here we've got no challenge based on that fact and that is a challenge that was not made here so to your question earlier that how do we look at the fact that the ultimate jury was roughly representative of the pin so that's put aside whether the pin out of the out there in the to the next step or the prosecutor had to say why he did what he did but judge phil speculators who may be what you would do in that situation is you would not challenge an african american person to give yourself kind of there's also something that came out just in terms of settled batson law that my apps are brought up that the fact that my client and the excluded individuals not members of the same racial group and that's true it's a factor but it's not  the defendant and people challenge being of the same but i think it's also important to recognize that my adversary has sad that the defense conceded that there's nothing else in the the record is clear that defense counsel did not understate it that under new york law he was required to present anything else and we raise that as ineffective assistance of counsel given the disparity between new york law and federal law and judge villa did not reach that issue because of the balance of decision so that is very much in dispute whether that the court listed out a few ways the step one heard it could be met and specifically listed a pattern of strikes so it's very similar to this court's decision approximately equal but if it's the challenge rate that deviated significantly that the challenge one would expect to challenge rate of about fourteen percent and the chance rate was in fact twenty nine percent it's a more than do discrimination whether an inference of discrimination was established we can look at exclusion rate at the challenge rate the composition of the vineyard and as your honor suggests the all to met the ultimate johnson should not be onerous if we were at step three now keep in mind the remedy that's been ordered here judge phila has given the government the option of a reconstruction here so if this there's a difference here and that remedy goes forward then the prosecution has the opportunity to state its reasons and if it in fact has race neutral reasons we don't know we don't have that record then a broader analysis of whether all of these things together demonstrate that these are actually proxies from discrimination would be appropriate but on this limited question of was an inference of discrimination established  what it's it's been a number of years since my client was convicted he's on he's  that i assume that the government would call its personnel who handled the case and would rely on whatever notes they had to explain why they struck this truck and that defense assuming race neutral reasons could be established and there are numerous things in the record defense counsel did not understand that he did them for step one of their nuclear six and the record that he could present that would support the defense understood the defense believed that discrimination was at play here too that's not in the record there's actually quite a lot there's no on the record i mean that's the problem when that's a gets cut off w right that the violation of which harms the defendant is from c church that is the criminal justice system and it's we want these cases to move forward so if you can meet the not oner to step one and we want to hear from the other side and that's all that would happen here is we would hear from the other side and then it would ultimately be our burden to establish that if these things were proxy for discrimination whether we could meet that burden i don't know we don't have that record but i would like to address the question from as well article i this is a factual issue that the judge than i'm quoting here from the record appendix page three twenty four a not saying you were right and i am wrong or the opposite and that's not a factual finding then he at three twenty five i'm not saying you're wrong then three twenty eight of the appendage as if he's talking about the numerical showing he says if that's the basis of the challenge i noted whether in your mind it's the five my calculation other way take your number take my number either way it's not enough because my understanding of new york law to which them found is that the presumption is that a numerical showing is insufficient absent other facts for circumstances now van that is the rule that was applied in this case and that it is an unreasonable application of paths and johnson so just to supplement on the fact finding issues i think it's important on pages three twenty three b and c of the word dear i'm sorry i don't have the appendix page but a three twenty three b and c is where the court explains on another discussion that look when i said that number i mean that number we wanted to be counted as and that confirms that that that is a finding believe that for two year as i just want to address a couple things if i could the reconstruction hearing the only reason for a reconstruction hearing in this case is if the hippies were properly granted and that would be a statement that in this case the judge just the state or judge even under havey as review was obligated to make a facial finding there's no basis for that and that's why there's no reason to have a reconstruction hearing but the issue of reconstruction here would be what were if you move on to step two and require the prosecutor to give reasons i would just say i'm not saying we couldn't meet our burden we would certainly our intention would be to meet our burden if we had to and hopefully we wouldn't have to you know be in that situation but i do think it's relevant to save it at this point when you have nine years when you try to do a reconstruction here in nine years later there are certain difficulties the trials are just no longer sitting i don't know he may be in good health and you know somewhere else and could be brought back but i don't know  and i and i'm not saying as i said i'm not saying we couldn't meet a burden through notes or something else but it's complicated because one has to persuade a fact finder of and the intent of a person who's who is absent  situation where the cases reversed you know for failure to move to step two but you know it's nine years later i don't think that's very common i think it could be a product also of me of the differentials than history because in order to to for the for a hideous court to to end and a prime aphasia i feel you'd make a prime fish case there aren't you can see your honour's there are that many cases because there is no is again there is no per se rule there is no you know number beyond which you know the bill goes off and you you have to make a provision you have to move on to step two i in response to i could believe it was judged to be asked question about what else is there in the record what can you point to other than other than the statistical evidence and the answer is nothing zero you have a concession by the senate that there wasn't any but that was not you don't have  i personally don't i do i have every reason to think that there are notes and i haven't seen them by but but you know iran's notes are not always complete and notes are not always enough to you know make a showing so i just think that it's not a you know it's not something that the discord should think oh there's no problem we'll just we'll just be a you know a you know kind of the standard thing you go through with it and there's no issue but i also think there's principle there's a legal principle involved in it and i think in this case this court can look at it look at the record and look at the analysis used by the district court and see that number one there's all there is only the statistical evidence is not one  that they claimed that to the defense lawyer was incompetent for not bringing that to the attention of the trial court that was it was that they had friends in law enforcement the so called law enforcement so cool that they had friends who had law enforcement connections and so therefore according to defendant these were people who would be presumed to be favorable to the prosecution and therefore if not for their race there could be no other reason to exclude them but the but this is the answer to that and nat is that when you look at these jurors at least only for them can we identify exactly who they were because there was a problem with the void ear and how it was reported but is the for these for law enforcement there that that definition is a very broad one and two of them had at least two of them i think you have connections to the correctional officers now correctional officers from from a state prosecutor's point of view i'm not a federal but certainly from a state of high level n y p d relatives is if there's a distance we had in our case here these were low level police officers in my p d who testified and that sometimes can make a difference and what happened here as a way to know that is that the prosecutor excluded a similarly situated white juror who also had connections to and she her nephew was an n y p d captain  it must have been a racially motivated challenge because these were people who we would expect to be the prosecutor would expect to be pro prosecution jurors so but for their race it would be no reason to exclude them so my sustain and explain that that the decision was a proper one and state who it then that matters for heaviest review with the deferential review so if the district court points to something as being something that indicates there was a problem an indication of discrimination i felt that it would be of interest to your honor to hear that there was another way of looking at it that it wasn't something that indicated discrimination plus i also want point out that there's actually affirmative indication that there was not discrimination because as to one of the jurors one of the non black jurors who was it's i guess to support that idea that