turns on a misstatement by the prosecutor in summation regarding the burden of proof and in this case there was no absolutely no consideration by the publication the last recent decision of the state court about strength of the evidence in this case to measure the prejudicial effect or better argument why would that be necessary it would start with with what happened and what happened here was that mr binder during closing argument so she is the one who chose to characterize the eighty percent figures over correct why is that really not cases out there to suggest that one hundred percent certainty is required for that matter the no cases that i know of that say eighty percent is not enough is enough or is not enough idea i think the whom introduction frankly speaking for myself alone of percentages to discuss reasonable doubt is very has has not only dubious value probably no value i assume we could agreed just the two of us agree that the suggestion that eighty percent is enough for reasonable doubt is a legal issue being introduced here and that i it's hard to imagine that in in of itself that that the judge's instructions not something that the jury you know wanted which i can tell as we noted not brief the jury i don't think would have known that what the trial but isn't that doesn't that show that the victim has been credible because earlier in time he makes a stronger than if you want both counsel in their arguments legally incorrect because the question was not whether eighty percent or ninety five percent is enough for reasonable doubt eighty percent endurance ninety five percent with a figures being placed upon the certainty of the witness himself which is a factual matter problem here isn't it is my head and i honestly would have said more than just four out of five would have said well this woman said this and that would mean that she could be more favorable to the government the not so nice think in a sense it did that it didn't just look at what the state of the record at that time it considered as it was a title to everything in jury selection i mean if the prosecutor had needed an outright blatant racist statement even things summation i think that would be a language that i read this entire party or transcript and there are a lot of things that struck me from that reading both the sloppiness and both of counsel to the sloppiness of the state trial judge at the initial challenge of the four out of five when the prosecutor should have been put to her proof as to why she had taken those strikes that wasn't done at all  i certainly didn't what then constantly loud and clear to me anyway is it you hate it for tat between these two counsel first there was the batson challenge by the defense counsel and then there was oblique angry that's in challenge made for the down the line by the prosecutor that's correct and if the defense attorney was engaging in reverse discrimination that's outrageous but it listened to this and i can see why a prosecutor would strike this person so the numbers alone just aren't going to do it here now had these people been you know wonderful as apple pie for the for the so inadequately handled at the start both by the trial court and by the prosecutor brought and how do you submit we ought to be looking at the should be we be looking into this is 's say we determine there was a crime facie case then the next step is to get to step two why isn't it enough so slim as it is why isn't enough for the prosecutor to say well you judgment that's correct but once you require the prosecutor provide reasons then the defense attorney can rep at what's going on with people who haven't been excluded or people have been left on the jury and says one of the problems with firing the gun so early in the numbers alone the fact that there were four out of five is does not raise an inference of discrimination how do we say as a matter of law that that's not permissible quite well i don't need to do it again but the prosecutor was required to say something she could not believe that eighty percent identification is not enough she could just leave it hanging out there for the jury to consider she had to give a response she gave a fair and measured point simply was under state law at the time she she had no more if she'd used up our country challenges right she could no longer exercise every country challenges and she was concerned that the defense attorney was used in her higher the first four out of five of twelve strikes doesn't see lot and to the extent all right so is that your city isn't that your strongest argument or isn't it least the argument you moving the step to the exact words of the prosecutor were it's clear from the answers that the jurors gave that are african american that i have excluded form the basis of my decision and not because they are simply african american out judge me key in the reasons why those jurors were struck are fairly obvious and should be fairly obvious to this court and you can look at that record and make that determination so i don't if we do get there and back to judge w defendant would have to persuade the judge on the basis of the facts some of which are impossible for the country to know with certainty that the challenge was more likely than not the product across or discrimination in other words you can't hamstring the defense attorney by would be relevant in the factual pattern where you wait and make your bets and challenge later not one by one not so early in the game you make it later and you say oh no i see there's you know there are six blacks on