because he did not want any allegiance to one party over the other based upon racial identification our main claim is that of bats and vs kentucky prevents parties from striking prospective jurors on the assumption that they will favor members of their own race it also prevents judges from removing seated jurors based on the same assumption the magistrate judge district court and the state and its brief in opposition to ation all agreed with this principle i would like sumption part that's the problem here because here the the let's start with a hypothetical if the this person had come to the sure jury to the judge and said you know that the  correct that's not what this juror said he said he resembles my uncle and then after nine questions by the judge he says i know that i'm filipino he's filipino it has nothing to do with that i think the i read the transcript as the jew the jerk volunteering for really no good reason the jury had already been picked the case was about to start raising with the judge some concerns that raise this concern it's of concern to me because you're suggesting that based on your racial i don't vacation with the defendant you can't be impartial that as you've just conceded that would ok that would be a valid grounds for dismissing a juror so the judge goes through the and i read the judge is just at the end of the day not being convinced by the jurors ultimate statement that no no i can put it all aside and so i guess it seems to me you're just asking us to determine that the trial judge clearly erred i guess in making a credibility terminations as to whether this juror was sincere in saying ultimately at the end no no i can put all that aside and be fair you know i think the judge here misrepresented what the jurors said and made a leap to there being a problem with this shared racial identification because the juror says it has nothing to do with your taking that out of context though the full context of the juror statement the whole reason the juror came forward to talk to the judge out of the blue unprompted unsolicited was to raise concerns with his own ability to be fair and impartial that's again you can i guess dispute that that's the right reading of the record but i understand why the judge then felt compelled to sort of inquire ok sir you've raised this i'm not sure why we're hearing about this now for the st time after jury selection is over but the judge then engaged in a colloquy and ultimately came away not convinced that this  fact could put aside his racial identification with the juror and it just seems to me your whole i don't disagree in any way with the legal premise that you want us to accept but just as a factual matter seems to me what happened here is totally different from the characterization try to offer you know but the doesn't matter that the church says it doesn't have nothing to do with that when he says i'm filipino he's filipino and has nothing to do with that it just reflects me that he looks like my uncle and the judge leaps on that and makes a run to the assumption that there's going to be a problem based on this shared racial identity why was that you're coming forward to begin well in your view and my view i think i would agree that this is a juror who earlier had said there was he had some caretaker duties and maybe  he thought maybe that was a way to get out of the case i think the defense lawyer said that that that's not this isn't really what he's getting at here isn't the real the real issue and i think it could be that that you know we look at this is and i'm saying just let me jump in i'm saying why in your view other than expressing concerns about his ability to be fair impartial why did the juror approach the judge and say judge i need to speak to you about something what's the motivation other than i think i might have an issue and here it is and then the judge started exploring you're saying well you know that's not what was going on what do you mean if he says the issue when he st talks to the judge is know that there can be a racial component right with that he looks like my uncle in part because we're on the on the same race i think that would be if if a judge concluded that yeah he looks like that you're saying it looks like my uncle that's why i can't be fair but the judge here expressly disavows that he says i am dismissing him regardless of whether he looks like his uncle my concern is this shared racial identity i'm somewhat sympathetic with your effort to focus the trial judge on one reason but if we look back to the last reasoned decision by the california courts which we were required to do he got a court of appeals opinion that has all sorts of reasons that a trial judge might exclude someone in the same record and how do you get around that well because the judge here made it very clear he was striking the chair for one reason and one reason only and that is it is so we would then they ignore the other reasons that looking at the record at the california court of appeals cited so that you can answer my question maybe we decide you're right but it seems at least at this point i'm trying to give deference to the california court of appeals which listen number of things about the trial record that judge could could use th discretion and then properly make a exclusion in a mixed record just shocking staff report of what seems to be racial and part of it seems to be something rather the court of appeal still its primary reason for denials focusing on what the trial judge said about the shared racial identity so i'm not sure the court of appeal opinion really adds anything alice's but adds a lot of fine like they're talking about they're not necessarily racial that that would be reasons in question here and it's a it's a completely different question the problem you have in batson is that you have peremptory strikes and which are ordinarily free for all yes applies that's true and that's where it began from but but that cuts both ways in this case because if this person had been quite clear about if he said to me if he ha backed off at all then i think there'd be no question that you could remove him but to me the hard question is one that nobody is briefed which is because he was ultimately asked do you understand it as an inch in the death qualified  cases for example he was was he rest a wrecked atom by it because he was asked several times whether you can actually do this despite the fact is filipino and he said yes that to me is the question to the judge then have to accept that does the judge have at that point and nobody because you took the arc of this case out here you never really dealt with the actual set of facts before us well excerpts of record page i would like to i realize i'm over time i would just like to say one thing if the court concludes that this court's hany decision precludes relief i would just ask that we be  mourning your honour's deputy attorney general her testify on behalf of the responded and may please the court the record shows that there was no racial bias by the trial court in this case and if there had been you would concede that that the constitution doesn't permit a judge to do w prosecutor can't write absolutely ok so that i guess i just in a manner stand why you were sort of trying to back away from the assertions made in the sort of up well our point was only that to the extent petitioner has raised this as a batson claim is always background as that person you're out with no prompting you know just because whatsoever just on the assumption that you're going to be too sympathetic to the front you're conceding that of course the judge can't that absolutely that would be improper so that just takes all the legal stuff out of the way and then we focus on the facts of be the question is is the hard question is this this person raises this problem the judge was troubled by it he said to him well you know you really you can't do that and are you going to be able to   the question is so we have to be very careful about the the fact of making a racial distinction it whether you're doing it out of good motives or bad and then so to me the question is how how much do we have to allow this resurrection the way we do allow it in and a death qualified jury context most of the time don't we most of the time say as long as the judge th says he can he can despite his own views about the death penalty he can do this fairly i think the trial court we have to look at what happened in the entirety of the year in the trial court has discretion because a lot of juror might be resume play discretion well i think there's an abuse of discretion standard so there has to be a lot of times a juror a an attorney is especially good attorney a clever attorney will get a juror told them at least back off something say said initially and that's where the context has to come in and i think in this case it's particularly important to note with the context of when the juror actually brought up the issue of race the trial court asked him are you telling me that if the prosecution proved its case beyond a reasonable doubt in the jurors are required to return a guilty verdict that you won't be able to do that and the jurors response as it's hard for me i'm filipino i know he's filipino has nothing to do it but but he still brought up that that issue of race and it's for the trial court to say well his immediate response was race now he can try and back off of that but that was his immediate response to are you going to be able to return a good guilty verdict if the evidence proves it so in the trial court repeatedly said i'm concerned about this juror's representations about race that's what affected him and i think the trial we have to allow trial courts to have that kind of discretion to assess the jury's statements and state of mind and in this case as it's been noted this juror that was teary eyed in the shaking in the jurors in the trial court said this is a troubled person so the reason these are all factors that allow a tall clerk to make that decision and you know for an equal protection by lation we have to sort of show that there was some sort of racial discrimination this was just a sort of a routine a valuation of the jurors think we are if you have contradictory statements i don't think you can automatically wait for some magic words and if the juror ultimately says ok i can i don't think that's the end of the story i think it's very important when there are contradictory statements and there's a an attorney or the judge saying you know you can't let that affect you you can't let that affect you jurors will try and please the attorney or the court and say ok i won't but i think it's the original statements the fact that he brought up the issue of the race that he was teary eyed that he repeatedly said it's going to be hard for me it will be hard for me at the bottom of the line those were all those initial statements and i think a trial court is entitle to look at those initial statements as really being the essence of what that juror concerned about as a part is apart from statements that are all timidly made after lots of questioning that appeared to be designed to get that juror to say something  not dismiss this juror for any improper racial reason you address so i guess i'm inclined to disagree with you that the california court of appeal actually did render a ruling on the merits on this claim because if i remember what happened is that your opponent raised both kind of the it was it like a state law statutory argument or something like that and then a separate section addressing batson wheeler then you all for some odd reason in your opposition brief just ignored the bass and wheeler argument all together only argued against the state statutory thing and then we get this california court of appeal decision that only analyze the states that story thing and it has the one line that judge birds on mention which i did not read as speaking at all to the federal constitutional claim that  is now before us so maybe you can help me understand why you think that we should read into the california court of appeals cryptic statement that they actually were fully contemplating the merits of the so called batson or equal protection argument well the appeal said that there was no constitutional violation and this court has said that under the a t p a different standard a court doesn't have to supply any reasoning we don't know what the reasoning was for the court of appeal but the question is whether they rejected the claim on the merits and the fact that they said there is no constitutional violation encompasses equal protection income is it fair question should question was are you can i'm sorry a federal constitutional question was argued to them yes it was uncommon in fact in johnson versus williams the supreme court said even when there's no discussion of the federal constitutional claim there's a presumption that the court that the state court rejected even if they didn't discuss why isn't the fair assumption to make here that just as the state did the court of appeal just completely overlooked the entirely separate federal constitutional challenge that was being raised well i think one of the reasons might be was because it was raises batson and as we sort of discussed batson itself we're going to say there's no constitutional violation i'm speculating i don't know why but really the only question for twenty to fifty four d is whether they were checked out on the merits and i think the simple fact that they said there was no constitutional violation even without any discussion is could not sit in judgment of that defendant and basically cannot be capitally qualified he could not agree with that that is a lot more much more than what we have here we have nothing like that there is another case at the district court mentioned in our release moore said versus mcgrath and i think that was used to say here's a juror who came up and took the initiative and brought up the issue well there the juror says in the in the questionnaire that he believes