[00:00:01] Speaker 04: I think we're ready to go. [00:00:03] Speaker 04: Judge Gould, are you all set? [00:00:05] Speaker 00: Yes, I'm ready. [00:00:06] Speaker 00: Thank you. [00:00:06] Speaker 01: OK. [00:00:07] Speaker 01: We're ready to hear your argument. [00:00:08] Speaker 01: All right. [00:00:08] Speaker 01: Thank you, Your Honors. [00:00:10] Speaker 01: And hopefully everyone can hear me all right. [00:00:14] Speaker 01: Good afternoon, Your Honors. [00:00:15] Speaker 01: May it please the court. [00:00:17] Speaker 01: Laura Schaefer from the Office of the Federal Public Defender on behalf of Appellant Chauncey Jamal Weasley. [00:00:23] Speaker 01: I'd like to reserve five minutes of my time, and I will do my best to keep an eye on the clock. [00:00:29] Speaker 04: OK. [00:00:30] Speaker 01: Your honors, Batson instructs that the Equal Protection Clause forbids, and now I'm quoting directly from Batson, forbids the states to strike black veneer men on the assumption that they will be biased in a particular case. [00:00:44] Speaker 01: simply because the defendant, too, is black. [00:00:48] Speaker 01: The core guarantee of equal protection, ensuring citizens that their state will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the defendant's race." [00:01:06] Speaker 01: And this is the end of the Batson quote. [00:01:10] Speaker 01: The prosecutor testified that she struck juror Mary J. Because the case at bar involved, and now I'm quoting from the evidentiary hearing transcript, three young men using a firearm in the murder that was the subject of the case. [00:01:26] Speaker 01: And they were three relatively young African-American males. [00:01:31] Speaker 01: Her son was obviously a young, [00:01:33] Speaker 01: or African-American male who was arrested for carrying a gun or having a gun in his car. [00:01:41] Speaker 01: The prosecutor continued, so I wondered whether she might feel sympathetic to them, meaning to the defendants. [00:01:50] Speaker 01: Your Honors, this is exactly the kind of race-based assumption that Batson forbids. [00:01:55] Speaker 04: Well, can I stop and break this down? [00:01:57] Speaker 04: I guess one part is annoyingly distracting to me, which we don't actually know if her song was black or not, right? [00:02:04] Speaker 01: That's correct, Your Honor. [00:02:05] Speaker 04: OK. [00:02:06] Speaker 04: So setting that aside for a minute, of course, the difficulty here is there's a race-based reason. [00:02:12] Speaker 04: We don't typically hear this. [00:02:15] Speaker 04: And a non-race-based reason in this case. [00:02:19] Speaker 04: And again, to just back it up if I can a little bit, we have a declaration from her first, from the prosecutor. [00:02:25] Speaker 04: I'll ask you both this question. [00:02:27] Speaker 04: And I'd like to hear your responses. [00:02:29] Speaker 04: Well, I should say all three. [00:02:30] Speaker 04: I'd like to hear your responses. [00:02:31] Speaker 04: But if we were just looking at the declaration, would there be a valid Batson claim here? [00:02:37] Speaker 01: There still would be a valid Batson claim, Your Honor, because if we were to look also to the comparative juror analysis as to these strikes, and particularly as to juror MJ, we would be able to make out the Batson violation. [00:02:50] Speaker 03: But the Batson violation... On what grounds specifically are you referring to? [00:02:56] Speaker 01: Sure. [00:02:57] Speaker 01: So there are several indications that we can look to to look for pretext in comparing juror Mary J to other similarly situated jurors. [00:03:06] Speaker 01: So for example, one claim that the prosecutor made was that she was concerned about the statement Mary J. offered in regards to the death penalty, whether Mary J. was an unabashedly pro-death penalty juror. [00:03:25] Speaker 01: So it was surprising even to the defense that she was struck. [00:03:29] Speaker 01: I think the defense referred to her as a people's juror. [00:03:33] Speaker 01: not one for the defense. [00:03:35] Speaker 01: And when she responded as to her feelings on the death penalty in the questionnaire, she said, I'm with the death penalty. [00:03:41] Speaker 01: If the law says death, I'm with the death penalty. [00:03:44] Speaker 01: And the prosecutor somewhat surprisingly then stated that she felt that this indicated that juror Mary J. would have a problem with the death penalty weighing process. [00:03:56] Speaker 01: And frankly, Your Honors, it's hard to believe that a prosecutor would be using a peremptory to strike a juror solely because the prosecutor found the juror to be too death penalty friendly. [00:04:07] Speaker 04: And there were other jurors who also- Well, that's not just to give her credit where it's due. [00:04:12] Speaker 04: What she described there is more nuanced, right? [00:04:14] Speaker 04: She was concerned that what she said, anyway, is that she was concerned that this juror was going to be looking for sort of an on-off switch and not really understand that at the penalty phase there'd be a weighing, right, of aggravating and mitigating. [00:04:29] Speaker 01: That's correct, Your Honor. [00:04:30] Speaker 01: And I think we can then look to other jurors who expressed similar types of thought about how the death penalty decision would be made. [00:04:41] Speaker 01: So for example, juror Benton M, who was not challenged by the prosecutor, said, it is a consequence of an illegal act and its application is specified by law, which to me is very similar to suggest that the law will tell you whether or not the death penalty should result in this case. [00:05:00] Speaker 01: So what we would argue, Your Honor, is that this was a very thin ground on which to base the rejection of [00:05:08] Speaker 01: juror MJ. [00:05:11] Speaker 01: And we also have to look at the fact that with juror Mary J, the prosecutor made a notation on her questionnaire as to one of the groups she was a part of. [00:05:23] Speaker 01: And one of the groups that juror J said she was a part of was the NAACP. [00:05:29] Speaker 04: And the questionnaire... Is that argued in the district court? [00:05:32] Speaker 04: That seems to be an argument that's new now. [00:05:36] Speaker 01: I believe, Your Honor, that was argued in the district court because it was a subject of discussion at the evidentiary hearing. [00:05:43] Speaker 04: If you come back and can show us where that was argued in the district court, that would be helpful. [00:05:47] Speaker 04: But your answer to the question really, when I said this is where we started down this path, if we just had [00:05:56] Speaker 04: the declaration and not the testimony, I think your answer is yes, you'd still have a Batson challenge. [00:06:01] Speaker 04: And in response to Judge Desside's question, I think your answer is that a comparative juror analysis would get you there, even without the testimony. [00:06:10] Speaker 01: Yes, that's correct, Your Honor. [00:06:13] Speaker 03: And that specific issue with respect to the NAACP affiliation that's on the questionnaire, that's not part of your argument with respect to the comparative juror analysis, correct? [00:06:26] Speaker 01: It is in the sense that all of the jurors were asked to list their affiliations on the questionnaire. [00:06:32] Speaker 01: And from our review of the questionnaires that were then produced with the prosecutor's notes, there were no other affiliations that were noted on the front page of the questionnaire. [00:06:42] Speaker 01: So I do also think comparative juror analysis comes in here, because there was clearly something about that affiliation with juror MJ that gave the prosecutor pause. [00:06:52] Speaker 01: There was a reason she noted that. [00:06:56] Speaker 04: So this kind of brings us back to she noted other reasons. [00:07:01] Speaker 04: She, I think, mistakenly understood that Jay was a social worker, for example. [00:07:09] Speaker 04: She noted some other reasons that we see prosecutors rely upon. [00:07:16] Speaker 04: And I think you're nodding your head. [00:07:18] Speaker 04: I think you agree with that. [00:07:19] Speaker 04: And the district court found that. [00:07:21] Speaker 04: The district court found that this reason was not [00:07:26] Speaker 04: substantial motivating factor, right? [00:07:28] Speaker 04: The race-based reason was not the substantial motivating factor. [00:07:31] Speaker 04: Except he didn't really find that. [00:07:32] Speaker 04: What he found was that the substantial motivating factor was that she was a mom, basically. [00:07:39] Speaker 04: That she was the mother and said that the mother-son relationship was stronger than the other relationships when it got to the comparative juror analysis stage. [00:07:55] Speaker 04: One question I have that, and I'll have it again, I'll have it for all of you, is that the district court mentioned, he makes the ultimate finding that race was not a substantial motivating factor. [00:08:08] Speaker 04: And he acknowledges this part of the testimony that you mentioned, which is, but not all of it. [00:08:19] Speaker 04: Um, so he, he, he acknowledged the part that really essentially, I have it here, but it's kind of a long quote as you, um, just laid out for us. [00:08:29] Speaker 04: He acknowledged the part where she testified to being concerned that juror MJ might be overly sympathetic because she had a son who was charged with gun related offense also. [00:08:42] Speaker 04: That's my paraphrase. [00:08:44] Speaker 04: But I don't think there's a place where the district court acknowledged the other part of the sentence, of the testimony, which starts with our case was three young men using firearms in the murder. [00:08:57] Speaker 04: There were three relatively young African American men. [00:08:59] Speaker 04: Jackson Sung was obviously African American and so forth. [00:09:02] Speaker 04: So it seems to me that that can be taken two ways. [00:09:05] Speaker 04: Do you read it differently? [00:09:07] Speaker 04: What's your response to that? [00:09:10] Speaker 01: Well, I would agree, Your Honor, that it is a telling omission in the way that quote is presented in the district court opinion. [00:09:19] Speaker 01: And I think it lends support for a finding of clear error in this case, because it's not engaging with the explicitly race-based reason. [00:09:27] Speaker 03: So let me ask you this. [00:09:29] Speaker 03: Let's just say we agree with you that the district court clearly erred by failing to acknowledge [00:09:36] Speaker 03: that the prosecutor gave an explicitly race-based explanation for the strike of Mary J. Should we remand or should we conduct the Batson analysis ourselves? [00:09:48] Speaker 01: Your honor, I believe the appropriate course at this stage would be to conduct the Batson analysis yourselves. [00:09:54] Speaker 01: And I believe with the evidence that has now been produced at the district court level, because they went forward with a reconstruction hearing and because we have the declaration from the prosecutor on review of the district court's decision, I believe this court has sufficient evidence to find that a Batson violation [00:10:13] Speaker 01: did result from the strike of juror MJ. [00:10:16] Speaker 04: Do you have any authority for the notion that we wouldn't send this back to the district court? [00:10:20] Speaker 04: He's overlooked this, arguably, in this particular hypothetical. [00:10:24] Speaker 04: In other words, if we decide that this hasn't been grappled with, your response to Judge Desai's question is that we should do this here. [00:10:33] Speaker 01: Yes, Your Honor, because I believe the record. [00:10:34] Speaker 04: My question is, do you have authority for that where we've done that? [00:10:39] Speaker 03: Let me just ask this question on top of Judge Kristen's question. [00:10:42] Speaker 03: I think what you said is that we can do this, but it would not be improper to send this back for remand. [00:10:50] Speaker 03: Maybe as you're answering Judge Kristen's question, you can cite to the best authority that you have that we ought to decide it here versus perhaps authority that indicates it's regularly more appropriate to remand to the district court. [00:11:06] Speaker 01: Yes, Your Honors, and I might have to come back on rebuttal with case sites that specifically look at what the principles are that guide sending it back again to the district court to reconsider. [00:11:19] Speaker 01: But my answer, Your Honor, based on the cases that we've reviewed, based on Shirley versus Yates, based on Paulino, too, is that when you have the reconstruction hearing and you have the evidence that has been created and that evidentiary record is available, [00:11:35] Speaker 01: It's not unusual for this court then to decide whether or not clear error was committed and then to look at the body of evidence that has been already created in the court below to determine whether the case can be met. [00:11:50] Speaker 01: And we would argue, Your Honors, that at this stage, it is not [00:11:55] Speaker 01: difficult to find that a Batson violation has occurred. [00:12:01] Speaker 01: As we have briefed and as we argued at the district court, there were already concerns with the idea that 27 years after the trial, we would be able to create an opportunity for the prosecutor to come and give the reasons that would supply the step two analysis. [00:12:18] Speaker 01: And so now that we've gone down that road, we've filled out the evidence. [00:12:22] Speaker 01: We've allowed the prosecutor, as you mentioned, to submit the declaration, to give her testimony. [00:12:27] Speaker 01: There is significant evidence that now exists before this court that [00:12:32] Speaker 01: would allow it to make the ultimate determination that on the basis of this record, race was a substantial motivating factor. [00:12:40] Speaker 01: And whether it was an oversight on the part of the district court, the district court had this evidence before it. [00:12:47] Speaker 01: So this is not something that wasn't in the record before the district court. [00:12:50] Speaker 04: But he hasn't addressed it. [00:12:52] Speaker 01: That's true, Your Honor, but we would say that's indicative of clear error rather than somehow this. [00:12:58] Speaker 03: Well, to be fair, there is a declaration that basically says the same thing as Prosecutor Decker said in the transcript of the evidentiary hearing, but then omits the references to the raise of the defendants. [00:13:13] Speaker 03: And so I think that you could also read that to mean that he [00:13:18] Speaker 03: looking at both, he's taking the sort of common denominator as between the two explanations and sort of addressing, you know, that that's sort of how he read her explanation. [00:13:29] Speaker 01: I understand your Honor's point, but I would disagree, and the reason I would disagree is because the evidentiary hearing is supposed to ferret out [00:13:38] Speaker 01: the actual reasons for the strike. [00:13:40] Speaker 01: And this is why the case law is so insistent on the fact that the people who are present for the evidentiary hearing, they're able to do the best assessment of credibility. [00:13:50] Speaker 01: They're the ones who were there at the time. [00:13:53] Speaker 01: They're able to see what actually happens. [00:13:54] Speaker 04: That's why we would send it back, though. [00:13:56] Speaker 04: You're telling us, I agree, and yet you're wanting us to make that finding here. [00:14:01] Speaker 04: It's a conundrum, because the district court has made the ultimate conclusion here that we need. [00:14:07] Speaker 04: that Batson calls for, that race was not a substantial motivating factor. [00:14:11] Speaker 04: But we can't tell from this record unless, I haven't heard from the state yet, but I don't think we can tell what the district court thought about this discrepancy, the delta between the testimony in the courtroom and the declaration, which Judge Josiah and I both have asked you about. [00:14:24] Speaker 01: Understood, Your Honor. [00:14:27] Speaker 01: I would say that it's telling that there is this discrepancy between the declaration and the evidentiary hearing testimony. [00:14:34] Speaker 04: But we look at circumstantial evidence to be sure, right? [00:14:37] Speaker 04: And I want to hear what the state has to say about this. [00:14:42] Speaker 04: I think from reconstructing this that there's the declaration, and I think that the heart of the testimony that you and I both quoted, our case was three relatively young African-American men. [00:14:53] Speaker 04: But that sentence was just about the first thing the prosecutor said. [00:14:57] Speaker 01: Yes, Your Honors. [00:14:58] Speaker 01: And to our mind, that suggests that that was something that truly stuck out in her mind. [00:15:03] Speaker 01: This is sort of the credibility that [00:15:06] Speaker 01: these cases talk about and thinking, what is it that is really motivating the prosecutor's strike? [00:15:10] Speaker 01: What is the actual reason? [00:15:12] Speaker 01: In a declaration, the declaration is prepared on the basis of conversations with the attorney general once the evidentiary hearing has been granted, it's been reviewed, it's been submitted. [00:15:22] Speaker 01: That is not a mistake that is going to be made in a written declaration, but that was a mistake that was made at the evidentiary hearing. [00:15:29] Speaker 04: Was this argument that you're making right now about this discrepancy between the declaration and the testimony made before the district court? [00:15:36] Speaker 01: It was not presented before the district court as strongly as it should have been, Your Honor. [00:15:40] Speaker 01: No. [00:15:40] Speaker 01: The argument that, oh, I'm sorry. [00:15:42] Speaker 04: I don't think it was. [00:15:43] Speaker 04: And if you've got, and I'm not trying to give you a hard time, but if when you come back, if you can show me that it was argued to the district court, that would be helpful. [00:15:50] Speaker 04: You know, we're kind of pulling this together and trying to piece it together. [00:15:56] Speaker 04: But I don't know that it was argued. [00:15:58] Speaker 04: So we are so deferential to the district court, who did have an evidentiary hearing, found the prosecutor credible, [00:16:06] Speaker 04: I can't see anywhere where this concerning testimony has been grappled with. [00:16:11] Speaker 04: You're arguing that it was clear error, so we don't typically. [00:16:17] Speaker 01: Go ahead. [00:16:19] Speaker 01: I just wanted to say that I believe under Paulino 2, this is a step 2 consideration, and a step 2 consideration I believe is actually reviewed under de novo review. [00:16:28] Speaker 03: I think it's a step 3 consideration. [00:16:30] Speaker 03: Why isn't it a step 3 consideration? [00:16:33] Speaker 01: Because the step two consideration asks whether or not a race neutral reason has been advanced. [00:16:39] Speaker 03: It's a burden of production. [00:16:41] Speaker 03: So here, I think you argued already that there had been explanations provided, some of which are race neutral. [00:16:50] Speaker 03: So once that happens, why don't we move to step three? [00:16:58] Speaker 01: I'll clarify what I was trying to say, Your Honor. [00:17:01] Speaker 01: I believe we do move to step three, but step three remains under the clear error analysis. [00:17:07] Speaker 01: Step two allows for de novo review. [00:17:10] Speaker 01: Obviously, the steps sort of bleed into one another. [00:17:13] Speaker 01: a bit complicated, but I don't think there's any case law that suggests reading out the race-based reason given in the step two analysis. [00:17:22] Speaker 01: Yes, there was one or two other reasons given, but there's nothing that says that just don't consider, because frankly, it doesn't happen very often. [00:17:29] Speaker 04: Yeah, but at step three, the Supreme Court has addressed this, and we've addressed it. [00:17:32] Speaker 04: At step three, we're still looking for was the race-based reason a substantial motivating factor? [00:17:39] Speaker 01: That's correct, Your Honor. [00:17:40] Speaker 03: And what we would say is that this court can look to the record that was created de novo for the... Yeah, so I think maybe what you're arguing is in response to sort of an earlier discussion we were having as to whether it was raised. [00:17:51] Speaker 03: My view is that by raising the Batson claim, the issue is properly in the record. [00:17:58] Speaker 03: It's before us. [00:17:59] Speaker 03: We can look at it. [00:18:00] Speaker 03: I don't think there's a waiver. [00:18:01] Speaker 03: And if you didn't make the argument as well as it should not you, but if [00:18:07] Speaker 03: at the evidentiary hearing of these arguments, all the different theories of the claim had not been presented as well as they should have been. [00:18:14] Speaker 03: I don't think that's a waiver, but it, I think, goes to the question that I asked earlier, which is what is the best authority that you have for why we should decide this ourselves as opposed to having the district court take a pass at it with sort of the full [00:18:34] Speaker 03: Throated arguments that you're making here before us now Thank you your honor. [00:18:39] Speaker 01: Yes, I understand the concern and I will have to come back with authority for the proposition that the district court should again have the opportunity to pass on this I would say that The amount of time that has already passed to get to the bats in step two analysis in this case and [00:18:58] Speaker 01: has allowed for now sufficient evidentiary development for this court to look at the record and decide on the basis of the record that has been developed. [00:19:07] Speaker 01: I think there is a problem of timing here with how long it has taken to actually get these reasons on the record and to send it back to the district court once again, where it is likely that if [00:19:20] Speaker 01: fully confronted with there was a race-based reason given at step two at the evidentiary hearing, which is strongly indicative of the fact that race was in fact a substantial motivating factor because why is it popping into her mind at this point differing from the declaration that was given. [00:19:39] Speaker 01: that at this point I think this court can make the decision here. [00:19:42] Speaker 01: I don't think more information is needed from the district court for this court to make the legal judgment that in fact all of the evidence exists on the basis of this record to find that a Batson violation had occurred with respect to... So you are asking us to make a finding of fact. [00:19:59] Speaker 04: But let me just pause here because you wanted to reserve some time and we haven't let Judge Gould get in a word [00:20:07] Speaker 04: at all at this point. [00:20:11] Speaker 04: Judge Gould, I know it's hard to break in sometimes when you're on video. [00:20:14] Speaker 04: Do you have questions at this point that you would like to ask? [00:20:19] Speaker 00: I have a general question, but I think it, I'm not sure how pertinent it is. [00:20:26] Speaker 00: I was trying to understand exactly why so much time has passed between the end of the trial and us getting this Batson issue. [00:20:40] Speaker 00: At this stage, maybe, I don't know how many years has it already been. [00:20:48] Speaker 01: I believe we are 34 years after the time of [00:21:06] Speaker 01: That was 27 years. [00:21:08] Speaker 00: It's over 34 years since trial. [00:21:12] Speaker 00: Now if we say if we don't decide the issue now, then we send it back for the district court to elaborate on step three analysis. [00:21:33] Speaker 00: then there'd be a judgment of the district court at some point. [00:21:40] Speaker 00: And if that were appealed, it would be coming back to us. [00:21:46] Speaker 00: And at what time, how many years after the second district court opinion would it be? [00:21:55] Speaker 00: We don't know, right? [00:21:59] Speaker 00: But if it's already been, [00:22:01] Speaker 00: How many years? [00:22:02] Speaker 00: 30? [00:22:03] Speaker 00: 37? [00:22:06] Speaker 04: About 14, since it had to go through the state court first, right? [00:22:10] Speaker 04: Sorry, yes. [00:22:11] Speaker 04: That's understood. [00:22:13] Speaker 04: 14 years since the 2254s were filed. [00:22:16] Speaker 04: Yeah. [00:22:16] Speaker 00: So I'm getting concerned if we don't decide the issue and send it back, if it's been so long since the trial that all the key witnesses may have passed away. [00:22:33] Speaker 00: or documents may have been destroyed. [00:22:36] Speaker 00: It may practically become impossible to have another trial. [00:22:45] Speaker 00: And I'm concerned about what impact that would have the next time the court reviews the case. [00:22:55] Speaker 01: Thank you, Your Honor. [00:22:56] Speaker 00: Wouldn't that issue, to me that issue would [00:23:00] Speaker 00: for our panel deciding the issue once and for all, unless the Supreme Court grants a review after that. [00:23:14] Speaker 01: I would agree with your Honor's position. [00:23:16] Speaker 01: I think the information, as I said, I believe is in the record for this Court to be able to make a ruling that it is confident in. [00:23:26] Speaker 01: And this, I think, gets to the tension in the case law [00:23:29] Speaker 01: in what is a determination of fact versus what is a legal determination when we're talking about the review of a Batson error. [00:23:39] Speaker 01: And I understand your honors to be saying that there was an issue of fact that was perhaps not flagged sufficiently. [00:23:47] Speaker 04: Because, counsel, you labeled this as clear error. [00:23:50] Speaker 04: You labeled this as clear error. [00:23:53] Speaker 01: Yes, Your Honor. [00:23:54] Speaker 01: I believe that the step three, but not to say that I necessarily disagree with the bulk of the case laws to whether this is a factual or a legal determination, but I believe that the facts that we're concerned about when we send things back to the district court on remand are here. [00:24:11] Speaker 01: And so what the real question is, is taking into account these facts. [00:24:15] Speaker 01: how did the legal analysis come out, and did the legal analysis come out directly? [00:24:19] Speaker 01: And that's why I believe this court is in a position now to make that determination. [00:24:23] Speaker 04: So you would have us rule, just to be clear on this, that even though the district court made the finding that race was not a substantial motivating factor and found that the prosecutor was credible, that because this other race-based reason had been articulated and not [00:24:44] Speaker 04: addressed by the district court and not argued to the district court by the defense, I don't believe, that the district court clearly erred by finding that and that we would say this was a substantial motivating factor? [00:25:01] Speaker 01: Yes, Your Honor, I would because I think the clear error analysis looks at as to whether the record supports [00:25:07] Speaker 01: the district court's finding. [00:25:09] Speaker 04: That's the conclusion, so just walk me through it if you would. [00:25:12] Speaker 04: That's because you think that I'm just trying to glean this from what you're telling me. [00:25:16] Speaker 04: I think what you're saying is that we would look to the circumstantial evidence that there's this delta between the declaration and the testimony. [00:25:28] Speaker 01: Yes, Your Honor. [00:25:28] Speaker 01: I'm not sure why the testimony during the evidentiary hearing isn't direct evidence of the prosecutor's stated motivation. [00:25:34] Speaker 04: I didn't say it wasn't. [00:25:35] Speaker 04: I'm just trying to figure out what you're telling me. [00:25:37] Speaker 04: What would be the basis for us making this finding here? [00:25:40] Speaker 01: The basis, Your Honor, is that the record, the evidentiary hearing transcript, which was reviewed by the district court and presided over by the district court, is what contained this [00:25:51] Speaker 01: Admission on the part of the prosecutor as to the actual reason for her strike. [00:25:55] Speaker 03: Let me just tell you that I'm I agree with you it is the the express statement during the hearing is exactly the type of Race based sympathy reasoning that is That is prohibited under Batson, but I think the question that we're [00:26:19] Speaker 03: you know that that are other questions about whether we decided or send it back get to is that that is true but the district court didn't grapple with that and we don't know why and because it wasn't argued it is hard [00:26:35] Speaker 03: So there may be a clear error in the sense that there's this explicit race-based statement that is some of the worst that you can imagine if you're thinking about a Batson claim, but it hasn't been considered or addressed in any way, even though it is, in fact, and I agree with you, on the record. [00:26:53] Speaker 01: Yes, Your Honors, and I do understand and I think it brings us back to Judge Gould's point, which is that there can also be a consideration, I think, of what it would mean to remand to the district court simply to draw attention to that explicit statement and then have the district court draw the conclusion that it seems [00:27:16] Speaker 01: one should draw from what that statement meant as to the prosecutor's reasons for striking MJ, the time that that would take, the appellate process that that would take, there is a quantum of prejudice here that's sort of increasing with the amount of time that this claim has not been resolved. [00:27:33] Speaker 04: Forgive me for an opening, but you're down to under 30 minutes. [00:27:34] Speaker 01: I see that, yes. [00:27:35] Speaker 04: Do you want to save what you've got left? [00:27:36] Speaker 01: Yes, I'll save my remaining time. [00:27:38] Speaker 01: All right. [00:27:38] Speaker 04: Thank you for your responses. [00:27:39] Speaker 04: Thank you, Your Honors. [00:27:51] Speaker 02: Good afternoon, your honors. [00:27:52] Speaker 02: May it please the court? [00:27:54] Speaker 02: Deputy Attorney General Stephanie Yee on behalf of the state. [00:27:57] Speaker 02: This court should affirm the denial of the Batson claim. [00:28:00] Speaker 02: With regard to juror MJ and in response to Judge Friston's question, there's no Batson violation whether we rely on the declaration or even including the testimony that was given at the evidentiary hearing by the prosecutor. [00:28:14] Speaker 02: The prosecutor articulated her concern about MJ. [00:28:19] Speaker 02: And it was more about the similar situation that the defendants were in and how she feared MJ. [00:28:26] Speaker 03: But when she was describing that, as I think you're about to characterize her testimony, in the declaration, when carefully drafted, she excluded [00:28:35] Speaker 03: the references to the race of the defendants and also of juror Mary J and Mary J's son. [00:28:45] Speaker 03: But when asked this question and answering it at the evidentiary hearing, very explicitly referenced race. [00:28:52] Speaker 03: So I'm not sure I understand why she didn't just frame her response in the same way that she did the declaration if that was truly her intent. [00:29:02] Speaker 02: Yes, your honor. [00:29:02] Speaker 02: There is that difference between the declaration and the evidentiary hearing. [00:29:07] Speaker 02: However, in looking at her whole explanation, there is additional explanation here that was not quoted that she gave at the evidentiary hearing. [00:29:16] Speaker 02: And the prosecutor explained, I believe MJ was a little older, maybe in her 50s, whether she might feel sympathetic to the defendants thinking that they were kind of in the same situation as her son had been. [00:29:28] Speaker 02: And what the prosecutor was... Uncle, I think that's right. [00:29:31] Speaker 04: And you're telling us what you think the prosecutor argued and what was or was not a substantial motivating factor. [00:29:36] Speaker 04: So that brings me back to where I started, which is there's one reason in the declaration, and there's another reason, which is I think can be read two different ways. [00:29:47] Speaker 04: But it is certainly a reference to race, very directly. [00:29:52] Speaker 04: I don't know that Judge Desai and I are coming at you in quite the same way, but if I read all in that there is a delta between the declaration and the testimony, and I'm concerned that the first thing she said in the testimony can be read to be race-based. [00:30:10] Speaker 04: It wouldn't have to be. [00:30:11] Speaker 04: The conundrum I have is that the judge made the bottom line ruling that this was not motivated in substantial part by race. [00:30:22] Speaker 04: without grappling with the part of her testimony that is race-based. [00:30:27] Speaker 04: So that's where I'm sitting on this. [00:30:29] Speaker 04: And I mean, I've stared at this. [00:30:30] Speaker 04: I've squinted at it really hard, as I'm sure you have. [00:30:33] Speaker 04: So if I think it can be read two ways and the district court didn't address the race-based rationale, what's your advice about what happens to this next? [00:30:46] Speaker 02: Yes, so I have two responses. [00:30:48] Speaker 02: The first is that we cannot assume from the district court's opinion that it didn't grapple with this part of the prosecutor's response. [00:30:56] Speaker 02: The prosecutor, excuse me, the district court presided over the evidentiary hearing. [00:31:01] Speaker 02: It heard all the testimony. [00:31:02] Speaker 02: It heard the prosecutor's response when she did make that acknowledgement of racism. [00:31:06] Speaker 03: So is your argument that we should in fact decide this ourselves? [00:31:10] Speaker 03: as opposed to remanding it if we find that there's clear error in the ultimate determination that she wasn't motivated by race? [00:31:17] Speaker 03: No, Your Honor. [00:31:18] Speaker 03: And that's for... Sounds very much like you are saying that by saying that we must assume that the district court considered all of these things and simply because its ultimate ruling didn't expressly address it, it doesn't mean that it wasn't considered. [00:31:35] Speaker 02: No, Your Honor. [00:31:36] Speaker 02: What I'm saying is that the district court did hear all of these things, considered them, and then made the ultimate finding that race was not a substantial motivating factor. [00:31:46] Speaker 04: He might have, but we can't tell that. [00:31:49] Speaker 04: And I don't see where the defense made this argument. [00:31:53] Speaker 04: So if the district court did that, he did it on his own without receiving the argument in his defense. [00:32:02] Speaker 04: I don't think this was presented in the district court. [00:32:05] Speaker 02: I think that you're right, Your Honor, it wasn't argued to the district court, but I think the fact that the district court did quote a portion of her testimony, including a portion that included the reference to race, that the district court did consider that testimony, and it did make the ultimate finding upon considering. [00:32:23] Speaker 04: I don't think I understand what you just said. [00:32:24] Speaker 04: When the court did consider, did you say a portion of the testimony that addressed race? [00:32:30] Speaker 02: Yes. [00:32:30] Speaker 04: Is that what you said? [00:32:31] Speaker 04: Okay. [00:32:31] Speaker 04: Yes. [00:32:32] Speaker 04: Can you help me out? [00:32:32] Speaker 04: Where are you looking? [00:32:34] Speaker 02: Yeah, in the district court's opinion when it talked about juror MJ, and this is on page 16 of the district court's opinion, it references the part where the prosecutor said, our case was three young men using a firearm in the murder that was the subject of the case, and they were three relatively young African-American males. [00:32:55] Speaker 02: So the district court actually quoted ... I'll give you that. [00:32:59] Speaker 04: Okay. [00:33:00] Speaker 04: I'll give you that, but not the other quote, right? [00:33:02] Speaker 04: The first thing she said, and I think Judge Desai and I both have pointed this out. [00:33:06] Speaker 04: There's a lot of time to come up with a declaration and carefully prepare it. [00:33:10] Speaker 04: I'm not casting any aspersions. [00:33:11] Speaker 04: I'm just saying that's a pre-prepared thing. [00:33:13] Speaker 04: And it is meaningful to me that this testimony, our case was three young men using a firearm in the murder, and they were three relatively young African-American males. [00:33:23] Speaker 04: Jackson's son was obviously a young African-American male. [00:33:26] Speaker 04: I don't know if that's right or not, but that's what she thought, who was arrested for carrying a gun or having a gun in his car. [00:33:31] Speaker 04: And then she goes on to say, I have concern that she's going to be overly sympathetic. [00:33:36] Speaker 04: That quote I don't think gets mentioned by the district court. [00:33:38] Speaker 04: Is that right? [00:33:39] Speaker 02: That is correct, Your Honor, but I think the fact that the district court did make this reference, albeit it wasn't the complete quote, it was a very long quote by the prosecutor, but I think the fact that the district court did mention this quote, including the reference to race, shows that the district court did consider that testimony. [00:33:56] Speaker 04: It shows that he considered some reference to race. [00:34:00] Speaker 04: I agree with that. [00:34:01] Speaker 04: It's just not the more compelling direct statement. [00:34:05] Speaker 02: Yes, and I think that [00:34:07] Speaker 02: That's a far jump from saying that to saying that the district court clearly erred. [00:34:12] Speaker 02: Because the district court did reference that, and the district court had all the information before it. [00:34:18] Speaker 02: And its findings are amply supported by the record. [00:34:21] Speaker 02: And I think to the earlier questions as well, that's why this court, this should be decided by the district court. [00:34:28] Speaker 02: And if there is a question by this court about whether the district court considered that, [00:34:33] Speaker 02: it should be sent back, because the supreme... Okay, so can we back up then? [00:34:37] Speaker 04: When you say that the findings are amply supported, the finding that's amply supported, I think what you mean, if I could just break this down, is the finding that race was not a substantial motivating factor is amply supported. [00:34:48] Speaker 04: I think that's right, because if you go back to a little higher on the decision tree, there's two reasons given. [00:34:55] Speaker 04: One is that she's the mother of a similarly situated young man, and the other is that [00:35:01] Speaker 04: She's African American and there's concern that she would be overly sympathetic and perhaps not apply the law evenly because there are three African American defendants. [00:35:10] Speaker 04: So the fact that the ultimate determination is amply supported doesn't help me very much because I still don't know whether this other, I don't think the other evidence was, well I can't tell if it was considered or not. [00:35:24] Speaker 02: Well, I think this quote shows that it was considered, Your Honor. [00:35:27] Speaker 02: And I think that we can reasonably assume that the district court considered that everything that was before it, including the testimony, the declaration, everything of the record that was supported, the contemporaneous handwritten notes, the district court noted in its opinion that it considered all of that and ultimately made that finding that race was not a substantial motivating factor. [00:35:47] Speaker 03: And it is- Let me ask you this, because I am [00:35:51] Speaker 03: Troubled by the explicit reference to race, I think it's impossible to ignore those statements. [00:35:58] Speaker 03: And so maybe you can just take a moment to respond to your friend on the other side's argument that there was clear error at step three in ultimately determining that race wasn't a substantial motivating factor because we have to look at the other comparator juror analysis and things like the notation of the NAACP on the juror questionnaire and things like that. [00:36:20] Speaker 02: Yes, Your Honor. [00:36:21] Speaker 02: So with respect to those, I would like to point out that for comparative Dura analysis, RM was never raised before. [00:36:28] Speaker 02: It wasn't raised in the district court, and it wasn't raised until this briefing. [00:36:32] Speaker 02: And so I do think that that issue was forfeited, because it wasn't before the district court. [00:36:36] Speaker 03: Have you raised an issue of forfeiture or waiver yourself? [00:36:40] Speaker 03: Because the government can also waive a waiver if you didn't raise it. [00:36:45] Speaker 03: So I'm curious to know, have you raised that issue? [00:36:48] Speaker 03: And if so, can you point me to where in the record [00:36:50] Speaker 03: that you have raised here on appeal that there is a forfeiture or a waiver? [00:36:55] Speaker 02: I don't know that that was stated on our briefs, Your Honor. [00:36:59] Speaker 02: However, I think that it can be forfeited because when we're looking at the district court's opinion and whether there was clear error, clear error can't be based on something that was not raised before it, that it didn't have occasion to decide because one party didn't raise it below. [00:37:13] Speaker 03: And so when the... But the comparative juror analysis was developed at the district court. [00:37:20] Speaker 03: these claims were raised, if the specific theories or arguments were not raised, then that doesn't negate the ultimate claim. [00:37:29] Speaker 03: And so I'm asking you, you're arguing here today for the first time, I think, forfeiture, but is there any place in your briefs that you can point to where you have raised this issue before? [00:37:39] Speaker 02: We have not, Your Honor, but I would disagree with that because the court does have to rely on the parties to proffer jurors for comparative analysis. [00:37:47] Speaker 02: The district court is not obligated to sue a sponte, go through all the juror questionnaires, and do its own comparative analysis. [00:37:54] Speaker 02: The issues must be framed by the parties. [00:37:57] Speaker 02: And so because RM was not raised below, the district court did not have occasion to consider it. [00:38:02] Speaker 02: However, even if this court were to consider RM, he is not similarly situated to MJ because saying that [00:38:09] Speaker 02: Yeah, I'm sorry. [00:38:10] Speaker 03: Maybe we're talking past each other. [00:38:12] Speaker 03: So I'm asking specifically about the notation on juror MJ's questionnaire with respect to the NAACP affiliation. [00:38:24] Speaker 03: And you're talking about a different juror, I think. [00:38:27] Speaker 04: So the NAACP notation on the juror card, I think, wasn't argued. [00:38:33] Speaker 04: I don't think it was argued before the district court. [00:38:37] Speaker 04: Your position, I think your response was that the defense waived that. [00:38:41] Speaker 04: And Judge Desai's question is, well, has the state waived waiver? [00:38:45] Speaker 04: Because we don't see it in your briefing. [00:38:47] Speaker 04: I don't mean to put words in your mouth. [00:38:48] Speaker 03: That was my question, but now you're referencing a different juror altogether, so I am confused. [00:38:54] Speaker 02: So I was responding, and I'm sorry if I misunderstood. [00:38:57] Speaker 02: I thought the court was asking about the comparative juror analysis that Measley had raised in argument, as well as the NAACP notation. [00:39:03] Speaker 02: And so I was addressing the comparative juror analysis first. [00:39:06] Speaker 02: But with regard to the NAACP notation, again, that also wasn't raised before the district court. [00:39:13] Speaker 02: However, the problem- And did you waive waiver? [00:39:15] Speaker 04: That's what we're asking. [00:39:17] Speaker 02: I don't think that that was asserted in our briefs, but I don't think that that forfeits argument because, again, we're looking at what was before the district court when it made its finding. [00:39:26] Speaker 02: And at the evidentiary hearing, the prosecutor actually was asked about the NAACP notation. [00:39:33] Speaker 02: And Beasley's counsel asked her, what concerned you about the NAACP? [00:39:37] Speaker 02: And the prosecutor said, nothing concerned me. [00:39:39] Speaker 02: It was just something to get to know her, along with all the other things that she noted about MJ. [00:39:43] Speaker 02: like the fact that she was divorced. [00:39:45] Speaker 02: She had four children. [00:39:46] Speaker 02: The last book she read was the Bible. [00:39:49] Speaker 02: There were a number of things that she noted on MJ's questionnaire. [00:39:53] Speaker 04: Right, but how does that look when you compare it to other juror questionnaires? [00:39:58] Speaker 04: Did she note on other juror questionnaires membership in Rotary or Girl Scouts or what have you? [00:40:04] Speaker 04: Well, again, it's difficult to... I think the answer is no. [00:40:08] Speaker 04: But if you can show me that she did that, it would be helpful. [00:40:11] Speaker 02: The difficulty, Your Honor, is that Beasley didn't name any other jurors that were similarly situated in that way. [00:40:18] Speaker 03: I think that argument that the defendants are making now with respect to this evidence for their Batson claim is that it goes to determining at step three that this was, in fact, a race-based strike. [00:40:36] Speaker 03: And so I think we're getting lost. [00:40:41] Speaker 03: in this discussion because really why I asked you to address the comparator juror analysis and the NAACP notation in the first instance was to try to get your position on whether or not we can find clear error on the part of the district court's decision at step three. [00:41:00] Speaker 02: Okay, the bottom line is that there was not clear error because the district court had before it all of this testimony, including the fact that the prosecutor was asked about the NAACP notation and her response to it. [00:41:14] Speaker 02: And at the end of the day, the court considered the other reasons that the prosecutor offered for why she excused MJ, which were also borne out by the record, the weighing process and the fact that the prosecutor asked for follow up on that issue and that request was denied. [00:41:27] Speaker 02: as well as her reasoning that MJ worked for the Department of Social Services. [00:41:32] Speaker 02: And the court found that all of those reasons were supported by the record and made that ultimate finding that race was not a substantial motivating factor for why she excused MJ. [00:41:42] Speaker 02: So even considering those in the first instance, we have to defer to the district court finding because it was in the best position to evaluate the prosecutor's credibility. [00:41:50] Speaker 02: That's the same reason why this case can't be decided by this court because that critical information is missing This court did not have the benefit of seeing the prosecutor testify at the evidentiary hearing and the Supreme Court and you have any cases that you can cite to us for I think your position that we would remand this if we were to find there was clear error as opposed to deciding it here in the first instance [00:42:15] Speaker 02: I have two cases that are helpful in this point, Your Honor. [00:42:17] Speaker 02: The first is Snyder, where the Supreme Court said that perhaps the most important evidence at step three is the prosecutor's demeanor while offering its reasons for its strikes and its credibility finding. [00:42:29] Speaker 02: And again, the district court was the only court to get the benefit to evaluate the prosecutor's demeanor. [00:42:35] Speaker 02: The second case is this court's holding in Finn, where [00:42:38] Speaker 02: The court reversed the district court after the district court did not adopt the magistrate judge's findings. [00:42:45] Speaker 02: And that was because the district court did not have the benefit of seeing the prosecutor testify. [00:42:50] Speaker 02: So this court said that it was improper for the district court to overrule the credibility findings of the magistrate who had heard that testimony and made that credibility finding. [00:43:01] Speaker 04: And then what did we do? [00:43:02] Speaker 04: We sent it back. [00:43:04] Speaker 02: If this court finds that because it is not explicitly clear that they considered the full quotation in the reference to race, then yes, it would be sent back for the district court to make along with its other credibility findings that it had the benefit of hearing by the prosecutor. [00:43:20] Speaker 00: Have you, are you familiar? [00:43:23] Speaker 00: Council, could I interject a question, please? [00:43:26] Speaker 00: So council, in other, some areas of the law, for example, when we, [00:43:34] Speaker 00: review an agency, the administrative agency decision. [00:43:40] Speaker 00: There's a presumption of regularity. [00:43:44] Speaker 00: I don't know if that would apply in a context like this. [00:43:50] Speaker 00: But when the district court says, I've considered all the evidence, [00:43:58] Speaker 00: then should we assume or presume that the district court did consider all the evidence? [00:44:09] Speaker 02: I think we should presume that, Your Honor, because the district court made a very detailed order. [00:44:14] Speaker 02: Do you have authority for Judge Gould's question? [00:44:17] Speaker 02: Oh, I'm sorry if I misunderstood. [00:44:18] Speaker 04: No, I'm just wondering. [00:44:20] Speaker 04: You've answered his question. [00:44:21] Speaker 04: I'm just asking if you have authority for that. [00:44:24] Speaker 04: Does the presumption of regularity apply? [00:44:26] Speaker 02: I think the presumption is that we can't assume clear error, and I apologize, I don't have a case to cite, but I don't think we can presume clear error here from the district court's omission of that second half of that quote, especially when the court did quote another portion with a reference to race and then ultimately made the important step three finding, which is that race was not a substantial motivating factor. [00:44:52] Speaker 04: Are you familiar with our decision in Cook? [00:44:54] Speaker 04: I am. [00:44:56] Speaker 04: And what did we do in that case, counsel, when we said we were concerned about the prosecutor's expressed reference to race, and we discussed whether that was persuasive or pretextual? [00:45:06] Speaker 04: How did we handle that there? [00:45:09] Speaker 04: Which way does that case cut? [00:45:11] Speaker 02: I think that Cook actually weighs in our favor, because I think that where the prosecutor made a reference to race, [00:45:22] Speaker 02: This court said that there was no other similarly situated juror, no other juror had left that question asking about racial background blank. [00:45:31] Speaker 02: And so the prosecutor's testimony about why they excused that juror, this court had to defer to the district court's finding as to the prosecutor's credibility. [00:45:42] Speaker 02: And so I think that the same thing can be said here, because there is no other similarly situated juror to MJ. [00:45:49] Speaker 02: And then also we defer to the district court's finding that credibility findings in light of everything else that it considered that race was not a substantial motivating factor. [00:45:58] Speaker 03: Is Cook a step two analysis or step three analysis? [00:46:07] Speaker 03: I believe it was a step three analysis. [00:46:11] Speaker 03: I think it's a step two. [00:46:12] Speaker 03: I think that case talked about what was required for purposes [00:46:17] Speaker 03: of moving to step three. [00:46:19] Speaker 03: So even if one of the proffered reasons is not race neutral, sort of the discussion is then, you know, there's the burden to produce race neutral reasons and it talks about what the government has to do. [00:46:34] Speaker 03: And if there's even one non-race neutral reason, then you move to step three. [00:46:42] Speaker 02: And that's possible your honor, and I'm sorry I may have misunderstood cook however I think that that's always in our favor because here the district court did proceed to step three and it made that ultimate finding that race was not a substantial motivating factor and There were other things supporting the courts finding in that way for instance the fact that the ultimate in panel jury was composed of three black jurors and one black alternate [00:47:07] Speaker 02: So the ultimate jury was 25% black, which far exceeded the rate at which potential black jurors were appearing in the Pomona jury poll, which the trial court noted was only 7%. [00:47:18] Speaker 04: Counsel, you're using the phrase a substantial motivating factor. [00:47:23] Speaker 04: And I think Flowers and Supreme Court authority talks about whether the prosecutor was substantially motivated by race. [00:47:32] Speaker 04: There's a difference about whether there was a substantial motivating factor, maybe perhaps one that was and one that wasn't. [00:47:40] Speaker 04: But I think the all-in, I'm concerned about the Supreme Court articulating this as an all-in, was the prosecutor substantially motivated by race. [00:47:49] Speaker 04: That's different than saying was this race-based reason a substantial motivating factor. [00:47:56] Speaker 02: Yes. [00:47:56] Speaker 02: And I think that the district court applied the correct standard here when it found that it was not [00:48:02] Speaker 02: the substantial motivating factor. [00:48:04] Speaker 02: And it considered also the fact that the prosecutor, even after making this reference to race in regard to MJ, was then asked and testified that race was not a reason for why she excused any of the four challenged jurors. [00:48:17] Speaker 04: But the district court, if you agree that the question is, and I think the most recent articulation from the Supreme Court is whether the prosecutor was substantially motivated by race. [00:48:26] Speaker 04: That's sort of all in. [00:48:27] Speaker 04: So you have some, let's just posit that, that there are some [00:48:30] Speaker 04: reasons that are race-based and some that are not. [00:48:33] Speaker 04: The trial court is charged with deciding whether the prosecutor was substantially motivated by race. [00:48:38] Speaker 04: If that's your view and we have race-based statements from the prosecutor that the district court hasn't grappled with, we keep using that phrase, hasn't grappled with, your argument in favor of affirmance across the board here is troubling because it sounds like that evidence would never be considered. [00:49:00] Speaker 04: Well, we can't tell that it was considered. [00:49:04] Speaker 02: Yes, and I think that it is reasonable to presume that the district court considered everything that it had before it, including this statement about race. [00:49:11] Speaker 04: OK, because you're looking at page 16. [00:49:15] Speaker 04: At 16 of the district court's order, he said, he attributes to the prosecutor, our case was three young men using a firearm in the murder [00:49:24] Speaker 04: that was the subject of the case, and there were three relatively young African-American males. [00:49:29] Speaker 04: Correct. [00:49:29] Speaker 04: This is the district court talking, attributing this statement to the prosecutor where she calls out the race of the defendants. [00:49:37] Speaker 02: Correct, yes. [00:49:39] Speaker 02: So I think that the district court, including that portion of the prosecutor's testimony, and then going on to find that it found her to be credible and genuine in that the reasons she articulated were her actual reasons. [00:49:50] Speaker 02: and that race was not the substantial motivating factor in why she excused MJ. [00:49:56] Speaker 02: That's why there is not clear error here, because the district court's findings were supported by the record, and it did consider including that quotation by the prosecutor. [00:50:05] Speaker 04: We take the charge of Batson very, very seriously. [00:50:08] Speaker 04: And implicit bias is really tough to ferret out. [00:50:11] Speaker 04: And I'm very mindful of Judge Gould's questions about how many decades that have gone by. [00:50:18] Speaker 04: in this case. [00:50:20] Speaker 04: But because we are so exquisitely sensitive to this subject, it is concerning that there's a delta between the declaration and the testimony and concerning that although this wasn't argued in the district court, so lest anyone understand that I'm finding fault with the district court, I don't think this argument was presented to him. [00:50:42] Speaker 04: I find that troubling, and I want to hear what the state has to say about why this doesn't need to be directly addressed by the person who saw the prosecutor's testimony. [00:50:53] Speaker 02: I understand that concern, Your Honor. [00:50:54] Speaker 02: And again, I think that if the court were to find that it's ambiguous whether the court considered this portion of the prosecutor's testimony, the remedy would be to remand to the district court. [00:51:08] Speaker 02: But not for a new evidentiary hearing. [00:51:09] Speaker 02: No, Your Honor, just to consider explicitly consider this portion that the court feels is not addressed in the opinion and then to make its credibility findings because again it was the only court to have seen the prosecutor testify. [00:51:21] Speaker 02: So it would be improper to reverse the district court's credibility findings on a cold record without having seen for this court to do that on a cold record. [00:51:31] Speaker 04: Well, again, credibility finding is a very tough thing to reverse. [00:51:37] Speaker 04: But it's not even that when we're talking about bats. [00:51:39] Speaker 04: And people can honestly testify that they think their motives were X. And their motives may have been, again, that's what implicit bias is all about. [00:51:47] Speaker 04: So it's not even just a credibility determination. [00:51:49] Speaker 04: But I think I cut you off. [00:51:52] Speaker 03: I'm confused because I don't see a mechanism to send this back other than, I mean, the question about whether we should remand or decide the ultimate Batson claim ourselves assumes that we're finding clear error. [00:52:09] Speaker 03: So I fear that what you've been arguing this whole time is this insistence that there was no clear error and therefore all of the information that the district court needed was both before and considered [00:52:22] Speaker 03: which I think then undercuts your argument that it should be remanded. [00:52:25] Speaker 03: So I really want you to sort of parse those things out and assume that we find clear error. [00:52:31] Speaker 03: And then to tell me, what would you have us do if we determine that we do, in fact, reverse on clear error grounds? [00:52:43] Speaker 03: What should we do? [00:52:44] Speaker 03: And what's your best authority for that? [00:52:49] Speaker 02: I do want to make clear that I don't think that there was clear error here. [00:52:52] Speaker 03: I understand that. [00:52:54] Speaker 03: I'm very, very clear on that. [00:52:55] Speaker 03: And I'm asking you to assume that we believe there was. [00:53:00] Speaker 02: Yes, Your Honor. [00:53:01] Speaker 02: If this court were to find clear error, I think that it does need to be, if this court were to find clear error in the sense that it's unclear whether the district court considered that second half of the prosecutor's statement. [00:53:14] Speaker 03: It's not that we don't know whether he did or not, but he doesn't grapple with it. [00:53:17] Speaker 03: So it's not [00:53:19] Speaker 03: It's not a question of a technical make clear that you did. [00:53:25] Speaker 03: It's that there are explicit race-based statements made by the prosecutor. [00:53:31] Speaker 03: By not grappling with that, that is the clear error. [00:53:35] Speaker 03: So now the question is, what happens if that determination were to be made by this court? [00:53:43] Speaker 02: I think that it would have to be sent back. [00:53:46] Speaker 02: Because again, the district court was the only one to [00:53:49] Speaker 02: to be able to see the prosecutor testify. [00:53:52] Speaker 02: And that is the most important evidence at step three, is to determine whether the statements given were pretextual or whether race was the substantial motivating factor and the district court was the only court to have the benefit of that information. [00:54:07] Speaker 02: And because of that, this court can't make the finding on its own because it didn't have the benefit of seeing the prosecutor testify. [00:54:16] Speaker 02: But I do want to address that. [00:54:19] Speaker 02: I think the district court did grapple with it because it did consider everything, the whole totality of the circumstances, including the prosecutor's statement and the other reasons proffered. [00:54:29] Speaker 02: There were also other reasons proffered borne out by the record. [00:54:32] Speaker 02: And that also lends support to its credibility finding. [00:54:36] Speaker 02: that even though there was this reference to race, all of her reasons were supported by the record. [00:54:41] Speaker 02: Her contemporaneous evidence, which also this court has said, is evidence of what was actually going through the prosecutor's mind as she was making her strikes. [00:54:49] Speaker 02: And so the handwritten notes she made at the time of jury selection [00:54:54] Speaker 02: in addition to her testimony and the fact that the district court found her to be quote Entirely credible and she testified that she didn't excuse any of these jurors based on race the district court I think did grapple with all of that and all the information it had before it and made the ultimate finding that race was not ace It was not the substantial motivating factor for why she excused MJ And I think that is true for all of the four jurors as well as to as HF and RL Those jurors were also [00:55:23] Speaker 02: struck for non-based, non-race-based reasons. [00:55:27] Speaker 02: Their reasons were supported by the prosecutor's reasons were supported by the record and her contemporaneous evidence. [00:55:32] Speaker 02: And that also lends support to the district court's overall finding that the prosecutor was credible because all of the reasons she offered for all of the four. [00:55:40] Speaker 03: Let me ask you about this since you're, I know you were short on time, but since we're moving to these, the other jurors, and this actually still relates to juror J, but [00:55:51] Speaker 03: On the issue of sort of the part that the district court did focus on or the explanation that the prosecutor, prosecutor Decker gave in her declaration, I'm curious to know how you square the comparator juror, the juror analysis with respect to juror Sally Dee. [00:56:11] Speaker 03: So this was a juror who had, who also had family members who had been charged with crimes. [00:56:17] Speaker 03: In fact, I think her son might have been charged with the precise crime that the defendant here was. [00:56:22] Speaker 03: and had family members in jail. [00:56:24] Speaker 03: So how do you address the discrepancy in striking juror J and not juror Sally D, who had essentially, if you strip out the African-American son's comment, these two jurors are exactly the same. [00:56:44] Speaker 03: And I think arguably, Sally D is worse. [00:56:47] Speaker 02: So Sally D is not similarly situated [00:56:50] Speaker 02: to MJ and the prosecutor actually explained why and the district court found that her reasons were persuasively articulated as to the difference between MJ and SD and the prosecutor said that the mother-son relationship was different and she actually drew on her own experience and she said I have two sons and if one of my sons was charged with a violent crime I would be much more personally involved than if it was some other family member and for SD that was her brother her nephews [00:57:17] Speaker 02: And she also had a son that was in the county jail. [00:57:21] Speaker 02: She had a son that she had visited for a traffic violation. [00:57:24] Speaker 02: But a traffic violation is not the same as what MJ's son had been charged with and what the defendants were charged with here. [00:57:30] Speaker 02: And the district court found it is entirely logical for a prosecutor to be more concerned about sympathy towards young defendants in a case involving gun violence if the potential jurors own relatively young child spend time in jail for gun related criminal conduct. [00:57:45] Speaker 02: So that's why SD is not similarly situated to MJ, because the crimes were different, the relationship was different, and the prosecutor articulated both of those things as why she kept SD and did not keep MJ. [00:57:58] Speaker 02: So I see my time is concluded. [00:57:59] Speaker 02: Thank you. [00:58:14] Speaker 01: Thank you, Your Honors. [00:58:15] Speaker 01: And first, I do want to apologize. [00:58:17] Speaker 01: I do not have a case at the ready that discusses the balance as to whether, with this type of fact pattern, we would be happy to brief that to the court, if the court would like that in the form of a 28-J letter. [00:58:28] Speaker 01: But I would just like to pick up on what I think the last discussion was just referencing, which is that this is also a totality of the circumstances analysis. [00:58:40] Speaker 01: And so although there is [00:58:42] Speaker 01: This issue which we do see that it was not artfully argued at the time that there was a specifically race-based reason given For the strike of MJ that is not the end of the Batson analysis in this case the bats in question in this case involves not just your MJ but for separate drawer for separate black female jurors who are removed from the veneer and there is comparative juror analysis that was advanced at the district court and [00:59:08] Speaker 01: that has been discussed in our brief that raises inferences certainly of discrimination and that in the context of looking at the strike of MJ also would provide substantial support for the conclusion that her strike also was substantially motivated by race. [00:59:26] Speaker 01: And I think Your Honor was just referencing recent Supreme Court cases. [00:59:31] Speaker 01: I think [00:59:31] Speaker 01: Flowers versus Mississippi also stands for the proposition that when you are doing a Batson analysis, you have to also, in trying to ferret out the step three question, you do look at the totality of the circumstances. [00:59:43] Speaker 01: So you look at the other evidence that we have before us in determining as to each individual strike as well, because it tells you something more about what is going on in this case. [00:59:55] Speaker 01: And I think when you look at the totality of the circumstances, my friend on the other side said, [01:00:01] Speaker 01: brought up credibility of the prosecutor several times. [01:00:04] Speaker 01: There are some things I think that also cut the other way that this court needs to consider. [01:00:08] Speaker 01: For example, at the evidentiary hearing, the prosecutor stated that she hadn't thought about the fact that this case depended on the testimony of a white woman against her estranged black husband. [01:00:20] Speaker 01: Now, this was the primary witness in this case. [01:00:22] Speaker 01: This was the person who made the case for the state. [01:00:25] Speaker 01: So to think that the prosecutor at the time of jury selection, when very early on in voir dire, she used four out of her first 10 peremptories to strike one after the other black females from the jury pool was not cognizant of what was going on in this case, as far as what the state's evidence would be, I think also cuts against the credibility of the prosecutor in this regard. [01:00:50] Speaker 04: You would have us find that the district court clearly erred by finding the prosecutor credible? [01:00:56] Speaker 01: I would simply say, Your Honor, there are many bases on which to find that the district court clearly erred. [01:01:01] Speaker 01: And one of them would also be in failing to look to the totality of the circumstances and really engage with what was going on in this case and what that likely tells us about the reasons behind these strikes. [01:01:14] Speaker 01: And what it tells us, I believe, Your Honors, is that there was substantial evidence that these strikes were motivated by impermissible group bias. [01:01:23] Speaker 04: Judge Gould, do you have any additional questions? [01:01:28] Speaker 04: No, thank you. [01:01:29] Speaker 04: All right. [01:01:30] Speaker 04: What we're going to do is take a 10-minute break, and then we'll come back and hear argument in the other case. [01:01:34] Speaker 04: Thank you. [01:01:35] Speaker 04: We'll stand in recess for a moment, please.