[00:00:00] Speaker 01:
So please look forward.

[00:00:01] Speaker 01:
My name is Jerry Newton.

[00:00:02] Speaker 01:
I represent the petitioner, Delano Cleveland, along with my co-counsel, Norm James.

[00:00:10] Speaker 01:
I would like to approach this Batson issue more globally, if that's okay.

[00:00:15] Speaker 01:
Because as we know, of the four jurors, if any one of them was struck, furrational animus, that's basically the end of the case.

[00:00:26] Speaker 01:
And in doing that, I'd like to go back to step two and talk about reliability.

[00:00:31] Speaker 01:
Because since this is a death case, the enhanced reliability that the court talked about in Zant applies to what's going on in this case.

[00:00:43] Speaker 01:
And as a practical matter, this was not a reliable step two analysis.

[00:00:50] Speaker 01:
Why?

[00:00:51] Speaker 01:
Well, 27 years had gone by, and if you ask yourself,

[00:00:55] Speaker 01:
White had 27 years gone by, the only answer you can come up with is this prosecutor wouldn't put on the record her reasons for consecutive times when a Batson strike was challenged by the defense.

[00:01:11] Speaker 04:
Well, I agree with you that perhaps the failure to provide an explanation when given the opportunity at enduring voir dire

[00:01:19] Speaker 04:
might be a consideration at step three for whether or not it was a substantial motivating factor.

[00:01:26] Speaker 04:
But I guess I don't really understand your emphasis on the argument that you're making right now, because when there was an evidentiary hearing granted and the testimony of this particular prosecutor was allowed, you ended up with what I think is a fairly

[00:01:44] Speaker 04:
blatant statement explicitly referencing race that runs afoul of Batson.

[00:01:50] Speaker 01:
I don't disagree, but what I don't want to do is ignore the fact that three other black jurors were struck and the reasons that were developed came out of an unreliable proceeding.

[00:02:03] Speaker 01:
It's unreliable for any of us to expect that we'll have a specific recollection

[00:02:09] Speaker 05:
Well, counsel, I disagree.

[00:02:11] Speaker 05:
And I'm not sure this is your strongest argument.

[00:02:13] Speaker 05:
You can use your time the way you want.

[00:02:15] Speaker 05:
But having looked at a lot of these, well, of course, you have too.

[00:02:18] Speaker 05:
A lot of Batson records, this is an unusually rich record.

[00:02:22] Speaker 05:
This is not a prosecutor who comes back after decades and says, I don't remember these people.

[00:02:27] Speaker 05:
And I'm looking at the record and I'm trying to recreate.

[00:02:30] Speaker 05:
That's not what happened here.

[00:02:31] Speaker 01:
No.

[00:02:32] Speaker 01:
What I'm suggesting is what happened here, she didn't tell the truth.

[00:02:36] Speaker 05:
I understand the argument.

[00:02:38] Speaker 04:
And again, I think that that goes to the step three analysis.

[00:02:40] Speaker 04:
So all of these things, the fact that, you know, she has such a clear memory of these particular, you know, jurors that she struck, but not necessarily the people who served on the jury that convicted your clients.

[00:02:52] Speaker 04:
You know, those things are all things that ought to be considered at step three, but it really doesn't, I'm not, I agree with Judge Christen that I'm not sure, and having read everything, it's not that we're discounting it or ignoring it, we've considered it, but I'm not sure that this is really

[00:03:07] Speaker 04:
your strongest argument for this oral argument?

[00:03:12] Speaker 01:
Well, let me address what I think was a consideration from Judge Gould during the discussion of should we send this back to the district court.

[00:03:27] Speaker 01:
My client's been in prison for 34 years and he got an evidentiary hearing in the district court below after some

[00:03:37] Speaker 01:
27 years.

[00:03:39] Speaker 01:
And it required, amongst other things, for his counsel to file a petition for writ of mandamus with the Ninth Circuit so that we could get a hearing.

[00:03:49] Speaker 01:
Now, if this case goes back to Judge Wilson and he had, he presided at the evidentiary hearing, he was there, he heard the testimony, he heard my questions to the prosecutor,

[00:04:05] Speaker 01:
And knowing Judge Wilson as I do, I don't think that he missed something.

[00:04:10] Speaker 01:
I think he carefully considered everything.

[00:04:13] Speaker 01:
And his decision, if it was wrong, it's just simply wrong.

[00:04:18] Speaker 04:
But on the remand... Well, it needs to be more than simply wrong.

[00:04:23] Speaker 04:
It needs to be clear error, right?

[00:04:25] Speaker 01:
It has to be illogical, implausible, and not supported by the record.

[00:04:33] Speaker 01:
clear error.

[00:04:39] Speaker 05:
But counsel, you just told me you think that Judge Wilson did consider everything.

[00:04:45] Speaker 01:
I think he considered everything.

[00:04:48] Speaker 01:
I've known Judge Wilson for a long time.

[00:04:50] Speaker 01:
That's a personal opinion.

[00:04:52] Speaker 01:
But I think he considered everything.

[00:04:55] Speaker 01:
It was such a fight to get to an evidentiary hearing, and it took so long, and it took

[00:05:03] Speaker 04:
another Another two or three years after the evidentiary hearing before we had an opinion I'm sure he so I think I understand your argument, and I think the council for in the prior case also argued about the mounting prejudice of a remand, but let me just pause it for you for a moment this notion that if if everything was considered I think that

[00:05:33] Speaker 04:
to the extent our view is that the most significant harmful testimony wasn't grappled with.

[00:05:42] Speaker 04:
And your options are for us to say everything was considered.

[00:05:46] Speaker 04:
He did, in fact, grapple with it.

[00:05:48] Speaker 04:
He might not have talked about it, but I believe he really considered it.

[00:05:51] Speaker 04:
You know, that to me seems maybe like the position you don't want to be taking, given the fact that the alternative is

[00:06:00] Speaker 04:
that he needs to do so, and that would be something that he can do on remand.

[00:06:04] Speaker 04:
And I think that's why we just keep going back to this question of whether we address it or we remand it.

[00:06:10] Speaker 01:
I think he considered it.

[00:06:12] Speaker 05:
Well, if he considered it, and we know that he made the ultimate finding that the prosecutor was not substantially motivated by race, then what's your argument, what's your path on behalf of your client today?

[00:06:24] Speaker 05:
What's your argument today?

[00:06:25] Speaker 01:
To convince you that clear error occurred.

[00:06:28] Speaker 05:
OK, go right ahead.

[00:06:30] Speaker 01:
Because it's illogical, it's not something you can draw from this record, and it's improbable.

[00:06:35] Speaker 05:
So those are the conclusions.

[00:06:36] Speaker 05:
Tell me why, please.

[00:06:38] Speaker 01:
Because race was clearly considered with respect to Mary J. It has to be a substantial motivating factor.

[00:06:49] Speaker 05:
The prosecutor has to have been substantially motivated by race.

[00:06:52] Speaker 05:
That's a little bit different.

[00:06:54] Speaker 01:
She had to have been.

[00:06:55] Speaker 05:
Hold on, hold on.

[00:06:56] Speaker 05:
So you've been here in the last hour when we've been engaging with co-councils, co-defendants council.

[00:07:07] Speaker 05:
The district court cited other reasons.

[00:07:10] Speaker 05:
The prosecutor cited other reasons.

[00:07:12] Speaker 05:
And your position is those can't have been correct.

[00:07:15] Speaker 05:
Those can't have been the actual reasons.

[00:07:18] Speaker 05:
We need to know why.

[00:07:20] Speaker 01:
Well, I think he didn't point to the statement made by Mary Jay because it wasn't consistent with how he intended the case to come out.

[00:07:28] Speaker 05:
So you think your argument is that he considered everything, the district court considered everything, and omitted mention of that?

[00:07:35] Speaker 01:
Yes.

[00:07:36] Speaker 01:
and that he clearly erred in reaching his ultimate conclusion because his race was a substantial factor with respect to Mary J. And the fact that it doesn't appear in his decision

[00:07:50] Speaker 01:
doesn't mean he didn't consider it.

[00:07:53] Speaker 01:
It means that when he wrote his decision, he ignored it.

[00:07:56] Speaker 05:
Well, you've got a bigger problem, because it's not that it doesn't appear in his decision.

[00:08:00] Speaker 05:
Page 16 does mention race.

[00:08:03] Speaker 05:
That is where the district court does mention race.

[00:08:09] Speaker 01:
I don't have page 16 in front of me, Your Honor.

[00:08:14] Speaker 05:
Well, I can read it to you, if that's helpful.

[00:08:23] Speaker 05:
He says at page 16, the prosecutor, this is the order, says the prosecutor testified that because Gerge's son had been involved in a firearm-related criminal activity and was relatively young, the fact that, quote, and so this is the district court quoting the prosecutor, quote, 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.

[00:08:49] Speaker 05:
So he, the district court, cites this

[00:08:52] Speaker 05:
a statement that the prosecutor made that is a race based statement.

[00:08:58] Speaker 01:
And he didn't include it.

[00:09:01] Speaker 05:
He didn't include the more overtly racial statement where he where she's expressly I think it's I'm paraphrasing calls into question that she doubts

[00:09:11] Speaker 05:
or had doubt about whether the juror would be able to apply the law without being unduly sympathetic because she was also the mother of another young African-American male.

[00:09:24] Speaker 05:
That sentence, excuse me, Judge, that's what's omitted.

[00:09:27] Speaker 05:
But it's not that there's no mention of race, hence our curiosity about your assertion that you think the judge did consider that statement.

[00:09:36] Speaker 01:
I think he fully considered it.

[00:09:38] Speaker 01:
He even mentioned that on page 16, would corroborate that.

[00:09:43] Speaker 04:
And then your point is that he omitted the language that specifically draws a contrast to Batson, which is that... I think with respect to juror MJ, you know,

[00:09:58] Speaker 01:
He reached the wrong conclusion based on what was in the record and is finding that race wasn't considered as both improbable and implausible.

[00:10:09] Speaker 05:
What's the countervailing evidence in the record that should have an interview caused the district court to come out the other way to decide that the prosecutor was substantially motivated by race?

[00:10:20] Speaker 01:
Well, I think

[00:10:26] Speaker 01:
Going back to the hearing itself, first off, I think that the prosecutor was, first off, she was a career prosecutor.

[00:10:34] Speaker 01:
The last thing you want to be accused of as a prosecutor is that you've been motivated by race, certainly in the selection of a jury.

[00:10:42] Speaker 01:
So I think she had the motive to consider herself and the position she was in.

[00:10:48] Speaker 01:
She then wrote this declaration which tracked specifically

[00:10:55] Speaker 01:
uh... with respect to all four jurors one of the reasons that was in the california supreme court decision when i had her that she read the california supreme court right but when i had her on the witness stand she said oh i must have read that case yesterday on the plane flying out to los angeles for the hearing that's not true and she said whoops i made a mistake sorry about that but i think she was much more motivated for a conclusion in this thing than just she

[00:11:24] Speaker 01:
Oops, made a mistake.

[00:11:27] Speaker 01:
Then when you take and put that together... But, counsel, you pointed that out in the evidentiary hearing.

[00:11:32] Speaker 05:
The district court heard that.

[00:11:33] Speaker 01:
Yes.

[00:11:35] Speaker 01:
I pointed it out, if you read carefully, I got her first to say that she read it.

[00:11:41] Speaker 05:
Yes.

[00:11:42] Speaker 01:
And then, obviously, I'm going to try to impeach her declaration.

[00:11:45] Speaker 05:
And you did on the transcript.

[00:11:47] Speaker 05:
I read it.

[00:11:48] Speaker 01:
Right.

[00:11:48] Speaker 01:
And the fact that that was in the record is something, as Judge Desay says, you can also consider and put it in the great basket of information when you come to the conclusion whether or not she was

[00:12:04] Speaker 01:
substantially motivated by race.

[00:12:06] Speaker 01:
Now, the quantitative and qualitative comparison with jury questionnaires, she said that she struck juror S, since we're just using initials, because she was concerned she couldn't grasp the death penalty.

[00:12:32] Speaker 01:
The same objections and concerns about the death penalty were made by white jurors, Majorski, Gross, McMillan, and Erismani.

[00:12:41] Speaker 01:
With respect to juror L, she said, I was concerned because she didn't explain what heinous crimes are, albeit she didn't ask a follow-up question or submit a question to that.

[00:12:57] Speaker 01:
And then she said, well, she's 22 years old.

[00:13:00] Speaker 01:
Your Honor would know that.

[00:13:02] Speaker 01:
the idea that 22, you don't have life experiences, didn't go over in the Shirley decision.

[00:13:12] Speaker 01:
And that was the same language she used here.

[00:13:17] Speaker 01:
With respect to juror F, the last juror, the Supreme Court didn't really identify a specific reason that she could grasp a hold of

[00:13:29] Speaker 01:
and use as a reason why she didn't, as a race neutral reason why she didn't want that person in the jury.

[00:13:36] Speaker 01:
The Supreme Court simply mentioned, well, juror F was a seamer and had a husband who was involved in some kind of startup of a group home.

[00:13:51] Speaker 01:
Well, you know, I don't know if that is a neutral reason when you strike

[00:14:00] Speaker 01:
or the fourth time in this kind of a criminal case, on your fourth strike, that's your reason and justification for striking a black juror when you have two black defendants.

[00:14:12] Speaker 05:
Is that the same juror that she said she's got these degrees, this education, and she's not using it, doesn't seem to be using it?

[00:14:19] Speaker 05:
Wanted to ask more questions about her occupation.

[00:14:21] Speaker 05:
The trial court didn't want to allow her to ask those additional questions.

[00:14:25] Speaker 05:
And I think she expressed confusion.

[00:14:27] Speaker 05:
She had served on a jury but wasn't sure if it was state or federal court and didn't know if they'd reached a verdict.

[00:14:32] Speaker 05:
So I think the prosecutor was concerned about that juror's ability to follow the proceedings and the nuances, particularly in the penalty phase of a death penalty case.

[00:14:42] Speaker 01:
I agree that there was some concern, but I think she was more concerned about having black jurors on that panel.

[00:14:49] Speaker 01:
This whole case comes down to,

[00:14:54] Speaker 01:
I've both prosecuted in federal court and defended in federal court.

[00:14:59] Speaker 01:
And there is no objection to the use of a peremptory strike unless you get into a Batson situation.

[00:15:06] Speaker 01:
And she had to be on notice from the very first.

[00:15:10] Speaker 01:
The first time she struck Jur S, the hue and cry went out.

[00:15:17] Speaker 01:
And she said, well, the judge said, you know, you don't have a prima facie case.

[00:15:24] Speaker 01:
And I'm not sure why he said that because there's reference to a meeting in chambers the day before with the court and all counsel.

[00:15:31] Speaker 01:
We have no record what was said then.

[00:15:34] Speaker 01:
But he said, I'll give you an opportunity to put your reasons for striking this juror on the record four times.

[00:15:42] Speaker 01:
And she testified, it's the policy of our office not to put our reasons on the record if there's been no finding of

[00:15:53] Speaker 01:
a prima facie case.

[00:15:55] Speaker 05:
Was that the policy?

[00:15:57] Speaker 01:
She said it was.

[00:15:57] Speaker 05:
I know, but is there any indication that it wasn't the policy?

[00:16:00] Speaker 01:
You know, Your Honor, I've been a federal prosecutor.

[00:16:04] Speaker 01:
I've never been a state prosecutor.

[00:16:06] Speaker 01:
It certainly wasn't in our prosecutorial office.

[00:16:12] Speaker 05:
Right, but on this part of the argument, the briefing, I was a little confused because she was given the opportunity four times.

[00:16:19] Speaker 05:
Four times she said no, thank you, basically, and declined.

[00:16:22] Speaker 05:
I don't know that there was anything that would have made it incumbent upon her to make the record.

[00:16:28] Speaker 05:
And when she said it was the office's policy, I was sort of waiting to see whether or not that was going to be contradicted, and maybe it wasn't really the office's policy.

[00:16:36] Speaker 04:
Did she actually testify that it was the office's policy at the hearing?

[00:16:39] Speaker 04:
Because I'm looking at the declaration, and she just says that since the trial court never found a prima facie case of exclusion based on racist to each of the four challengers, I declined to state my reasons for excusing each

[00:16:51] Speaker 01:
She used office policy, and it's probably from her testimony at the evidentiary hearing.

[00:16:56] Speaker 05:
Right.

[00:16:57] Speaker 05:
Hence my question, was there some indication that it wasn't really the office policy?

[00:17:00] Speaker 05:
I don't know.

[00:17:00] Speaker 05:
And we're not sure about that?

[00:17:02] Speaker 01:
That's speculation.

[00:17:03] Speaker 05:
Yeah, but I think we can agree that she had the opportunity four times and didn't take it.

[00:17:09] Speaker 01:
And you have to ask yourself, what kind of a prosecutor getting into this kind of a situation

[00:17:14] Speaker 01:
would say, I'm not going to put my reasons on the record.

[00:17:17] Speaker 05:
Sir, I don't know that you do.

[00:17:18] Speaker 05:
If that was the office policy, hence my question, if that was the office policy, perhaps the conclusion is that she's following marching orders.

[00:17:25] Speaker 05:
I don't know.

[00:17:25] Speaker 01:
But we don't have that here.

[00:17:27] Speaker 01:
Yeah.

[00:17:27] Speaker 01:
Even if she is following marching orders, she said she was well aware of the Batson decision.

[00:17:32] Speaker 04:
Can I switch gears here for just a moment and ask you about sort of the intersectionality between the

[00:17:41] Speaker 04:
failure of the defense counsel to make arguments at the district court about some of these comparative juror analysis claims that would go to the step three determination.

[00:17:52] Speaker 04:
So we're talking right now about, hey, these are all the things that had somebody actually considered they would have, it's implausible and reasonable, clearly erroneous to have reached this particular conclusion.

[00:18:04] Speaker 04:
But there are a number of these arguments that weren't presented to the district court, even though the Batson claim was

[00:18:10] Speaker 04:
clearly preserved.

[00:18:11] Speaker 04:
And I want to ask you specifically about the NAACP notation on the juror questionnaire.

[00:18:18] Speaker 04:
I'm looking at other juror questionnaires right now, for example, at 3ER424.

[00:18:27] Speaker 04:
This is a juror questionnaire for a different juror that lists Elks Lodge and some other

[00:18:38] Speaker 04:
affiliations, there's no notation here.

[00:18:40] Speaker 04:
But without that presentation in front of the district court, without that argument, without that comparative juror analysis, how do we know that the district court really had the opportunity to consider some of this other evidence that would allow it to determine at step three that this was substantially motivated by race?

[00:19:05] Speaker 01:
During the evidentiary hearing, I had

[00:19:08] Speaker 01:
the jury questionnaires, and I did go through my cross-examination of her pointing out that when you say that somebody is a teacher, and I don't want teachers on my jury, that there were other teachers.

[00:19:27] Speaker 01:
But with respect to that specific

[00:19:30] Speaker 04:
note I I don't recall that that that came up but and this is another example of what I would consider to be a pretty striking uh... example of of noting something that is that is clearly race-based uh... and in comparison to other jurors who had indicated affiliation with organizations where there were no notations that seems to be an argument that would be worth making I would agree with you entirely but the district court's job is not

[00:19:59] Speaker 05:
He's not there to make up the arguments.

[00:20:01] Speaker 01:
I agree.

[00:20:02] Speaker 01:
He's there to hear the evidence, form his own conclusions, draw whatever inferences are permissible from the evidence, and then make up his mind.

[00:20:13] Speaker 04:
Why should we now on appeal, we have

[00:20:17] Speaker 04:
the evidence, the record is what it is, and I think the counsel in the last case said, well, now you should just decide this.

[00:20:25] Speaker 04:
And I think the sort of sticky issue in this particular case is that we're not sure that the district court really had the ability to consider all of these arguments and the evidence.

[00:20:38] Speaker 01:
I have to posit the argument, because I was on this case for 20 years in front of this district court judge, that

[00:20:47] Speaker 01:
If he didn't mention it, it doesn't mean he didn't consider it.

[00:20:52] Speaker 01:
I think the opinion was a result-oriented opinion.

[00:21:00] Speaker 05:
Do you want to address any other issues in the case?

[00:21:05] Speaker 01:
Well, just with respect to the comment that Judge Gould made about where does it end if we remand?

[00:21:15] Speaker 01:
I don't know if my client will still be alive if we go back on a remand and then we have a hearing.

[00:21:22] Speaker 01:
It took a lot of effort on our part to get a hearing in the first place and then we come back up here.

[00:21:27] Speaker 01:
I think the evidence is before this court, you can draw and make your own

[00:21:36] Speaker 01:
judgments in terms of the quality of the evidence and you can also find any inferences from the evidence and with respect to Your your your honors comment with respect to NAACP If race wasn't a factor, why the heck was that put on that question?

[00:21:53] Speaker 05:
That's the point there that was discussed and There are other juror questionnaires that make some of those same notations.

[00:22:01] Speaker ?:
I

[00:22:02] Speaker 01:
Well, I think that was the only one that said NAACP.

[00:22:04] Speaker 05:
The only one that we have that said NAACP.

[00:22:08] Speaker 05:
Yes.

[00:22:13] Speaker 05:
So there does seem to be a distinction on my scorecard.

[00:22:16] Speaker 05:
We're not here to look at the evidence and make up arguments that weren't made.

[00:22:20] Speaker 05:
The district court wasn't either.

[00:22:21] Speaker 05:
That's not his job.

[00:22:24] Speaker 05:
And so the jury questionnaires are sort of in one category, as far as I'm concerned.

[00:22:30] Speaker 05:
It's the delta between the declaration and the testimony that was happening right there real time in the district court that seems to me to be different.

[00:22:38] Speaker 01:
Well, and I think, Your Honor, in the prior argument, made the point, which is clear, that when you put together a declaration, you craft it out.

[00:22:53] Speaker 01:
You are very careful.

[00:22:55] Speaker 01:
It's for you.

[00:22:56] Speaker 05:
But I also made the point that it's not even a matter of casting aspersions on someone's veracity.

[00:23:02] Speaker 05:
Batson is all about implicit bias.

[00:23:05] Speaker 05:
Sometimes we're biased and we all have implicit bias.

[00:23:08] Speaker 05:
That's my view of the world.

[00:23:09] Speaker 05:
And the trick is to not pretend otherwise and to try to be very conscious of that.

[00:23:15] Speaker 05:
So it may be that, and we certainly have those cases where a judge finds a prosecutor credible but still says, especially with comparative juror analysis, this doesn't add up basically and it's not persuasive in the long run.

[00:23:29] Speaker 05:
Hence my reaction.

[00:23:32] Speaker 05:
to the argument that this must be outcome-based.

[00:23:35] Speaker 05:
That's really a tough stretch for me, but I am troubled by the record here.

[00:23:41] Speaker 05:
Would you like to save the rest of your time?

[00:23:44] Speaker 01:
Yes, Your Honor.

[00:23:45] Speaker 05:
All right.

[00:23:58] Speaker 03:
Afternoon again, Your Honours.

[00:24:00] Speaker 03:
May it please the Court.

[00:24:02] Speaker 03:
With respect to the state will not reiterate its position, just preserve that we don't think there was clear error here.

[00:24:09] Speaker 03:
However, in response to Council's argument, I agree with the Court that

[00:24:16] Speaker 03:
If indeed the district court did consider everything and perhaps just did not explicitly mention everything in its opinion, then that would weigh in favor of affirming the district court's opinion.

[00:24:28] Speaker 03:
Because then it did grapple with the reference to race that the prosecutor made, along with everything else, the totality of all the other evidence it had before it, and the prosecutor's testimony.

[00:24:42] Speaker 03:
And so if we are to accept counsel's argument that everything was considered, this court should affirm.

[00:24:49] Speaker 03:
In the alternative, in response to this court's questioning, we would maintain that if the court finds that it is not clear from the opinion that it did grapple with that race reference, then it should be remanded.

[00:25:03] Speaker 03:
This court cannot consider it.

[00:25:05] Speaker 04:
I feel like these are slightly inconsistent arguments, and I understand that

[00:25:12] Speaker 04:
the difficulty that you're in, the position that you're in, to sort of make these competing arguments.

[00:25:17] Speaker 04:
But I think there are equally strong arguments for if the district court considered everything and didn't even feel like it was important enough to address the clearly and blatantly race-based testimony, then that rises to the level of clear error.

[00:25:42] Speaker 04:
It's difficult.

[00:25:43] Speaker 04:
And I guess what I'm saying is that I don't think it's so easily one way.

[00:25:49] Speaker 05:
Could I ask you this?

[00:25:50] Speaker 05:
It seems like, I haven't heard anybody suggest that there would be need for any additional or even justification for any additional evidentiary hearing in this case.

[00:25:58] Speaker 05:
And there was a prior occasion, it was a very overworked district court judge who lamented the resources that he needed to do his job, especially tackling a file like this.

[00:26:11] Speaker 05:
But it's also agonizing on the other end to be waiting and waiting for such a decision.

[00:26:15] Speaker 05:
So we're very mindful of all of those factors.

[00:26:20] Speaker 05:
In the past, there was a request for a mandamus, and I think 90 days was the time period that was mentioned in that order.

[00:26:30] Speaker 05:
If this needed to go back, and it was only a matter of

[00:26:38] Speaker 05:
Perhaps briefing, but argument on this other part of the transcript.

[00:26:44] Speaker 05:
Is 90 days a realistic period of time?

[00:26:50] Speaker 03:
I'm not prepared to speak on that.

[00:26:53] Speaker 03:
Okay.

[00:26:54] Speaker 05:
Are there any other points you want to address?

[00:26:56] Speaker 03:
Yes, Your Honor.

[00:26:57] Speaker 03:
I think that it's just worth noting that disagreeing with how the district court weighed the factors, which I

[00:27:04] Speaker 03:
interpreted counsel's argument to be that the district court did consider race but in his belief just came to the incorrect outcome is not the same as showing clear error.

[00:27:14] Speaker 05:
Well that's true but he's also got a comparative juror analysis argument.

[00:27:18] Speaker 05:
In other words it's one thing to say here's the universe of factors and the judge just weighted incorrectly or should have been persuaded.

[00:27:24] Speaker 05:
The judge wasn't persuaded okay and the judge did say that he considered everything we don't know about this one omission.

[00:27:30] Speaker 05:
There's another

[00:27:31] Speaker 05:
place that we mentioned where he did mention race somewhat more bleakly, but it's certainly mentioned.

[00:27:38] Speaker 05:
But they also have a comparative juror analysis.

[00:27:40] Speaker 05:
What's wrong with their comparative juror analysis, and why shouldn't it give us cause for pause?

[00:27:47] Speaker 03:
Yeah, so with respect to the comparative juror analysis, none of the jurors raised for comparative analysis as to AS were actually similarly situated.

[00:27:56] Speaker 03:
because it is a totality of the circumstances.

[00:27:59] Speaker 03:
And the prosecutor said, you know, there's almost always more than one reason for why she excused a juror.

[00:28:03] Speaker 03:
And indeed, she did articulate more than one reason for each juror.

[00:28:07] Speaker 03:
So to cherry pick out, you know, this person was a retired teacher or this person was an instructional aide,

[00:28:12] Speaker 03:
is not a fair comparison of apples to apples, because they also didn't similarly express these same strong aversions.

[00:28:19] Speaker 05:
That's always true with comparative juror analysis.

[00:28:21] Speaker 05:
They never line up exactly.

[00:28:23] Speaker 05:
But I don't think there was a forecaused challenge as to juror J. Is that right?

[00:28:29] Speaker 05:
Not to J. No.

[00:28:30] Speaker 05:
Right.

[00:28:30] Speaker 05:
And I don't think there could have been, because many of the statements this person made are pro-prosecution statements.

[00:28:39] Speaker 05:
She said, I'm for the death penalty.

[00:28:40] Speaker 05:
If the law says death penalty, I'm for it.

[00:28:42] Speaker 05:
Her daughter was a dispatcher at the police department.

[00:28:45] Speaker 05:
She said her son, who'd had a tangle with the law and had spent some time in jail on a gun-related offense, she said the police treated him fairly.

[00:28:53] Speaker 05:
So I can't imagine how they would have had a successful for-cause challenge.

[00:28:57] Speaker 03:
That's correct, Your Honor.

[00:28:59] Speaker 03:
However, in looking at the totality of the record, as to MJ, SD, as I addressed in the previous argument, was not similarly situated.

[00:29:06] Speaker 03:
But also the fact that the prosecutor did ask for follow-up on her additional reason.

[00:29:13] Speaker 03:
that MJ might not understand the weighing process, that it seemed to her that perhaps she thought it was formulaic, and she wanted follow-up on that, and the district court denied that request.

[00:29:23] Speaker 05:
There was going to be a jury instruction later that told jurors how to apply the law.

[00:29:27] Speaker 05:
And this person said, I'm for the law.

[00:29:29] Speaker 05:
I'm going to apply the law.

[00:29:30] Speaker 03:
That's true, Your Honor.

[00:29:31] Speaker 03:
However, when evaluating the prosecutor's credibility at step three, so whether her proffered reasons were her genuine actual reasons, that's why it's important to note that she did in fact ask for follow up on that reason and she wasn't granted that.

[00:29:45] Speaker 03:
So it is possible that had the juror been followed up with and she said, okay, I understand that weighing process.

[00:29:50] Speaker 03:
then maybe we could say that that reason was pretextual if she offered it as a reason for excusing him.

[00:29:55] Speaker 04:
I think the flip side of your argument also true when the prosecutor was asked for her justification for the striking of the three female black jurors and she declined to provide any explanation four times.

[00:30:09] Speaker 04:
Why don't we consider that in the same way that you're describing that we should consider her credibility as pretextual?

[00:30:17] Speaker 03:
So a couple of responses, Your Honor.

[00:30:19] Speaker 03:
The prosecutor did testify that it was DA policy.

[00:30:21] Speaker 03:
That's actually on volume three of the ER, page 244 to 245.

[00:30:27] Speaker 03:
She testified that... Could forgive me for interrupting.

[00:30:28] Speaker 03:
Is there any indication it wasn't policy?

[00:30:30] Speaker 03:
No, Your Honor.

[00:30:31] Speaker 03:
And so that's relevant.

[00:30:33] Speaker 03:
There was nothing to impeach her on that point.

[00:30:35] Speaker 03:
That was her testimony.

[00:30:35] Speaker 04:
Yeah, I'm talking about at the time of one year when she was asked to provide an explanation and declined to do so.

[00:30:43] Speaker 03:
So given that that was her DA policy, and again, the footnote that counsel referenced in Johnson talking about when a prosecutor declines to state its reasons when asked about them, that footnote in Johnson presumes that a prima facie case has been made.

[00:31:00] Speaker 03:
And that didn't happen here.

[00:31:01] Speaker 03:
So we can't draw a negative inference from that because she wasn't required to under Batson.

[00:31:06] Speaker 03:
And she testified it was her DA policy to not state the reasons.

[00:31:11] Speaker 03:
if a step one finding has not been made.

[00:31:13] Speaker 03:
And there was nothing to rebut that or contradict her on that point.

[00:31:17] Speaker 03:
And because the district court, again, observed her demeanor while testifying and found her to be honest and credible, we must defer to that finding.

[00:31:25] Speaker 03:
The district court was in the best position to make it.

[00:31:27] Speaker 05:
Yes, he did find that she's honest and credible.

[00:31:29] Speaker 05:
But as I kept saying, that's not where Batson ends.

[00:31:33] Speaker 05:
It's not just a credibility determination.

[00:31:35] Speaker 05:
It's whether this really makes sense because we're concerned about implicit bias.

[00:31:40] Speaker 05:
And that's the whole framework.

[00:31:41] Speaker 05:
That's why a prosecutor has to give her reasons right away.

[00:31:46] Speaker 05:
What other reasons did she give for juror J?

[00:31:50] Speaker 03:
For J, she gave the weighing process and also the fact that she was a social worker.

[00:31:55] Speaker 05:
She worked for the Department of... Except she wasn't a social worker, right?

[00:31:58] Speaker 05:
She was just a receptionist at the Department of Social Services.

[00:32:01] Speaker 05:
What do we do about that?

[00:32:03] Speaker 05:
Is that more likely to be pretextual because she's misstated the record?

[00:32:06] Speaker 03:
Well, the District Court actually addressed that in a footnote.

[00:32:09] Speaker 03:
And it said that the prosecutor's notation on the questionnaire showed that she genuinely believed that MJ was a social worker.

[00:32:17] Speaker 03:
And I think working for the Department of Social Services and believing she's a social worker is not so far off that we can say it undercuts her credibility, that she was pretextual, she was misrepresenting the record.

[00:32:28] Speaker 03:
I think there is a reasonable basis for her to have made that notation.

[00:32:32] Speaker 03:
And the District Court considered and

[00:32:36] Speaker 03:
Even considering that, found that it was just a good faith mistake.

[00:32:39] Speaker 03:
It didn't undercut her credibility.

[00:32:40] Speaker 03:
What are her other reasons?

[00:32:42] Speaker 03:
Those were the three main reasons that she gave for why she excused MJ was the bias, the fact that she felt that MJ might show bias in favor of the defendants and against prosecution, the weighing, and that she was a social worker.

[00:32:58] Speaker 03:
She believed her to be a social worker.

[00:32:59] Speaker 05:
She said somewhere that she was concerned that, oh no, I'm sorry.

[00:33:05] Speaker 05:
Fusing her with juror S. Juror J was divorced and didn't have the husband who started the group home.

[00:33:10] Speaker 05:
That was juror S. Correct.

[00:33:12] Speaker 03:
And to the court's point, and another point that was raised by opposing counsel, was some of the things pointed out for why the prosecutor should not be believed, the reliability.

[00:33:22] Speaker 03:
And to your honor's point about it's not just about credibility.

[00:33:25] Speaker 03:
It has to be supported by the record.

[00:33:27] Speaker 03:
The district court actually considered and rejected, explicitly in these cases, rejected the arguments raised by opposing counsels.

[00:33:35] Speaker 03:
So for instance, the good faith mistake about when she read the California Supreme Court opinion.

[00:33:41] Speaker 03:
And the fact that she didn't ask for follow-up, especially on the heinous acts of violence, she admitted that in her testimony.

[00:33:47] Speaker 03:
The district court acknowledged that, that she didn't ask for follow-up, and then still went on to make its finding about believing her reasons, her genuine reasons for why she excused these jurors, and that she was not substantially motivated by race.

[00:34:01] Speaker 03:
So all of that is contained in the district court opinion that it considered and rejected all of those other arguments.

[00:34:08] Speaker 03:
So in sum, it's important to note that the district court did have a wealth of evidence here.

[00:34:15] Speaker 03:
There was a very rich record in that there was the contemporaneous handwritten notes, the voir dire, her motion seeking follow-up for these specific jurors before she ever even saw them in person.

[00:34:26] Speaker 03:
She made requests for follow-up on these jurors, and they actually coordinate with the reasons she later gave for why she excused them.

[00:34:33] Speaker 03:
She picked those out of their questionnaires before she ever saw them.

[00:34:36] Speaker 03:
And all of that together, the district court considered and ultimately found her to be entirely credible, that she was not substantially motivated by race.

[00:34:44] Speaker 03:
And this court should defer to that credibility finding and affirm the court's denial.

[00:34:48] Speaker 03:
Thank you, counsel.

[00:34:49] Speaker 03:
Thank you.

[00:34:51] Speaker 05:
Oh, wait, before you run away, Judge Gould, did you have any questions for the state?

[00:34:56] Speaker 02:
Yeah, I just wanted to make sure, counsel, if we assume that the court considered everything,

[00:35:07] Speaker 02:
as the court said it did, but did not grapple with all the underlying questions explicitly, then what's the result?

[00:35:22] Speaker 02:
Does that mean we should affirm or should we remand?

[00:35:32] Speaker 03:
This court should affirm because

[00:35:35] Speaker 03:
The district court, if we presume that it considered everything, then it went on to make the ultimate step three finding.

[00:35:43] Speaker 03:
And again, it was the only court who had the benefit of seeing the prosecutor testify judging her demeanor.

[00:35:50] Speaker 03:
And the Supreme Court has said that is perhaps the most important evidence at step three.

[00:35:55] Speaker 03:
So I don't think this court can make that finding.

[00:35:57] Speaker 03:
It would either have to affirm the district court's ruling or remand if this court wants there to be an explicit... Are you familiar with the case Shirley v. Yates, which is a case from our court that my colleague Judge Kristen was actually on?

[00:36:14] Speaker 04:
Are you familiar with that case?

[00:36:15] Speaker 04:
Yes, Your Honor.

[00:36:16] Speaker 04:
Okay.

[00:36:17] Speaker 04:
In that case, and now I'm less familiar with this case than maybe others on this panel, so you can correct me if I'm wrong,

[00:36:26] Speaker 04:
In that case, the court held that the district court clearly erred by failing to acknowledge the race-based reason.

[00:36:33] Speaker 04:
Correct?

[00:36:34] Speaker 04:
It was a comparative juror analysis.

[00:36:43] Speaker 03:
So I apologize, Your Honor.

[00:36:45] Speaker 03:
I'm not familiar with that portion of Shirley.

[00:36:47] Speaker 04:
I'm asking you about this because your answer just now seemed to exclude the possibility that we could

[00:36:56] Speaker 04:
find clear error based on the omission.

[00:37:01] Speaker 04:
I think your answer to Judge Gould's question was if we believe that the district court didn't explicitly address the explicit race-based statement, we would have to remand.

[00:37:11] Speaker 04:
I'm presenting you with a case that I think does not, in fact, do that, finds clear error based on the district court's failure to acknowledge evidence in the record that indicates

[00:37:25] Speaker 04:
a race-based motive.

[00:37:28] Speaker 03:
I think that if the court did, and I understand that it's perhaps what was said in Shirley, and if that's the case and this court finds clear error, again, I don't think that it ends there.

[00:37:39] Speaker 03:
I don't think this court can then go on to make the ultimate Batson finding because you are missing that crucial part of the step three analysis.

[00:37:47] Speaker 03:
I think that if you were to find clear error, you would have to defer back to, or remand back to the district court.

[00:37:53] Speaker 05:
The difficulty with Shirley is that that's a more typical record where the prosecutor didn't remember and was recreating.

[00:37:58] Speaker 05:
Here we have this other, almost at the other end of the spectrum.

[00:38:03] Speaker 05:
Judge Gould's trying to ask a question, and I'm not letting him.

[00:38:06] Speaker 02:
Yeah, so if we concluded with you, counsel, that we needed to remand for the district court to make an explicit finding, then

[00:38:22] Speaker 02:
I assume there'd be a likely additional appeal of that.

[00:38:29] Speaker 02:
And then if that's true, wouldn't that was appealed?

[00:38:36] Speaker 02:
Like a disregard to judgment on remand was appealed.

[00:38:42] Speaker 02:
I believe that the appellant here would be able to raise any issue that they thought

[00:38:52] Speaker 02:
to the new judgment.

[00:38:56] Speaker 02:
And if that's correct, would we be facing a likely due process challenge to the conviction because of the length of time that had elapsed since the trial?

[00:39:19] Speaker 03:
I don't think so, Your Honor, because I'm not aware of any case that holds that just based off of the length of time.

[00:39:26] Speaker 03:
But I think that the state understands the concern about the length of time and the prejudice.

[00:39:35] Speaker 03:
However, the Batson inquiry must be accurately evaluated.

[00:39:40] Speaker 03:
And I think that although there is this record here that maybe didn't exist in Shirley, it's still a cold record.

[00:39:46] Speaker 03:
And there is a lot that is different when someone is testifying in person in front of the person who's making that credibility finding that is lost on the cold record.

[00:39:56] Speaker 03:
And so I think that the correct way under Supreme Court case law in this court's prior holdings would be to remand to the district court.

[00:40:05] Speaker 03:
And if it is this limited sort of inquiry about did it grapple with this race articulation, and if so,

[00:40:15] Speaker 03:
if it does so in the first instance and then makes its ultimate findings based off of what it observed at the evidentiary hearing, that would be the correct way to resolve this Batson claim.

[00:40:27] Speaker 02:
Could we put a time limit on the district court or just be up to the district court?

[00:40:35] Speaker 03:
This court certainly could do that if it was so inclined.

[00:40:41] Speaker 02:
Okay, thank you, counsel.

[00:40:42] Speaker 03:
Thank you, counsel.

[00:40:49] Speaker 01:
Your Honor, just three quick points.

[00:40:50] Speaker 05:
You gotta get to the microphone or Judge Gold won't hear you.

[00:40:52] Speaker 01:
Three quick points.

[00:40:53] Speaker 01:
Sure.

[00:40:54] Speaker 01:
A note was handed to me that said that in the Weasley excerpt of record, volume two, page 302, there is a discussion at the evidentiary hearing about the comment of the NAACP.

[00:41:08] Speaker 05:
Volume two, page what?

[00:41:10] Speaker 01:
302.

[00:41:13] Speaker 05:
You've got the note.

[00:41:15] Speaker 05:
Is that it, volume two, page 302?

[00:41:17] Speaker 05:
Is that what the note says?

[00:41:18] Speaker 01:
That's right.

[00:41:18] Speaker 05:
Okay, we'll make note of it and I appreciate that, thanks.

[00:41:21] Speaker 01:
The second one is, you know, very quickly.

[00:41:23] Speaker 01:
Sure.

[00:41:24] Speaker 01:
I don't care what the district attorney's policy is, their office policy, if it's not lined up with Batson, the policy is irrelevant.

[00:41:33] Speaker 05:
Does Batson require her to give a reason?

[00:41:35] Speaker 01:
Excuse me?

[00:41:36] Speaker 05:
Did Batson require her to give a reason?

[00:41:37] Speaker 05:
Is that your position?

[00:41:39] Speaker 01:
Yes.

[00:41:41] Speaker 01:
I mean, that's what, if there is an inference there, she must give a contemporaneous reason for the strike, and it must be race neutral.

[00:41:55] Speaker 01:
My last quick point.

[00:41:57] Speaker 01:
Is there any interest with this court in discussing uncertified claims?

[00:42:04] Speaker 05:
I haven't heard any interest, but if you'd like to address them, you may.

[00:42:07] Speaker 05:
What's your strongest uncertified claim?

[00:42:11] Speaker 05:
We Mr.. James, and I split the case I brought I did Batson and Mr.. James did The clock is running if you'd like to hear be heard about your strongest uncertified claim now is your now's your time But you got to get to the microphone first or the recording won't catch your voice, okay?

[00:42:33] Speaker 00:
May it please the court your honor.

[00:42:34] Speaker 00:
I'll be very quick with this.

[00:42:35] Speaker 00:
I do want to emphasize that I

[00:42:38] Speaker 00:
The PCLA claim and but with respect to penalty phase not killed specifically our argument that's a very unusual situation the PCLA was and we think that the primary there was prejudice and actually I would point out that judge Wilson did find that the contract precluded

[00:42:59] Speaker 05:
Appointment of a second attorney at state expense Which is the whole place they had had if they had requested more money and had received more money and had more help What is it that would have come out differently?

[00:43:11] Speaker 00:
What evidence would have been offered what what you've got a prejudice problem here, so I agree And that's the point the point is if you look at in Coleman's case I mean in Cleveland's case if you look at the penalty phase you honor it was in the visible performance of

[00:43:26] Speaker 00:
If you look at what the law of the Supreme Court is, what should be done... That's a prong one argument.

[00:43:34] Speaker 05:
For my hypothetical, I'm willing to say, let's say that performance fell below an objectively reasonable standard, hypothetically.

[00:43:42] Speaker 05:
Tell me what's your strongest prong two, please.

[00:43:46] Speaker 00:
The failure, if I understand the court's question, the failure... What's prejudice?

[00:43:53] Speaker 05:
What was the prejudice?

[00:43:54] Speaker 00:
The prejudice was this.

[00:43:56] Speaker 00:
that Coleman did not have time to present mitigation in the penalty phase at all.

[00:44:04] Speaker 00:
And let me just give one example is the strongest argument for the prejudice.

[00:44:10] Speaker 00:
One of the most important things the defense attorney does in a capital case is prepare for and present mitigation and that is even in the face of aggravating circumstances of priors.

[00:44:21] Speaker 00:
You don't just let them come in and the evidence come in, you make an effort to mitigate

[00:44:26] Speaker 00:
The difficulty that presents for your client in front of a jury and here there was a 1984 conviction Which it's interesting.

[00:44:36] Speaker 00:
There was a police officer.

[00:44:37] Speaker 00:
It was the conviction was for Assault on a police officer by backing a car up.

[00:44:44] Speaker 00:
I Think we argue this in the brief but the fact of the matter is the disparity between what the officer or

[00:44:51] Speaker 00:
put in his reports and what all the documents available were, made it clear that what happened according to back then was that the officer stops, he's starting to get off his cycle and the car backed into him and knocked him off and then the car went forward but then he noticed that the car was driving away and he shot bullets into the back of the car.

[00:45:19] Speaker 00:
That's not what he testified to though.

[00:45:21] Speaker 00:
This is what the prosecutor thought he was going to testify to.

[00:45:25] Speaker 00:
And that's what she said in the opening statement.

[00:45:27] Speaker 00:
This is what happened.

[00:45:28] Speaker 00:
And that's bad.

[00:45:28] Speaker 00:
I'm not saying it isn't.

[00:45:30] Speaker 00:
But what did he testify to?

[00:45:32] Speaker 00:
He came in and testified that the car backed into the motorcycle.

[00:45:37] Speaker 00:
And then as it was driving away, he noticed the reverse come on again.

[00:45:41] Speaker 00:
And the guy was backing up to back over him.

[00:45:45] Speaker 00:
And I just wanted to stress what

[00:45:51] Speaker 00:
what the prosecutor made out of this, Your Honors.

[00:45:54] Speaker 00:
She said, partly, this is her argument after that testimony, he puts his foot on the gas and the only reason he didn't run over Mike Gebhardt is because Gebhardt shot him.

[00:46:05] Speaker 00:
He fired the car four times.

[00:46:09] Speaker 00:
It was the only reason he didn't kill Mike Gebhardt.

[00:46:12] Speaker 00:
He could have been victim number two.

[00:46:14] Speaker 00:
Another lucky day for Delano Cleveland.

[00:46:16] Speaker 00:
He didn't kill somebody, not because he didn't want to.

[00:46:19] Speaker 00:
And this was after she points out he moves the motorcycle, looks back, and he put it in reverse again.

[00:46:25] Speaker 00:
He puts it in reverse again.

[00:46:27] Speaker 00:
That is something which was not true.

[00:46:30] Speaker 00:
It could have been impeached without even going after the officer.

[00:46:35] Speaker 00:
The point is, that's not what he made in his report.

[00:46:38] Speaker 00:
That's not what it was a assault, not an attempted murder.

[00:46:43] Speaker 00:
She turned it into an attempted murder.

[00:46:45] Speaker 00:
And this was an important part of her argument, Your Honor.

[00:46:48] Speaker 00:
Was this and I think that it has a major impact with respect to mr. Coleman And I'm sorry mr. Cleveland in terms of what this jury had to deal with to decide Death or not so that's just one example of if he had the ability to get what he needed he had a lot to deal with the guilt and I would say that if you look at Kenan the reason they call it Kenan council was because

[00:47:15] Speaker 00:
The Supreme Court of California emphasized that in a death penalty case, they've got to prepare two stages at once.

[00:47:22] Speaker 00:
You can't wait.

[00:47:24] Speaker 00:
And that's the reason if you have a case where you need to be able to prepare the penalty phase at the same time as the guilt phase, he needed help to do that.

[00:47:34] Speaker 00:
And if you remember from the record,

[00:47:36] Speaker 00:
The investigator testified that he was the only investigator.

[00:47:40] Speaker 00:
He said there was no emphasis whatsoever on the penalty phase.

[00:47:44] Speaker 00:
He said our entire preparation was guilt phase, and that's what it showed.

[00:47:49] Speaker 00:
He didn't do anything.

[00:47:50] Speaker 00:
He put on four witnesses that the prosecutor made fun of, that these are just the people who say he's a nice guy.

[00:47:55] Speaker 00:
And if you look at the penalty phase, it was not even close to being the kind of mitigation

[00:48:04] Speaker 00:
that was to be attempted.

[00:48:05] Speaker 00:
That's not to say it's going to have a definite change, but it only takes one juror to say his background, his institutional history, for example, was good for seven years.

[00:48:19] Speaker 00:
There were a lot of witnesses who could have testified he was a good prisoner.

[00:48:24] Speaker 00:
A lot of reasons for a jury to say, well, we don't need to impose a death penalty.

[00:48:29] Speaker 00:
And I think that's the prejudice here was he needed help

[00:48:33] Speaker 00:
and he could not seek it like any other attorney could have because of the PCLA contract which precluded it.

[00:48:42] Speaker 00:
So that's the main argument in terms of the PCLA claim and I'll leave it at that.

[00:48:48] Speaker 00:
Thank you.

[00:48:48] Speaker 05:
If there's nothing further, Judge Gould, anything further from you?

[00:48:52] Speaker 02:
From me, thank you.

[00:48:54] Speaker 05:
We'll leave it at that.

[00:48:56] Speaker 05:
I want to thank all counsel for your briefing and for your arguments.

[00:48:58] Speaker 05:
It's a complicated case.

[00:49:00] Speaker 05:
It is a case that needs to be resolved.

[00:49:02] Speaker 05:
We're very, very mindful of that, and we'll get you something just as soon as we can.

[00:49:06] Speaker 05:
We'll be in recess.