[00:00:02] Speaker 03:
The next case for argument is Johnson versus Rankins.

[00:00:06] Speaker 03:
It is Dock at 23-5095.

[00:00:08] Speaker 03:
Counsel, please proceed when you're ready.

[00:00:12] Speaker 00:
Thank you.

[00:00:13] Speaker 00:
May it please the court?

[00:00:15] Speaker 00:
Good morning.

[00:00:15] Speaker 00:
I'm Tessa Henry from the Attorney General's Office of Oklahoma.

[00:00:19] Speaker 00:
And with me is co-counsel Aspen Lehmann.

[00:00:21] Speaker 00:
And we represent the appellant respondent, William Rankins.

[00:00:26] Speaker 00:
In this case, there is one thing that all parties agree on.

[00:00:30] Speaker 00:
And that is that a Batson reconstruction hearing is absolutely feasible with respect to Batson's second step.

[00:00:37] Speaker 00:
Indeed, the district court in its opinion and order noted, arguably, it would not be impossible or unsatisfactory to reconstruct that portion of the Batson reconstruction hearing that pertains to step two.

[00:00:49] Speaker 00:
And indeed, Johnson admits the same in his belief to this court and even goes on to make what appear to be step three arguments as to Batson.

[00:00:59] Speaker 00:
And that's what this court specifically directed the district court to decide was whether or not a reconstruction hearing was feasible as to step two of Batson.

[00:01:10] Speaker 00:
But instead, the district court improperly focused on ways in which or problems that might arise as to Batson's third step, and this was an abusive discretion.

[00:01:23] Speaker 00:
Importantly, in this case, Rankin's provided the district court with everything that it needed to reconstruct Batson's second step.

[00:01:31] Speaker 00:
Rankin's provided the prosecutor's contemporaneous notes from Boitier, as well as jury charts filled out by both prosecutors, depositions from all relevant parties, including both trial prosecutors,

[00:01:46] Speaker 00:
the trial judge and trial defense counsel, race and ethnicity information for every single member of this prospective jury pool, as well as the voir dire transcripts themselves.

[00:01:59] Speaker 00:
And all of this evidence formed a great deal of direct and circumstantial evidence of the prosecutor's states of mind in this case.

[00:02:09] Speaker 00:
As far as direct evidence, we have the lead prosecutor in this case, Mr. Tim Harris, providing race-neutral reasons as to every single prospective juror at issue in this case that this court discussed in its previous decision.

[00:02:24] Speaker 02:
With respect to circumstantial... The court indicated some concerns about those race-neutral reasons and said, well, there's no way that the court could consider or even contemplate

[00:02:39] Speaker 02:
the reasons that were given for, well, facial expressions, or a tone of voice, or something that was implied in something someone said to the prosecutor.

[00:02:49] Speaker 02:
Yes.

[00:02:50] Speaker 02:
Do those implicate step two, or is that really a step three question?

[00:02:56] Speaker 00:
That is step three.

[00:02:58] Speaker 00:
Step two, according to the Supreme Court in Perkett versus Elim, is really just

[00:03:05] Speaker 00:
The prosecutor provides facially valid race neutral reasons.

[00:03:10] Speaker 02:
Of course, step two, as considering in that case, was assuming it was going to be spontaneous and contemporaneous.

[00:03:19] Speaker 02:
And with Batson hearing, we don't have that contemporaneous element.

[00:03:24] Speaker 02:
So do we treat it differently?

[00:03:29] Speaker 02:
Sort of new territory is what I'm saying.

[00:03:31] Speaker 00:
Yes, that is true.

[00:03:32] Speaker 00:
It is a unique circumstance, and certainly the first time this circuit has really dealt with it.

[00:03:39] Speaker 00:
But in my opinion, step two remains the same, whether it is at trial or years after the fact.

[00:03:46] Speaker 00:
10 years later or nine years later.

[00:03:48] Speaker 00:
Yes, it is the prosecutor providing the facially valid racial reasons.

[00:03:52] Speaker 00:
It's at step three where you get to the credibility determination and any arguments as far as pretext.

[00:04:00] Speaker 00:
So step three would have been where the district court would have judged the credibility of the prosecutors.

[00:04:07] Speaker 02:
Presumably at step three, even with the contemporaneous objection, which we didn't have here,

[00:04:14] Speaker 02:
the district court might not have seen the facial expression or might not have seen or heard perhaps the tone of voice.

[00:04:22] Speaker 02:
It should have heard the tone of voice.

[00:04:24] Speaker 02:
But I suppose they are doing some of that judging of the prosecutor's credibility, regardless of when the hearing is ultimately heard.

[00:04:33] Speaker 00:
Absolutely.

[00:04:34] Speaker 00:
In Hernandez versus New York, the Supreme Court made clear that the most important thing about the Batson inquiry is actually the demeanor of the prosecutor providing the race mutual reasons.

[00:04:46] Speaker 00:
And so it is a big credibility question for the trial court to answer.

[00:04:51] Speaker 00:
And in Thaler versus Haynes, the Supreme Court also decided that just because a trial judge doesn't necessarily witness a

[00:05:03] Speaker 00:
facial expression or an arm crossing or something of that nature doesn't mean that the trial judge has to reject that racial reason.

[00:05:11] Speaker 00:
Again, it is just about judging that credibility.

[00:05:14] Speaker 02:
Would the district court have been okay had it taken a different approach here and said, all right, step two, it looks like we could have a hearing on step two, but I can already tell you that I will not

[00:05:30] Speaker 02:
find the prosecutor credible, and I just can't go there because I can't judge 10 years later whether he's telling the truth about a facial expression or a tone of voice.

[00:05:43] Speaker 02:
And I find that, or I just simply am going to find that incredible.

[00:05:48] Speaker 02:
Could that have happened, or would this judge have had to have the hearing first?

[00:05:53] Speaker 00:
In my opinion, according to this court's previous decision in this case,

[00:05:59] Speaker 00:
The feasibility question is just with respect to step two.

[00:06:04] Speaker 00:
This court in its previous decision seemed concerned about the passage of time and whether or not there would be any memory left on the part of the prosecutors.

[00:06:12] Speaker 00:
So that, in my opinion, is where the feasibility question stands.

[00:06:16] Speaker 00:
So if the district court found that step two was feasible, as it did in this case, then it should have held a reconstruction hearing.

[00:06:24] Speaker 00:
Because it's really impossible for the district court to know without

[00:06:29] Speaker 00:
Seeing and hearing the testimony in person of the prosecutors and defense counsel and the trial judge, it's really impossible for the district court to make the kind of determination that it did in this case and kind of assume a credibility determination.

[00:06:43] Speaker 03:
It's not unusual for demeanor to be an important consideration during foredear.

[00:06:52] Speaker 03:
Yes.

[00:06:53] Speaker 03:
Show me a voir dire where it hasn't been.

[00:06:55] Speaker 03:
And so is the district court ruled here essentially a per se rule that I'm just not going to ever have a reconstruction hearing because prosecutors are going to come in here and tell me you didn't like someone's demeanor and don't have a time machine so I can't tell.

[00:07:13] Speaker 03:
Is that what's going on?

[00:07:15] Speaker 03:
And if so, is that abuse of discretion or is that an error of law?

[00:07:20] Speaker 00:
It's a factual and a legal error.

[00:07:24] Speaker 00:
in this case.

[00:07:25] Speaker 00:
And I do think it is a situation where the district court is saying, if there are demeanor-based reasons, then I'm not going to hold a hearing.

[00:07:34] Speaker 00:
That seemed to be what happened in this case.

[00:07:37] Speaker 00:
The district court was not there for voir dire in December 2012.

[00:07:42] Speaker 00:
And so the district court did not feel comfortable holding a reconstruction hearing.

[00:07:47] Speaker 00:
And that was absolutely error.

[00:07:50] Speaker 00:
And I want to point this court very quickly to the case of Brown versus Kelly from the Second Circuit.

[00:07:56] Speaker 00:
And in that case, the prosecutor provided, I think it was about six years after the after voir dire, the prosecutor provided race neutral reasons as to for prospective jurors.

[00:08:08] Speaker 00:
And those were mainly demeanor based.

[00:08:11] Speaker 00:
The prosecutor explained that one juror was timid and nervous.

[00:08:15] Speaker 00:
Another juror was acting hostile in his demeanor and tone.

[00:08:21] Speaker 00:
And the habeas court in that case still held a hearing and still was able to make credibility determinations with respect to those race neutral reasons.

[00:08:32] Speaker 00:
And on appeal, the Second Circuit emphasized that the district court in that case, regardless of whether or not there were demeanor-based reasons,

[00:08:41] Speaker 00:
was not foreclosed from making the necessary determination as to the prosecutor's state of mind.

[00:08:47] Speaker 00:
So this absolutely could have happened in this case.

[00:08:50] Speaker 00:
A reconstruction hearing could have happened.

[00:08:52] Speaker 00:
And I think it's important to note, too, that Mr. Harris provided non-demeanor-based race mutual reasons as to the two prospective jurors at issue, Twill and Martinez.

[00:09:05] Speaker 00:
Twill, Mr. Harris explained, was a medical doctor.

[00:09:09] Speaker 00:
And Mr. Harris and Mr. Drummond and their general voir dire tactics tended to avoid persons with higher degrees because there was a chance that they would be too critical or too exacting.

[00:09:21] Speaker 00:
Prospective juror Twill also knew someone else on the prospective jury panel, Dr. Victoria Wilson.

[00:09:30] Speaker 00:
And Mr. Harris, again, was concerned about jurors knowing each other because when it came time for deliberations, there was a threat of outside influence.

[00:09:39] Speaker 00:
And it also appeared that there was maybe some tension between these two prospective jurors.

[00:09:44] Speaker 00:
And then we finally have the demeanor-based reason, which was some maybe facial expressions or tone during to Will's interaction with defense counsel Mark Lyons that kind of raised a red flag to Mr. Harris.

[00:10:00] Speaker 00:
So we have several reasons here before we even get to demeanor that the district court could have.

[00:10:07] Speaker 00:
considered.

[00:10:08] Speaker 00:
And the same with Martinez.

[00:10:10] Speaker 02:
Let's say this goes back.

[00:10:14] Speaker 02:
I'm still struggling to understand what this particular district judge who's concerned about judging demeanor of the prosecutor as to demeanor 10 years ago of the jurors, prospective jurors, if this judge says, yeah, I don't

[00:10:33] Speaker 02:
I find basically you're not credible as to any of these statements you're making about demeanor.

[00:10:40] Speaker 02:
However, yeah, you are credible, because these other statements are verified by the record, essentially, these other reasons.

[00:10:50] Speaker 02:
If that district judge then says, but because you're relying on demeanor-based reasons nine years later, I can't.

[00:11:02] Speaker 02:
Basically, I can't find that credible, the whole entire reason.

[00:11:06] Speaker 02:
This is kind of getting to be a long story.

[00:11:09] Speaker 02:
My point is, how do you separate those?

[00:11:11] Speaker 02:
How do we ask the district court, if we remand this, which is what you're asking us to do, how does the district court resolve the problem that it has with judging the prosecutor's demeanor?

[00:11:24] Speaker 00:
So that would, again, be a step three determination.

[00:11:28] Speaker 00:
Something that we have here, some things that we could probe and explore in a reconstruction hearing is having Judge Tom Gillert, the trial judge from this case, testify because he was present.

[00:11:42] Speaker 00:
He was in the room.

[00:11:43] Speaker 00:
And he could perhaps testify as to if he recalled any of these prospective jurors demeanor, the same for Mr. Mark Lyons.

[00:11:52] Speaker 00:
He could be asked about that.

[00:11:54] Speaker 00:
There are other ways to explore this to determine that credibility in addition to watching Mr. Harris testify at a reconstruction hearing.

[00:12:03] Speaker 00:
And if this court doesn't have any further questions, I want to answer.

[00:12:06] Speaker 01:
I actually have a question.

[00:12:07] Speaker 00:
Yes, of course.

[00:12:08] Speaker 01:
I am wondering then what you would, what you think about the argument.

[00:12:13] Speaker 01:
I think that your opposing counsel will make that we just can't do reconstruction hearings.

[00:12:21] Speaker 01:
US Supreme Court has never said they're okay.

[00:12:25] Speaker 01:
I know they're going on, I guess the argument goes, but

[00:12:29] Speaker 01:
Given the problems of reconstructing something 10 years later, how can that be constitutional?

[00:12:38] Speaker 01:
I'm making the argument.

[00:12:39] Speaker 01:
I'm asking you to respond to anything.

[00:12:41] Speaker 00:
Yes.

[00:12:42] Speaker 00:
Well, I respectfully disagree that they have not been approved by the Supreme Court because they have been in Batson itself and then in Johnson versus California.

[00:12:52] Speaker 01:
Where in Batson did they say you can reconstruct 10 years later?

[00:12:55] Speaker 00:
Well, not specifically 10 years later, but the Supreme Court did remand Batson for further fact-finding.

[00:13:01] Speaker 00:
And the same at Johnson v. California, they remanded for steps two and three of the Batson inquiry.

[00:13:07] Speaker 00:
And many circuits hold reconstruction hearings, the Second Circuit especially, the Third Circuit, the Ninth Circuit.

[00:13:16] Speaker 00:
And again, it's a question of credibility.

[00:13:20] Speaker 00:
When we have jury trials, the jurors weren't present for the crime.

[00:13:25] Speaker 00:
that these witnesses are testifying to.

[00:13:27] Speaker 00:
But they can judge the credibility of these witnesses and make these fact findings.

[00:13:36] Speaker 00:
So I think that that's when reconstruction hearings can absolutely happen.

[00:13:39] Speaker 00:
And it's why this court, in crafting a remedy in this case, decided to attempt a reconstruction hearing.

[00:13:49] Speaker 00:
I'd like to reserve the rest of my time.

[00:13:53] Speaker 04:
May it please the court, James Hankins, appearing for Appellee Alonzo Johnson.

[00:14:03] Speaker 04:
It's not often I sit at the Appellee table.

[00:14:07] Speaker 04:
So I have newfound appreciation for the standard of review here.

[00:14:11] Speaker 04:
And in our view, that might be determinative of this case, because this is not a substitution of your judgment for the district court.

[00:14:23] Speaker 04:
This is an evaluation of the judgment of the district court as arbitrary, capricious, totally based on things not in the record.

[00:14:35] Speaker 04:
It's a heavy load for, I think, the state to pull here.

[00:14:41] Speaker 03:
Why is it every day district courts evaluate credibility of witnesses?

[00:14:48] Speaker 03:
And they weren't there.

[00:14:49] Speaker 03:
They didn't see this.

[00:14:50] Speaker 03:
They didn't see that.

[00:14:52] Speaker 03:
But they looked the witnesses.

[00:14:53] Speaker 03:
They consider all of the facts.

[00:14:55] Speaker 03:
And here, there is a rich record as far as notes, as far as statements during trial, as far as the state judges' statements during trial.

[00:15:07] Speaker 03:
I don't know that you get a much better case than this one to have a Batson hearing.

[00:15:11] Speaker 03:
Now, it's the district court's call.

[00:15:14] Speaker 03:
Nobody here is saying,

[00:15:16] Speaker 03:
And we're going to reverse you if you go this way or that way.

[00:15:19] Speaker 03:
The district court looks at all of those people.

[00:15:21] Speaker 03:
Here's what they have to say, considers the facts, considers anything that is proposed, and then decides.

[00:15:28] Speaker 03:
Here's what I find.

[00:15:29] Speaker 03:
I find that you're not credible, or you're credible.

[00:15:34] Speaker 03:
It just looks like a punt.

[00:15:36] Speaker 03:
Why is this not a punt?

[00:15:38] Speaker 03:
By the district court?

[00:15:39] Speaker 03:
Exactly.

[00:15:41] Speaker 04:
Well, the district court.

[00:15:45] Speaker 04:
by my count, gave five reasons for that in its written order.

[00:15:51] Speaker 04:
And I think in the briefing, the state kind of limits it to two reasons concerning Dr. Twill and Ms.

[00:16:01] Speaker 04:
Martinez as the jurors, the tone or the demeanor-based attitude of those two jurors.

[00:16:10] Speaker 04:
But there's three other criteria here.

[00:16:12] Speaker 04:
It's the length of time over a decade,

[00:16:15] Speaker 04:
And there's two other that are very important.

[00:16:19] Speaker 04:
And I think they stem mainly from the testimony of the defense lawyer, Mr. Lyons.

[00:16:24] Speaker 04:
And that is, we look to the demeanor of the jurors, but we also have to look to the demeanor of the prosecutors themselves at the time that they are making the strike.

[00:16:37] Speaker 04:
And the second one, which may be the most important, is the atmosphere of the trial.

[00:16:43] Speaker 04:
Because Mr. Lyons said,

[00:16:45] Speaker 04:
And I probably didn't emphasize this in the way I should have, but there's a gallery back there.

[00:16:55] Speaker 04:
There's people, there are citizens of the county who are watching this.

[00:17:00] Speaker 04:
And that's what Mr. Lyons said.

[00:17:02] Speaker 04:
He says, you know, I could see it and everyone in the gallery could see it.

[00:17:07] Speaker 04:
That's why he made the bats an objection.

[00:17:11] Speaker 04:
And I think in a court, the district court,

[00:17:16] Speaker 04:
stylistically used extensive footnotes.

[00:17:19] Speaker 04:
But the district court noted that in footnote 14 of the opinion.

[00:17:23] Speaker 04:
And it's like, how am I supposed to reconstruct the, by all accounts, even Judge Gillert admitted this, the racially charged atmosphere of this?

[00:17:34] Speaker 04:
And let's not.

[00:17:35] Speaker 02:
Why can't you put on all of that evidence of the racially charged atmosphere, which might implicate the prosecutor's motives here, that the prosecutor himself was

[00:17:46] Speaker 02:
threatened with murders, allegedly, by Mr. Johnson.

[00:17:52] Speaker 02:
Why can't you put all that on?

[00:17:54] Speaker 02:
Why wouldn't that be relevant in a Batson hearing?

[00:17:56] Speaker 02:
Has anyone suggested you can't?

[00:17:59] Speaker 04:
Well, the district court indicated

[00:18:02] Speaker 04:
Well, the district court did not indicate that we could not put it on.

[00:18:06] Speaker 04:
The district court said it could not be reconstructed in a viable way.

[00:18:10] Speaker 02:
You're talking about the demeanor of the prosecutor.

[00:18:12] Speaker 02:
That's the only reason, or the demeanor of the various witnesses the prosecutor was testifying to.

[00:18:19] Speaker 02:
I didn't see anything in the district court's order suggesting that if we were to remand for a Batson hearing,

[00:18:26] Speaker 02:
that you would not be able to present whatever evidence that you believe was relevant to the prosecutor's motive.

[00:18:39] Speaker 02:
is also saying the reason that we remember this is because this was such a public trial, such an important trial.

[00:18:48] Speaker 02:
There were three defendants.

[00:18:49] Speaker 02:
They are also suggesting that their memory is essentially been refurbished by the fact that this is such an important case.

[00:18:59] Speaker 02:
I think both sides will have that kind of information.

[00:19:02] Speaker 04:
Well, I think that just illustrates the point.

[00:19:04] Speaker 04:
It also provides a powerful motive for this prosecutor to put the guy who he thought was going to murder him in prison.

[00:19:12] Speaker 02:
Right.

[00:19:12] Speaker 02:
I mean, but why can't you present that evidence at a Batson hearing?

[00:19:15] Speaker 02:
I don't think anyone has suggested you can't.

[00:19:17] Speaker 02:
You did discovery on it.

[00:19:19] Speaker 04:
We could present the evidence.

[00:19:21] Speaker 04:
The district court ruled

[00:19:23] Speaker 04:
OK, even if you did, how am I going to evaluate that?

[00:19:27] Speaker 02:
I understand.

[00:19:27] Speaker 02:
You're talking about that sort of evidence that I'm trying to verify, that there doesn't seem to be anything preventing that from coming in at an actual Batson hearing.

[00:19:37] Speaker 02:
It's just that the district court cut that off by ruling that he couldn't judge the demeanor of these witnesses, and so he couldn't recreate, essentially,

[00:19:49] Speaker 04:
As to the racially charged atmosphere, I'm not sure what evidence there is.

[00:19:53] Speaker 04:
That is a mood.

[00:19:55] Speaker 04:
We have a mood here.

[00:19:56] Speaker 02:
I thought you had the prosecutor testify, or did you have him testify in the... The defense lawyer mentioned that.

[00:20:03] Speaker 02:
I'm talking about the prosecutor, but the defense lawyer testified.

[00:20:05] Speaker 04:
Yeah, Mr. Lyons.

[00:20:06] Speaker 02:
I thought, and why wouldn't you have that testimony then?

[00:20:11] Speaker 04:
Why wouldn't we call him at a reconstruction hearing if it's remanded?

[00:20:14] Speaker 04:
We certainly could.

[00:20:15] Speaker 02:
Right.

[00:20:16] Speaker 04:
On the other side...

[00:20:18] Speaker 04:
I'm not sure what he's going to add.

[00:20:20] Speaker 04:
That's not already in the deposition, is I guess what I'm saying.

[00:20:23] Speaker 04:
And I think we all understand what a racially charged atmosphere is.

[00:20:30] Speaker 04:
But it's more of a mood and a feeling.

[00:20:32] Speaker 04:
I'm not sure how a federal district judge evaluates that in terms of this Batson Court.

[00:20:39] Speaker 03:
This is a great argument for the district court at a reconstruction hearing.

[00:20:44] Speaker 03:
Now, what we sent it back with is,

[00:20:47] Speaker 03:
Is it impossible or unsatisfactory to hold the hearing?

[00:20:51] Speaker 03:
I can think it would be impossible if the prosecutor were deceased.

[00:20:55] Speaker 03:
The state judge had climbed the Himalayas and something.

[00:21:02] Speaker 03:
There's nothing impossible.

[00:21:03] Speaker 03:
In fact, the table is set, in this case, about as good as a table can be set for a reconstruction hearing.

[00:21:10] Speaker 03:
And if this one's not good enough, then what is good enough?

[00:21:14] Speaker 03:
And why do we even bother sending any back?

[00:21:17] Speaker 04:
Well, that's a good question.

[00:21:19] Speaker 04:
And in our view, these reconstruction hearings are completely illegitimate judicial proceedings.

[00:21:25] Speaker 02:
And you argued that.

[00:21:27] Speaker 02:
And in your rehearing, we denied your rehearing.

[00:21:30] Speaker 02:
We petitioned for cert to the Supreme Court.

[00:21:33] Speaker 02:
Law of the case here.

[00:21:35] Speaker 02:
Law of the case is we sent it back for a reconstruction hearing with directions.

[00:21:40] Speaker 02:
That's the law of the case.

[00:21:42] Speaker 02:
And yet, in your brief, you want to talk about bats in hearings, and that you don't agree with them, and you think the state waived them.

[00:21:49] Speaker 02:
But that's been there, done that.

[00:21:52] Speaker 02:
Why would we go there again in this case?

[00:21:56] Speaker 04:
Because the court has not considered those.

[00:21:58] Speaker 02:
You filed a motion for reconsideration.

[00:22:01] Speaker 02:
We denied it.

[00:22:02] Speaker 04:
That's not a merits determination, Your Honor.

[00:22:04] Speaker 02:
Well, in this case, it's the law of the case that we sent it back for a Batson hearing.

[00:22:10] Speaker 02:
We listed all the various support for Batson hearings.

[00:22:15] Speaker 02:
We sent it back.

[00:22:16] Speaker 02:
We denied your motion for rehearing.

[00:22:18] Speaker 02:
You had an opportunity to make that argument to the US Supreme Court.

[00:22:20] Speaker 02:
You did in a petition for cert.

[00:22:24] Speaker 02:
We've been there and done that, is my point.

[00:22:26] Speaker 04:
I disagree, Your Honor.

[00:22:28] Speaker 04:
When you send it back to the district court,

[00:22:30] Speaker 04:
I'm an advocate for Mr. Johnson.

[00:22:32] Speaker 04:
And those are issues that I think are determinative.

[00:22:35] Speaker 04:
And I raise them.

[00:22:36] Speaker 04:
That's all I can do.

[00:22:38] Speaker 02:
So you think this panel can override the prior panel who said, we are remanding for a Batson hearing.

[00:22:45] Speaker 02:
And this is what you need to do once it's remanded.

[00:22:50] Speaker 02:
There is a specific direction as to what you need to do.

[00:22:53] Speaker 02:
The district court followed it.

[00:22:54] Speaker 02:
And now you're suggesting, OK, we can reverse all that and say, never mind.

[00:23:01] Speaker 02:
Bats and hearings are an option.

[00:23:05] Speaker 04:
I considered how to bring these issues to the fore, considered a cross appeal.

[00:23:15] Speaker 04:
My research indicated as the prevailing party, Mr. Johnson got the relief he asked for.

[00:23:21] Speaker 04:
So he's not really entitled to a cross appeal.

[00:23:24] Speaker 04:
And then there's a 2014 US Supreme Court case, Jennings v. Stevens.

[00:23:31] Speaker 04:
which is basically on point here saying that a certificate of appeal ability on those issues or a cross appeal are not necessary.

[00:23:40] Speaker 04:
The petitioner can raise issues that were denied.

[00:23:46] Speaker 04:
So I would just cite the court to Jennings versus Stevens, 2014.

[00:23:51] Speaker 04:
It's a 63 opinion authored by Justice Scalia.

[00:23:55] Speaker 04:
So when I was responding to the, well, number one, I didn't cross appeal for that reason.

[00:24:01] Speaker 04:
And number two, when I'm responding to the brief of the appellant, I think I was obligated to raise those issues.

[00:24:15] Speaker 04:
Are there any other specific questions?

[00:24:24] Speaker 03:
My question, which was, what more do you want?

[00:24:28] Speaker 03:
The only thing I can see here that

[00:24:31] Speaker 03:
Another case might have is in the note, the voir dire notes, it might have said, I noted the demeanor, and it doesn't say that here, which in a way almost cuts the other way because they could have written that later if they were of that kind of ilk.

[00:24:47] Speaker 04:
So that's the entire point, Judge.

[00:24:50] Speaker 04:
Almost all of these considerations cut one way or cut another.

[00:24:54] Speaker 04:
That's what the district court had to decide.

[00:24:56] Speaker 04:
And the district court decided it in a way that

[00:25:00] Speaker 04:
is adverse to the appellant's case.

[00:25:03] Speaker 04:
In our view, that's correct.

[00:25:06] Speaker 04:
It's irrelevant whether it's correct or not.

[00:25:08] Speaker 04:
It was not an abuse of discretion.

[00:25:12] Speaker 02:
The district court can find that prosecutor not to be credible if you have a hearing on remand

[00:25:18] Speaker 02:
District Court can find the prosecutor not to be credible.

[00:25:21] Speaker 02:
And then it's left as to the demeanor issues.

[00:25:24] Speaker 02:
And then it's left with deciding, does that conclusion, if it makes it, impact the other reasons that the prosecutor has provided, which are justifiable on the record?

[00:25:36] Speaker 02:
And it's up to the District Court what it thinks about the prosecutor's overall credibility.

[00:25:42] Speaker 02:
I guess I'm struggling with why the District Court can't judge that.

[00:25:48] Speaker 04:
Well, clearly the district court can.

[00:25:52] Speaker 04:
The district court concluded that it would be unsatisfactory or impossible for it to do so.

[00:25:58] Speaker 04:
Was that conclusion?

[00:25:59] Speaker 02:
I read the district court simply to conclude that any time there are reliance on demeanor evidence, that it simply can't have a satisfactory hearing.

[00:26:12] Speaker 02:
It was more of a black and white line.

[00:26:16] Speaker 04:
I disagree, Judge.

[00:26:17] Speaker 04:
I do not read it that way.

[00:26:19] Speaker 04:
The district court opinion is very thorough, cites bats, and understood the law.

[00:26:25] Speaker 04:
And Judge Phillips is correct.

[00:26:31] Speaker 04:
We do kind of have this thing teed up pretty well as far as facts go, as far as the testimony and the depositions.

[00:26:39] Speaker 04:
And I think the district court is looking at that, saying, OK.

[00:26:43] Speaker 04:
And in fact, I think he even said, OK, even if I agree with what Mr. Harris is saying, on what basis do I evaluate it?

[00:26:54] Speaker 04:
In a federal courtroom 11 years after trial?

[00:26:59] Speaker 04:
In our view, that's why it's legitimate.

[00:27:02] Speaker 04:
The state files a prodigious table of contents here with a lot of unpublished opinions.

[00:27:11] Speaker 04:
I'd like to read one.

[00:27:12] Speaker 04:
where there's a reconstruction hearing where a prosecutor shows up and say, yeah, the accused was an African-American.

[00:27:19] Speaker 04:
I struck all the African-Americans because I thought they would be more sympathetic to him and less sympathetic to my professional law enforcement witnesses.

[00:27:30] Speaker 04:
Where's that case?

[00:27:32] Speaker 04:
Has that ever happened?

[00:27:35] Speaker 04:
Would that ever happen?

[00:27:38] Speaker 04:
No.

[00:27:38] Speaker 04:
And that's why we think

[00:27:41] Speaker 04:
You know, this entire process is illegitimate.

[00:27:45] Speaker 04:
The prosecutor gets to go to the storage unit, get an 11-year-old trial transcript and say, oh, yes, Dr. To Will, yes, you know, facial expressions.

[00:28:00] Speaker 04:
You know, I remember it well.

[00:28:03] Speaker 04:
You know, how was a federal court supposed to credit that?

[00:28:09] Speaker 02:
And maybe that's the point.

[00:28:10] Speaker 02:
Maybe the judge doesn't credit that, is what I'm saying.

[00:28:14] Speaker 02:
And that's step three.

[00:28:15] Speaker 02:
And that's what we're asking the judge to do.

[00:28:17] Speaker 04:
I'll leave the court with this.

[00:28:19] Speaker 04:
The real reasons, and this is in the brief, the real reasons for the strikes are known only to Harris and Drummond.

[00:28:30] Speaker 04:
Because they conferred, this is their testimony of the deposition, they conferred with each other.

[00:28:35] Speaker 04:
They made no notes about it.

[00:28:38] Speaker 04:
They made no record about it.

[00:28:40] Speaker 04:
They had an in-person conversation and then Mr. Harris made the strikes.

[00:28:46] Speaker 04:
So no one knows.

[00:28:47] Speaker 04:
And now they're coming back 11 years later saying, these are the reasons.

[00:28:52] Speaker 04:
It's not legitimate.

[00:28:53] Speaker 03:
I'm out of time.

[00:29:08] Speaker 00:
In his argument today and in his brief, Councilor Johnson makes many arguments with respect to Batson's step three.

[00:29:18] Speaker 00:
And that exactly proves the point here.

[00:29:20] Speaker 00:
There needs to be a reconstruction hearing where a district judge can listen to the testimony of these witnesses and make credibility determinations as to Batson's step three.

[00:29:34] Speaker 00:
And another thing I want to point out really quickly is that these hearings happen all the time in habeas cases.

[00:29:40] Speaker 00:
And as this court is aware, it takes a while for habeas cases to get to the federal courts because of exhaustion under 2254 and everything like that.

[00:29:50] Speaker 00:
So there is naturally a passage of time in those cases.

[00:29:54] Speaker 00:
And in Cleveland versus Brown from the Central District of California, we have a gap of 27 years.

[00:30:00] Speaker 00:
Yet there was still a successful reconstruction hearing where the habeas court was able to judge the credibility of the prosecutor.

[00:30:09] Speaker 00:
And so a reconstruction hearing should absolutely be held in this case.

[00:30:14] Speaker 00:
So I would respectfully request that this court reverse the district court's grant of conditional habeas relief and remand for a reconstruction hearing.

[00:30:22] Speaker 00:
Thank you.

[00:30:24] Speaker 03:
Thank you, counsel, for your helpful arguments while argued both sides.

[00:30:28] Speaker 03:
The case is submitted and you are excused.

[00:30:32] Speaker 03:
This concludes our business for today.

[00:30:34] Speaker 03:
We will stand in recess until nine o'clock tomorrow morning.