mostly on the jury misconduct that occurred when the single juror who felt strongly that this was no more than manslaughter went home one evening and had three improper conversations during which he asked for advice should i follow my should continue to follow my conscience or should i abandon my conscientiously held belief this is only manslaughter and go along with the majority that was the essence of the question that he asked he asked he had a discussion with his wife he told he went to a friend's house and he told a friend about the evidence that yes the jury deliberated nearly five full days before finally returning the verdict the first four of those days juror allman held out steadfast thought they were deadlocked that further truth deliberations was not produced a verdict so they took a statement that all men had made about the cost of incarceration for life and they reported it to the judge in the hope that the judge would disqualify all men from the jury and the judge returned an instruction saying don't consider that matter and that was it and so that effort to disqualify him  the presumption of prejudice to be rebutted in this case relied on two facts this is the first fact they said that the fact that he was uncharacteristically choir it in the afternoon of the fourth day of deliberation led to the inference that he was perhaps free press beginning a process of changing his mind and since he was beginning the process of changing his mind prior to that evening mental defenses all that improper communications was harmless because he was already beginning to change his mind before that encounter i had problems seeing why that was on reasonable and it seemed to me that what the california court of appeal was doing there it was the exercise they have to perform under california law it's different for most states law in federal law and that most states in federal you don't care you don't want to hear what went on in the jury room california they examine it but even with that we have a case out called seahawks seafoods where we it was one of the exxon valdez cases and we carefully examined what improper conduct with respect to juries and found that the authorities distinguished extraneous gets a new trial only if the party seeking the new trial shows actual prejudiced and the reason for that is that in trials of any length there are always six party contacts it's just a question of when they find out about  and this looks to me like it's a pure x party contact case not an experience like evidence case and that it doesn't look like any big deal i mean what he hears is what all of us have heard on the radio for thirty years about technicalities letting criminals go and this sort of thing and big deal well your honor i think there's i think the court of appeals was unreasonable in that because he was quiet the previous afternoon that rebuts the inference of the prejudice from that improper contact that night because if you argue vociferous possibility is you figure waste of time talking to these people another possibility is she you know i'm not so sure myself anymore and they're drawing a second inference but i think but even if you draw that cumulative error i think the court of appeals was extrinsic evidence but not good enough for expert well no i don't think that's correct your honor what we have here clearly shows actual prejudice because it's not inconsistent between the beginning of a reassessment and then he goes home and he gets a kick in the pants he's told hang them why would he solicit these opinions from people who are going to tell him to hang  is manslaughter or should i follow the majority i think the reason i think it's impossible to know what my conscientious belief is i'm not likely to ask people whether i should hold onto it it's if i don't know if i'm shaky or changing wouldn't that would be totally unreasonable that would be totally unreasonable to interpret the record that he had already decided one hundred percent to change his vote before he went home that night because why would he ask her advice for reinforcement may not simply follow the majority so he asked for advice whether he should violate the court's instructions and he any got advice from three different people and these aren't just people like the bartender or the restaurant guy completed the process if he was three votes for guilty that he presumably got from his wife and two friends influenced him and we have to assume that they were influential or he would not ask for their advice because that's a reasonable assumption i'm thinkin suppose you take it at that particular case this context to just look at this one factor that you're raising this  suppose somebody changes political affiliations from republican to democrat or from democrat to republican is likely to feel very uncomfortable about it because he feels like he's betraying his former beliefs former associates he's probably going to seek out a bunch of prejudice your honor i thought it was anything but here's here's the quote i have from ram or at page two twenty nine any private communication contact or tampering directly or indirectly with a juror during the trial about the matter pending before the jury unquote is deemed quote presumptively prejudicial and placed a heavy burden on the government to rebut the presumption by proving that the error was harmless beyond a reasonable doubt so i think the presumption of prejudice clearly applies under the united states supreme court authority in rammer but but here your honor we have a situation where he goes home and he asks for advice kill again you've got to vote with the majority you have no right to go against the community standards as represented by the majority that's number one and number two says you've got to convict just then and over use mental defenses to mental defense issue there jury refused to convict refused to find true the robbery murders special circumstance that was the focus of the state's theory of the case with i think that that special that doesn't really happen as these are bad in that manner and any you know i mean any time you kill people in your family you know i think most people assume yeah there might be some money be found prejudicial is just common sense i think that where the juror goes home and asks for advice and gets the advice and follows the advice the very next day on the very next  that's the prejudice clearly shown here and so on reasonable to me i mean very often you ask price for somebody to tell you to do what you want to do anyway  which i think is your strong point i'm wondering whether what the supreme court did in rouge and versus spain and smith first just felt both of them their ex party contacts and the court that the that would then have the opportunity to prove that there was some harm or could be harmless to our work and i'm wondering if that muddied up grammar and maddux enough so that you can say the california court of appeal acted contrary to order and reasonably applied that i think that's a very good question i think the distinction between russia and our case is is that in russia jazz brought all the jurors there and and questioned them in the serve their demeanor and made a factual finding no prejudice and because of the testimony and their demeanor historical facts concerning the germans conduct are uncontroverted and the law in the ninth circuit marino versus vasquez at page five zero four says that where the historical facts are uncon factual finding entitle to a presumption of correctness under twenty two fifty four so all of the cases ninth circuit cases that followed russian marino versus vastness is that a group of appellant page thirty eight you about the jury misconduct and russian was an applicable and they applied they said we do not get for to the court of appeals legal conclusion no prejudiced that was based on uncontroverted historical and that's twice in the space of human experience let's say he was beginning to rethink its position but he had not made up his mind yet whether he was going to hang in there or change and then he goes home and the three people say on i know that's a little overstated but one of them said hang on and the other is said similar convict in various ways and then he comes and that pushes him further and then the next day the jury spends the entire morning not in gauging in true deliberations any more they're trying to kick him off the jury again they spend three to four hours  these jury misconduct cases certainly of the type that are here my thought on a logic is that it's kind of tricky directives the rule however in order to to follow or reasonably apply or not act contrary to supreme court authority the state court has to follow what the supreme court says is a presumption arising from the constitution  arising from the constitution is that normally the constitution with the certain exceptions doesn't talk about rules of evidence and distributions of burdens of proof other than the basic kind of young reasonable doubt and so it doesn't talk about doesn't generally talk about the mechanics of how a state court is to jury in this conduct and that's the problem i have with with the suman that there's a split out presumption because the lower courts seem to be because there's a fair amount of hearsay in it and the hearsay it's not the record it's statements of the it's not recorded statements themselves but it's the fact that it came in through a against the interests of this group of the the state court never came out and said specifically what parts of his declaration were true and what parts were not true and they sort of the soon that it was true and they found that to say these are the allegations and then this that's something about well the declarations show or they as you talk to people and then he came into the jury room the next day not really clear from the opinion that they really found everything that he said is my point is the argument is based on the assumption that everything is true and what i'm saying is that the court of appeal to not find it true and i don't think that this court did not specifically find that it was all true and they they suggested that what  found to be true was only the fact that he had the conversations and came back and what i would suggest to this court is that this this court rely on the court of appeals statements  that what happened was that he talked to other people who came back to the jury room but i don't think that this court would be reading more into the opinion than is really there if it assumes that everything that was in the that our arguments are based on the facts as found in the court of appeals decision we're basing our packs on the court of appeals statement of facts i don't see there were three declarations one from the holdout two from convicting jurors happened the night before the idea that that's going to have zero effect is totally unreasonable the only reasonable conclusion is that the juror was feeling the effect of all of these different forces including illegal forces and there is certainly a risk that the illegal forces that are conceded by the court of appeals had a substantial and injurious effect in causing him to change its vote the very next day the very next to a vote thank you thank you