from mishaps representing mr marshall so we've lost our thing i want to argue issue number one which is whether trump court abused its discretion in you know you keep talking about it every now and then you throw in your brief and i just thrown it in here this is what i call light motif of the fact that he was the only african american juror but you're not raising any claims that relate to that really are you not they truong should have been a little bit more sensitive to that fact before excused that you are without first allowing some input wait a minute did told counsel what had happened counsel approached the band and expressed great concern that they only african american own the jury had been excused  that was specifically used when by approached the band and it was pointed out that they juror who is being excused is the only african american if you're going to have to understand i mean what is the now what would have happened differently had the judge called the lawyers and said the jurors called in and they're that that that's you don't need at the hearing at that point to evaluate whether the jurors are actually able to come in and you don't have to require doctors that the court has a lot of discretion in that regard here we have the only african american on the condition jury it is not clear that a brief continuance would not have allowed him to continue to serve and the fact that he music skeet used without allowing the attorney to question whether or not he could have continued to serve after a couple of days  sense really bats and is actual a although certainly it's different on its facts but the underlying premise of baps and f trial counsel got up and made the point that this was the only african american juror and that juror been excused and if the court said well i know all that and then he said or do you think the court says do you think that mr know was is is spending illness well the answer to the question instead of i don't i think  no i'm not questioning the factual basis for the excuse why isn't that when the point at which this appeal is no is no longer viable because you have to show prejudice  the prejudice depends upon if the juror was discharged without factual support or for a legally irrelevant reason that's the standard for prejudice and if he's conceding that there was factual support in his answer to the court then and it's not legally relevant then you lose well it's not sufficient it was in every one of the case that the government cited in the cases that up well almost every case that the government sided then the cases that i've read and every one of those cases the court had something before other than a brief conversation with the juror now the juror who said well they had to have blood pressure problem a critical juncture the trial we're good we're in we we're dealing with jury composition something that people have fought hard from the beginning of this trial to these men were on trial for their lives your honor and these men have fought these a lot more than their lives one hundred forty three years well it's a it is the it's essentially the rest of their lives locked up and that that was clear from the get go in this case you have another issue is that i do is  ineffective assistance of counsel your honor there's no record in this case there was never any record in this case there's a lack of objections in the in the record and especially on this matter the fact that we're up here even arguing of of even hav if there's a if the record is sufficient the court can entertain an argument of ineffective assistance of counsel and articulate what is an effective piece was from the ineffectiveness is that there is a lack of a record there's a lack of of two the judge asked if the juror could continue and he said he could not on the advice of the jurist doctor judge control a properly excused juror when the judge told counsel no one did not cause prejudice as this court has has expressed it which is to be found only if the juror was just charged without factual support or for a legally irrelevant reason that's found in in this court's decision in virginia marino quoted in our brief page twenty so there's no basis for showing that a change in the composition of this jury would have had any effect on the facts of this case when the proof so overwhelming you have in this case proof from so many sources including the totally uncontested proof of the cellular telephone you help in moving the vicinity of the bed it arriving at the same time as a bank robbery takes place and then going back to the children area that is compelling proof of one of those occasions you've got keel and marshals telephones coinciding at the time of the bank robbery but of course you've got mitts on whether it's a better practice to bring the lawyers in maybe get the person conference call the court reporter for them to reiterate their situation and let them ask marshall was subject to a mandatory minimum of twenty five years each the judge required to run those consecutively so partial senates as to those accounts alone total of one hundred years that's leaving aside entirely judge properly found that job or called in sick he did not therefore abuse is discretion the question is whether or not he had a  jurong are as opposed to determining whether or not a continuance would have been appropriate at that point that's a legal question and of course the standard of revie have coming together here is it which is a little bit different from the other cases you got a combination of things that come together you got day absence  and not being allowed to her baby or you have a situation where is the only african american juror are and you have  it straps now there is a case where they actually have locked the man die on because he was so stressed out about the drug and clearly under those circumstances the man would not been able to come by and mississippi until nineteen sixty eight i turned twenty one in one thousand nine hundred sixty six so i might be the only person in this courtroom was excluded about law from serving on a jury jury and i'm still a little miffed about its except for i just want to point out that being excluded from a jury is important to people that case the court had a record in this case the court has no record the court has a very short colloquy between the defense lawyers and the court with regard to what the judge said that the juror said at that point  i don't know whether the it is our position that it was necessary to for further develop the record in order that a legally sufficient reason could be put upon the record so that we wouldn't be here arguing this to bed the fact of the matter is is that counsel's failure at the trial court to make a record is what constitutes the problem with court of appeals could look at the note and this case we have we have none of that we don't have the opportunities that were i'm the problem with your argument is that in order to make a record of the sort that you fat in the record who the physician was i know that united states district judge in the southern district of mississippi can probably get the physician to take his call and he could simply ask the in the presence of counsel could simply ask the physician and get some kind of medical diagnosis to get some kind of scientific medical basis for excusing the juror and that would have been it something other than he tell me to be off my for a few days which presumably is more in tune less than five and the other thing was if he asked me if he could continue but aren't when you say that that is a supreme example of monday morning quarterbacking when nobody suggested any sort of yes i have a question about that i mean that was the proper way to make the objection or i want to mistrial something but we don't have that judge and that is right and this was at a critical juncture of the case one thing about which there is no question you got a red