ag d p a place a premium on trying to confuse the facts and confuse the law so that the argument can be made that there's no clear a clickable president and therefore that the federal courts should just throw up their hands in face of the case i think there's really only one reasonable reading of the facts in this case the juror three who was the foreman who was speaking on behalf of all the jurors expressed frustration to the judge that  number nine was expressing reasonable doubts juror number nine was not saying that she was trying to apply her previous experiences the facts of her previous experiences she was merely saying that she had reasonable understand that i can't take facts outside the evidence what i'm saying is that it rings true to me based on my experience and so i think that the focusing in on exactly what her concern was her concern was that she thought that the defense counsel the constitutional violation the constitutional violation is that what the judge the correct i think the correct response for the judge would have been for him to say you must evaluate the evidence and determine whether you have a reasonable doubt taking into account your own experience however the extraction that he gave here i think is remarkably similar to the instruction that was given in head versus heart growth which described which was rejected more than one hundred years ago this judge said in part you're not to use the facts of any other experience in determining the facts of this case in hard they said you must determine the value of the services rendered from the evidence has been offered from you and not from your own knowledge or ideas as to the value of such services i think those destructions are very similar the reason that it recreates a constitutional violation in this case is because i on the reasonable doubt and told juror number nine that personal experience wasn't a proper basis for reasonable doubt and mind the defendant's right to have a jury decide have the prosecution necessarily include bringing their common sense based on their own experience to their evaluation of the case this constitutional right to carry trial exactly the constitution here by think it is relevant in the in this stablish in the overall context but when the judge focused in on what her concern was she said very specifically that she thought defense counsel's comments were worth counsel's arguments about identification were credible and that she felt pressured by the other jurors to make a rush to judgment and not to work through a valuation of that evidence and i think that the what the trial court did that was improper i weighed in on the side of the rest of the jury rather than telling both of them look we know that it's a stressful situation and each juror asked to evaluate this evidence and come up with a decision for themselves about whether there's  have a reasonable doubt about these identifications i think what the judge did you see intervene in this scale against that worst juror number nine not to consider the basis of a reasonable doubts and then in the process took away record is the reason she was so emotional is because she felt like everyone was ganging up on her she said that people were saying oh god and things like that under their breath every time she expressed her reservations so i don't think it was for her emotions were affecting her because of her evaluation of the facts i think it was her emotions were affecting her because she felt ganged up on by the rest of the jury prosecution has a burden to prove beyond a reasonable doubt to all the jurors that he's guilty she was expressing strong reasonable doubts based on trial counsel's evaluation of the factors relating to identification she felt ganged up on by the jury and i think the judge joined more in your honor eric broke will from the attorney general's office i guess i see the facts differently i see the facts more the way the court of appeals saw the facts i see the facts more in the way that the district court in this case by the facts and i don't see juror nine expressing reasonable doubts but i when i read the record and when i read the opinions of the court of appeal in the district court what i see is that sure nine was upset with the fact that the rest of the jurors wanted to rush to judgment in fact she says that and she was stressed because it was going to take her more time to come to a decision in these cases in this case juror three was the foreman of the jury and from what we can tell from the record was a conscientious foreman and had apparently gone home after the first night of deliberations and tried to figure out a way in his own mind that they could get through these seventeen eighteen nineteen charges of robbery more efficiently and to me that means faster and maybe when he presented those ideas to the jury the next day some of them like that some of them didn't i mean they are we're going to know all that may be true but it doesn't seem to have to do with what where the focus is in this case at this point which is that at least part of the concern with her which you're three expressed was that she was bringing up this former experience and she explained that that was part of why she was thinking what she was thinking but there were other reasons as well that because she had thought this before and then the judge gave her some instructions and that's what we're dealing with all right well the judge told her not to consider the facts of her prior experience her prior victimization to determine the facts of this case that's all the judge told her and that's proper kowloon not to use the perks of any other experience in determining the facts in this case which is consistent on its face i think it's simply just a corollary to the instruction that all the jurors were given to decide all questions of fact in this case from the evidence that was received at trial what does it mean that you can consider your experience but you can't consider the facts of your experience well and her star she was hit over the head you know that is how much she was talking about i mean as i understand it what i one one way that i can answer that is is by saying that maybe she could consider her own experience and her difficulty in identifying the perpetrator in her case but maybe she shouldn't bring those facts out and start in determining never which is what you do which is as a juror you determine the outcome of the case so when you're not the facts of your experience in determining the facts of the case that means i don't know the difference between that and not using your experience in determining the facts of the case well of my experience in determining the facts of what i think you can see i think it was still allowable for her to discuss with the other jurors her concerns about eyewitness identification and that many of the witnesses in this case said i'm one hundred percent positive this was the perpetrator and certainly all the evidence points to the fact that he's a perpetrator but she might say you look you know nobody can ever be one hundred percent certain i certainly wasn't in my case but in her case the police she said she was really stressed out by the police trying to force her to make identifications the photo lineup i think it would have been improper for her to assume that all twenty seven witnesses in this case who were asked to identify the defendant either at a photo lineup or at a live lineup were pressured by the police to make this identification and that therefore that identification with somehow le s credible or that they had some amount of difficulty because of that stress that just because she felt that when she was pressured by the police and this this particular jur had a very emotional time deciding this case as just this prison pointed out if she may have had a very emotional time when the police were pressuring her to identify her own attacker i think it would have been very improper for her to assume or to argue or to bring up in deliberations yeah my own personal experience was police pressure everybody when there was no evidence in this case however my personal or protected strain of jury deliberation and the question is white and i don't think it did i'm i'm really running short on time let me give you my answer real quick when he sent the foreman back and after he talked to the foreman on the second day deliberations he said look you need to give this juror an opportunity to express her views and told him that some jurors take more time to decide the case and then others think he didn't challenge and i don't think juror the jury the other jury members but that she pressed by the trial court and she admitted that she still felt that she could deliberate that indicates to me that she was still deliberating she was still making her views known to the other jurors and that she did understand the trial court's instruction that her views were still relevant in the jury room and that she was still expressing those deals now her views on witness credibility and eye witness credibility certainly at the at the start of deliberations are something that the other jurors wouldn't want to confront her on and certainly there's going to be a lot of give and take when you're in the jury room that's stuff that the jury needs to talk about and it's stuff that evidence from the record that we have as brief as it made me are issues that the jury was talking about in this case  that's part of deliberations certainly when we allow a jury a deliberate we don't just send them in the room and ask them to take one vote and if they don't agree it's done you know these are credibility issues issues the fact that the jury needs to talk about and the jury needs to decide these credibility issues and certainly when one you're feels that some of the eyewitnesses identifications may not be as credible as others that's up that the jury needs to talk about that's what we have evidence that they were doing here we have evidence that the jury process worked in this case that the defendant in this case got a jury that was totally deliberating witness identification credibility and important factors he was not deprived of his jury trial in this case now he wasn't in pack he had a jury that deliberated a half day a full day a full day and another half day for three full days which is all he can ask for and also down i believe the court's questions actually show the difficulty in this case is that there's no way to distinguish from the court's instruction between what she was allowed to do and what she wasn't allowed to do the proper purposes of her deliberation and improper purposes i think that shows why the california court of appeals decision was unreasonable in this case and i would encourage the court to look at the reasoning of the california court of appeals page forty two of the excerpts of record what they did they sidestepped the question that this court is posed and instead they say again speculated well she may have been assuming that because she was on the head they were quite on the head here or she may have assumed that the court and the police pressured the jurors there because she felt pressured but she specifically said that's not what concerned her what concerned her was the closing argument of the council about identification and that in light of her own experience that seem to be cr her i also think that in terms of the fact that the you know the argument that they continue to deliberate when the judge when the court came out again when the second day when she came out the court again reiterated in obviated in a less direct way it's concerned that she shouldn't consider factors outside but in this case she said well they're giving me pressure about my prejudice about this case is that based on your assessment of the facts of this case or outside factors going back to his original instructions so i think the reinforced his statement to her that she shouldn't consider her past experience i think unless the court has questions that the vs hargrove case shows what the scope of deliberation is this court decided that case recently and post civil cases in criminal cases so it's not like this definition of the scope of the jurors deliberation is something from the murky past that cite it now and again when when there's a question about whether the jurors considered improperly considered extrinsic evidence which was the judge's concern here or was just bringing their own experience to the case so i think the effect w say well you may have those doubts but those doubts are improper and you have to have other doubts if you want but i don't think that it was what i think the issue in this case was is it was improper for the court to say that that basis of her doubts about the