person hammer stated that she could convict the defendant the stress could be on prove less than beyond reasonable doubt now defense counsel tried to strike her on multiple occasions to try to remove her from the jury and he asked for additional because the first thing that jumped off the page when i read this as a former state trial judge is you didn't follow the path that you have to follow when a cost challenges do not which is strike that person brant surely and then say you ran out of strikes on other people and left somebody on the jury who should have been on the jury and you all didn't do that right i know you have an argument about that's being that's way that just answer that you all didn't do that you don't do the sequence in texas law that's correct i change ok and then your argument on that is they want to sort of waive the waiver if you will by not raising it in a timely fashion so that's your are right there trying to get to a question so it would be sure i understand sure there's actually our first argument is not the waiver petition they said that there was no constitutional merit to the claims therefore the last recent decision was not on the procedural bar and therefore this course should proceed to the merits of ok do we lack the power to consider with a particular plane reaches the merit it removes any bar to review that might otherwise have been a bill show in other words because the state court actually went to the merits and said that there was no constitutional merit to ask to be those claim over a lot of more dire as were lawyers get up and ask these incredibly confusing and convoluted questions that if you world the way are you would understand but no one else would understand and that's kind of how this comes across to me where he's creating this clear and convincing evidence and then the reasonable doubt and trying to create this dissonance between the two and the jurors aren't seeing that they're not seeing that difference but they're not saying that they would have a reasonable doubt and still convict so then that's the part that i'm having trouble with is how can we really show the notion of a bias juror this isn't someone who says yes i've already decided you're guilty this is someone who's struggling with very poor questions that are really very confusing well judge james i would disagree that the jurors were all confused by this in fact the vast majority of the veneer panel understood the question and they said that they could tell the difference between beyond a reasonable doubt which the state of texas does not and the next highest standard clear and convincing evidence and in fact this procedure defining the lower standard and then asking jurors whether they understand the difference and would hold the entirely appropriate because beyond a reasonable doubt is not the fine for trial counsel to try to make sure that the near members understand the government's burden of proof by defining the lower standard and making sure the whole the government to a higher standard but the confusion on the jurist klara to mean the question i would have is would you refuse to follow the judge's instruction that you must find mistress could beat out guilty beyond a reasonable doubt that's the question now prematurely i might strike these people sure but the question for cause is that i didn't see that ass now i could have missed it i went through all of this more dire stuff and i may have missed something that i didn't see understand what the what the pros the defense counsel was driving and most of them did say i understand you know the difference beyond a reasonable doubt and they're convincing evidence and in fact and most importantly here jurors who some of whom did appear to be confused the misnomer is the only one as judge james getting back to your question here she was the only one who first said that she understood that beyond a reasonable doubt required a very high standard of proof something more and then during that whole acquitted she says but i still could convict on less than that standard and despite that there was no  her there was no preemptory used against her and obviously i was nothing trial counsel and i can't explain his precise trial strategy but part of the issue was that there were fifteen jurors who expressed some degree of confusion to follow instructions and all of that and would convict on a lower and yet came or was left on the juries and that's different if one thousand people are confused than that strikes me as going back to my original point which is this was confusing and i thought it was confusing you said no could have used a preemptory strike on her truck counsel may have believed more jurors were problematic and therefore that it would have been impossible endeavor we can't know exactly what the targets were but the point remains that hammer should have been removed for use mean illustrate a bunch of legal points to the jury not a good idea but in any event so he said miss haynes could you please define preponderance of the evidence and i said it's whatever the judge defines it as i'm bound to follow the court's instructions and not my own thought or knowledge of the law and the judge back me up on it as he kept pressing me the lawyer kept pressing the judge said miss haynes is correct i tell you the instructions and so it strikes me that the jurors saying i could convict on you know probable cause if that was the jury instruction that the guy that would be correct so that's why i think this thing about would you follow the court's instructions is so important because  juror saying i could convict on any standard it is actually true that that's different from saying i wouldn't follow the standard that the judge gave me but your honor in this case this colloquy had been going on for quite some time twenty two confusion in the first place by bringing up this idea and saying we are going to have to prove this case to beyond a reasonable doubt and the government said that is much less than beyond a shadow of a doubt and that that was way in excess of what the government had to prove so in essence the government gave a sort of instruction to the jury about what it's proof would be and so defense counsel was left in a position of having to kind of clean that up and clarify do these jurors understand what beyond a reasonable doubt is and will they hold the government to that burden of proof and so the defense counsel began by saying you know the state beyond a reasonable doubt is the highest one the state does not define but it does define the next one down and in fact during the voir dire the judge actually did issue an instruction saying i will instruct you to you know apply the standard beyond a reasonable doubt so you know other words the jurors were were well informed of what the correct standard was but the  indicated and any way shape or form that she was unable to she was unwilling to apply or to follow the court's instructions on the burden of proof that she didn't the question didn't specifically go to will you follow the court's instructions but the formulation is essentially this is what the court will instruct you do you understand what that is and then will you apply that so there is kind of a there's a missing step or there's not a direct statement but her response is to then give no impression she was unwilling to follow the course instructions she didn't say that but she didn't say when when told the court will instruct us would you apply that standard she where counsel lays out the three standards of proof and then the specific back and forth a paper begins at page five twenty of the record and then she says the facts would have to be awfully high for me not to have a reasonable doubt counsel clarif the question i'm asking is if you have a firm believer conviction which he had earlier explained was the clear and convincing evidence standard is that by itself enough for you and she says it depends how the facts are coming out and how i believe because like i said i don't know how this works it's going to be left up to the fact he says he tries to clarify it and then she says if i do feel like he's guilty yes there could be reasonable doubt i'm not saying that i'm completely ruling that out and then trial counsel clarified so that's her understanding beyond a reasonable doubt and then to clarify he says would you find the defendant guilty merely by having a firm believer conviction that the allegations against him are true she says right i could yes i could to me i could is a little different than i was in this i mean you're parsing this awfully finally so we're parsing it awfully funny like you're saying this is a structural error that gets a new trial based on this as you're well aware of in your process is always a little bit messy it is very rare that you would have a statement from jersey say i will not follow i would never follow this seems to be one of the clearest statements you could however it's not true it's not true these questions go back and forth we've all been there they go back and forth and when counsel is there sees what's happening counsel's trying to lay the predicate to put the judge in a box you've got no you know without five looking at each word it could hear there's some confusion but i think that it's important for the court to look at the broader context that is what the prosecution said first defining the standards what defense counsel said trying to set those three levels and then look into the differences and the fact that this coffee happened twenty three or twenty two times before him it was question and so she understood what the defense counsel was trying to get at and she didn't define beyond a reasonable do alleges here arises from a jersey personal antipathy towards the law not his ignorance of that law supreme court made this clear in adams or texas and wainwright the way in which the supreme court focuses on the jurist personal views not correct your honor the supreme court expects that jurors are not going to be experts in the law and in fact it says in this court says that an essential feature of the jury is the interim position of the commonsense judgment in tolerate jurors being unable to express themselves carefully or even as consistently as as patton fiances and so also what we need to look at here is that r hippias review and so the trial court found that there was no bias and so what you need is clear and convincing evidence to show bias and this court has held in most cases that in order to show that you need an unequivocal statement of partiality something like like your eyes are speaking of somebody saying actually no i i refuse to apply that law for somebody saying i think criminals get off too easily and i think you know i think there should be a lower standard and i'm just not er found here is that you didn't have bias what you have was was confusion and the transcript for dire gives the source of this confusion now my my my colleague here points out that there were twenty two jurors that th were asked this question but what he doesn't mention is that during this time of tissues counsel defines pyramids you have this at the beginning twenty two jurors later he gets to his hammer he never reiterates the definition never never gives any further  explanation of what he's talking about so it's not as if he held up the clear and convincing standard and the reasonable doubt standard and and his humor said well i'm only going to apply the clear and convincing evidence standard what happened here was he got to or gives her her own lately conception of what beyond a reasonable doubt is is to her she says first well if it would require an awful lot of facts for me to be on the other reasonable doubt that's correct and she says i could think that he's guilty and still have have a reasonable doubt and that's also correct and those those answers are nearly identical to answers given by previous jurors that the petitioners cut then you had this exchange about that you could have a reasonable doubt and still convict in or would you do that in that she said i could well be right no am i being too technical by saying could is different than wouldn't well it's you had even more than than that your honor and so the counsel for previous church accepted those mean so and so you do what you have here is you have a clear and convincing which equals a firm conviction on one hand and beyond beyond reasonable doubt which this court has said means firmly convinced i mean those those are not easy words for for that's why texas doesn't define it well it's not just texas but the supreme court's as you know you don't have to find it and not only that the supreme court has says that that attempts to to define it normally do more harm than good  what we're doing here is we're just we're we're leaving it up to the commonsense judgment of of lay persons but let me ask you this if we were persuaded that actually she shouldn't have cost john should have been granted and should have served on jury would that be structural error or would it be something else but i would i would submit that it's not your honor this this court has held that personal bias against a juror is structural air and in that case the court said that it's clearly established by by the supreme court that is in fact not correct i think as as as judge joan went through him and her concurrence and also be davis and showed that in fact the supreme court has never said anything about your bias but that that is the law in in this circuit it's a split from other circuits there's no reason to exacerbate that split by by applying structural error to this other form of of german not liking the law right which is which is in effect kind of a illegal error it's it's it's akin to an incorrect jury instruction which is not structural error and the only i will concede that that that the supreme court has held that incorrect reasonable doubt jury instruction is a structural error but later the court expressly disclaims the reasoning of that case in in nature see that they have against me i'd like to think and maybe i'm just kidding myself but that for eight years when i would look at yours in the eye and i would give them instructions and i would say this is the burden of proof in this is this and this is this that they would follow that in my experience was that i mean i can remember a jury that deliberating for two days and afterwards a juror told me they were crying about probably at about an approximate cost and so obviously they took it seriously and so we assumed that and so does that have any play in this that had ms that ms hammer sitting there whatever she thought before when the judge looked or not said you have a reasonable doubt you can't convict certainly there are follow that and my colleague points out that that the judge during our dire interrupted and gave the reasonable doubt instruction no that was after miss him it was question so there was there was no there there so as as i said the jury instruction saying you have to go higher than thing clear and convincing evidence he had any doubt about the confusion he didn't do that there's no there's no request for any sort of sort of explanatory jury instruction here and so the when we accept the jurors will apply their common sense will take their jobs seriously and will follow the court's instructions we we trust that even if they they can't express themselves clearly that that they're not biased unless there's an unequivocal statement that there is simply no under political statement here and so now they cannot show clear an know ratchet in because you know reckoning i mean i was a trial judge and and while we didn't have a thing like food circuit pattern it was an instruction you know given in t you're trying to get into it if you're trying to get a personal biases and that might affect that then you've got to ask something more probing than just you know can you be fair and in any way right be with the court says that the burden is on the correct if the judge says you can't convict if you have a reasonable doubt would you nonetheless do so mean to me those are the questions and they weren't asked but i don't hear your counsel opposite says you know i don't have to ask it quite that clearly to win so i unequivocal statement this court has never held that that something like this can show juror bias ok let me ask you a no i'm sorry i was going to ask a separate different issue about the  merits and what that goes to is the fact that it was forfeited and so you can look to the state hippias opinion and find a procedural give up there and when a court relies on both you can rely on on the procedural now the fact that this was not raised in in in the district court or in the earlier briefs in in this case is is of no matter because this case because because this court can raise  if this well ok so why should we as assuming argumenta we have discretion that aren't required to consider your argument about what i'm calling the sequencing why should we exercise o the briefing is that this is not a particular close case that the merits of of this case are clear and so that was the focus of this case although i will say i'm not i mean if you know when to take an account of a user the technicality is not the first time  a government would argue a technicality and not the first time a technicality would win on either side so i mean it i'm not sure it's a pure technicality because this is an important sequence that i relied on as a trial judge i guess people make a lot of challenges cost challenges this and that and whatever and you're trying to deal with a lot that's moving at when you're doing a more dire is the judge and so you want to be sure that this sequence is followed because it gives the judge another chance to kind of take a look at oh my gosh you're singling out him or maybe i need to think about that again it's better so it's not merely a technicality it is kind of important at least in my head for what it's worth when i was a state trial judge your honor we would never  filed simply to address that this issue had never been raised before we did hear before a discussion of the procedural bar that's a very complicated issue gets into tech issues of texas state procedural law it gets into  whether he had cause for the default so in other words there was no fair and full briefing which would have happened that begun by the state in order for us to have a full opportunity for that now i just wanted to very quickly touch on the structural error issue this court established that the supreme court used the denial of the right to an impartial decision maker is such an error in addition the supreme court in martina's salazar page three sixteen said the district court's ruling the results in the seating of law and i'm not sure that's the same thing as advised you're a juror is confused and there's a lot of good views jurors and the role of the courts and the lawyers is to try to clear up that confusion as a trial goes on and so forth the judge has to give clear been confused ignorant whatever let's use all the adjectives except someone who says i refuse to follow law take that adjective out confused and ignorant so that structure what your honor are we would submit that durham it was not confused because she are focusing on if we were to conclude those nearly every evidence to confusion so i know you don't think she i know you think she's biased in the sense of refusing to follow up fine but that aside let me ask a hypothetical of jane the confused with that was not a death penalty case or actually it was a death penalty case but the court explained that the witherspoon line of cases this says that if jurors don't apply the law they are unwilling or unable to do their bias the court and when wright said that that was broader