hundred ninety five with a hearing in front of judge reed who was the trial court at that time it was not just an ordinary hades proceeding as you can well imagine your honour's this happened afterwards because your honor i'm not here just representing the bakers or the unsuccessful petitioners in hades i have to say that the real brings the court to its feet and from a hardened criminal that has sat next to me at counsel table to the humble citizen that sits for jury duty there is that special moment where the court takes the bench and c into session judge read spent long hard hours investing hears good offices to ensure that there would be a fair trial in this case petitions that was the law that is the law there was a ninth circuit detour somewhere in the middle there but that was wrong under the law at the time the petitions were considered by chief judge edward c read the law on the ninth circuit permitted the court to consider the application for i don't care when you consider them his consideration is not my to file your petition and in september of one nine hundred ninety seven this court correctly ruled that your filings short of filing the petition if i have my facts right you didn't go ahead even after september one thousand nine hundred seven when that was the law of the circuit you still didn't file your have you waited the petition had a date certain which was after that date as this court has said no that's the first ground upon which the statute of limitations should be told consider if you look at the district court's order in that case considered the issues relating to the filing which i believe goes to the court's question as to whether or not a filing was considered to be at that time the court found in looking in the order sufficient grounds even though it states in the order itself a petition had not been filed now it did the does prevent corresponding requirement that the mission be considered in a certain amount of time but we were filed within sixty days of the court's requirement but women and now after the district court completed it say judge we really can't file our petition because we don't know enough about when it happened and we can't frame our constitutional corning's properly until we know a little bit more about the facts let's expand that universe rahner it wasn't just us that's the side being the petitions that decided that we wanted discovery the government and the defense and look court determined that the more officiant then you had to file with a new year and we didn't your honor that's that's absolutely correct on the record you're absolutely correct on the record during that time period neither the government nor the court nor the defense in this case had any illusions as to what they were proceeding with which was the determination of grounds with that's that's correct but equitable full aim requires that there be extraordinary circumstances beyond the petitioner's control that prevents the petitioner from well if the judge  don't file that petition until we fought until we resolve these issues regarding conflict why wouldn't that be i mean that reason the lawyer i mean i'm so far on the other end of an order like that i two fifty five petition i believe it was the united states that the brought up the issue of potential conflict in the context of the twenty to fifty five proceedings because the one year period didn't exist then no i understand that but in response to the question about equitable tolling i mean there was nothing that prevented the defendants from filing petitions prior to the year period didn't take place by the court any suggestion by the court any directive by the court short of a court order that would have reasonably live these lawyers to believe any twenty two fifty five petitions and it didn't have the conflict issue first minute i think the brought up by the government and i can understand why you bring it up and so i try to ask myself what would a lawyer do in that situation if the question's been raised whether i can represent these two dare i file a paper for the two of them when the judge what the claims are going to be before we get this petition on fire the government ever take that position what the what the court  do i'm not sure that the government i'm not sure that's just my that's right were employed only to try him at some point ninety eight the government appeared to take the position the petition had to be file before discovery yes i was really looking at the time period before that and and i can't tell from what i've looked at so far it sounds like it's not crystal clear perhaps to anyone how it was that the court came to adopt or took to require the parties to come up with some kind of stipulated discovery plan and that may be what we're all staring at why was that a year went by on a discovery effort when ultimately the decision was made a petition  after the conflict issue on may thirtieth of ninety ninety seven i was a little short circuit this a little bit maybe i should be doing this but let me ask the question clearly they didn't file within quotable tolling we've said is an intensely factually driven question true correct the district court never went there it never made that decision it just  this exploration that we're trying to go through with you from the bench here so it is never made a factual determination that from its standpoint there's as a matter of fact equitable tolling should apply correct correct what should we do about that should we resolve that factual issue on appeal in your opinion i don't believe we need to do that in this case and this is the reason why there was another minute order entered by the court on september eleventh of mighty ninety eight and this is one which now which excerpts of eight the court relates the permission of the discovery period that the defendants ripley baker and baker then have thirty days from that date in which to file their twenty two fifty five motions now that was him on september given that occurrence what what kind of what kind of case it represents i think they indicate in their brief that   determined was that there was no evidence whatsoever of any jury tampering there was no evidence whatsoever of any extraneous material introduced into the jury room that there romantic relationship would affect the jurors impartiality or ability to judge the case fairly as we argued as was argued in the very fine arguments presented yesterday this is a case based on and we infer from the circumstantial evidence that there was a romantic relationship between the c s o and the juror during trial however recently common sense did not lead us to further infer from that evidence in this case that there was jury tampering extrinsic evidence introduced to the jury or actual prejudice to the defendants as a result of the ex parte to contact between the juror and the c i so there's nothing here to raise any inference prejudice beyond the prejudice beyond the relationship itself and that's simply not enough to raise such an inference there is no evidence on which to base an inference that this juror was improperly influenced or that her impartiality could reasonably be questioned the evidence fails to show the defendants did not receive a fair trial and constitutional due process the at the case to me that seems most on point is the seahawks seafoods case which indicates that ex part for this type of contact between a core security officer and a juror that in a long highly high publicity case a new trial on account of x party contacts is likely to be no more pure than the denying the ripley in baker twenty two fifty five petitions indicated with respect to discovery that these motions do not state a partial basis for twenty two fifty five release relief discovery is governed by rule six and the question then becomes whether defendants have shown good cause for the discovery they seek we find that good cause has not been shown neither the twenty to fifty five motion or the opposition to the motion to dismiss indicate what evidence favorable to defendants might be obtained through on the the issue of whether or not they're stuck with a bill tolling but i submit to the court that on the merits of this case although admittedly an odd occurrence the petitioners have not shown that they six i'm going to talk specifically about the questions that the court has raised on tolling and one point i don't believe had been addressed and that is whether there is a provision for actual as well as equitable to is dealt with on a time basis and is subject to both application for actual tolling as well as equitable tolling and our position has been that indeed at the very least this case was actually think that there's a requirement that the statute state that it is subject to an order of tolling by a court i think instead that the statutes that are separately construed as to prohibit tolling have that language that bars any extension of time record its reasonings and process in handling this case and knowing judge read as a meticulous jurist i don't think he would have any hesitation in providing that information for this court on on further review and i think it's only fair to that district judge who is always a jurist who with the sense of justice and fair play for the parties that at the foremost of his mind to have the opportunity to explain how and why this case was processed through his direction this was not something that popped up at the last minute by counsel filing letters or pleadings it was done in conjunction over a period many years with this to that with th and another aspect of the equitable tolling that i think is it's very important because it does bear on the ultimate measure of whether this case is going to get tossed on a statute of limitations issue when we know the significance of the subject matter that we're dealing with and that is whether the government should be barred from asserting its defense a statute of limitations in this matter on the equitable series of  s substantiating the commencement of the case issue and i understand the court just agrees with with our argument and judge reads application that kelly i'm with i mean yes the court guys because the court said you've got a file and the supreme court says that's right i believe that the supreme court's decision was cited was twenty two fifty four case and i think we tried to distinguish it on its merits in our in our brief but generally ye well i think that the protections that were discussed by the supreme court in the subsection so the twenty to fifty four amendments that pertains specifically to those committed convicted of capital murder and their ability to either  with the assistance of counsel or not work for two with a requirement that the actual application itself be filed before the case is deemed to have been commenced and i know that's splitting hairs but that's what we're doing here i think and at least in good faith in our best conduct during the course of the proceedings coming down about two and a half minutes and i wanted to question you were involved in the in the conflict situation where you  the position as to the may thirty order specifically states that a discovery period of six months is now open with respect to the filing of a twenty two fifty five motion and shall remain open until number thirty nine hundred ninety seven and that period was subsequently extended in term of that's if that's what you rely on well the reason that the court judge and say don't file it that's correct and that the issue of the statute of limitations wasn't as compelling to us and having been there and done that i can s with the court it was trying to gather the sufficient evidence so that we wouldn't be doing a shotgun writ with thirteen or eighteen claims that would only perceive a tape negative reaction from the government and potential negative reaction from the court admitted them to your motion well but we represented to the court initially before the statute of limitations issue even a wrote and as before the effective date of the amendment what's the best way to handle this your honor when we've got thirty thousand pages of the transcript literally hundreds of thousands of pages of exhibits and reports and documents and with that two hundred fifty some witnesses that perhaps her change to our examination how do you want to go about this we suggest to us e your honor that you grandest of discovery period that you can supervise so that we aren't meandering around aimlessly and be focused develop the evidence that needs to be developed pre filing so that we don't have this unnecessary step of the courts ok you filed your petition now justify your allegations with offers of proof and all the rest of this stuff and we come back and say we need discovery you were trial counsel correct yes so what if you had some idea of what issues you wanted to raise certainly had some idea your honor but i didn't want to do it precisely i wanted to have the opportunity to be sure that what we were going to articulate was substantiated by evidence that we could point to then and there in support of our particular provision and i see the lights blinking if i could just have thirty seconds there's another issue that's really pregnant here and that is as a condition of our representation in this twenty two fifty five proceedings our clients waived any claim for ineffective properly and timely filing given all the facts and circumstances in this case to petition within the time period described were clearly ineffective and these clients ought to have then the opportunity to proceed to resurrect w  is mr parker yes