good afternoon my name is although one of those jurors mr hattaway stands out because he said he had a bias and was never asked nor actually stated that he could put that bias aside and the impartial counsel to where he was a friend this i recall of the public defender's investigators i would think a lot of defense lawyers would not want to ask questions and would want to keep such a juror on just because somebody is a friend of a public defender investigator is likely to occur the whole lot of things about how bad the police are and how unjustly a lot of defendants are treated and how bad a lot of the d a s are in just the sort of  to you hear if you hang around with defense investigators well those were not the only people that he hung around with and i think that that's one small fact in a mountain of other evidence that mr hattaway stated on the record which  your one sixty four he was asked if you could hold the government has been when they have any preconceived opinion of any incident like this i think so if there is any benefit of the doubt it might fall on the state side and not on the defendant's side and then he said that he thought if you keep a clear mind then the judge said we'll explore that later when defense counsel comes back she characterizes what he had said earlier this is on page one seventy three of the record mr hattaway one of the things that you mention is that sort of on the ground all things being equal you might go with the prosecution's portrayal of events is that a fair statement of your feelings to answer that would be a fair statement she goes on to say are you willing to hold the prosecution to that higher standard has the answer i believe i could that's a statement by the way that other courts have found to be equivocal but then you follow that up it gets better i believe i could i just said i had a bias it's a testimony result and similar type circumstances there may be a bias there i haven't but i haven't heard the testimony so i really can't say the problem is that our climate is that for dear doing very good that his counsel was ineffective in developing the record because she never once asked him if he could set aside supposed to have a bias against people people but the problem is that he says he has a bias that would favor the prosecution's version of events and he never backs away from that you never backed away from that and the best that it gets is that when she he asked could you follow the instructions he says again i proof so they have to present the evidence i'm misunderstanding you i don't think that he ever gave what's required of him is to give an unequivocal statement on the record that he has no bias shooting people that's not always you just to you're supposed to have a bias against crime it's just that the impartiality do under the constitution is toward the defendant in the prosecution in the case not as to whether you think  the law should be followed that's not all that he said your honor he also said i would favor the presentation by the prosecution and when he gave his final and final question could you provide the standard he said yes but we ha salazar where the juror expressed a biased and according to the government and the court said that he could follow the court's instruction and that wasn't enough that was not a statement he could be impartial and everyone agreed in that case the premise of the case was that jurors should have been struck for cause that's basically what we have here i do want to talk about your cristela because i think that he is the easier he definitely has a bias it was mr frist tell us he was the nevada highway patrol employee the hughes of shooting at two nevada highway patrol troopers in carson city who worked for the carson city office nevada highway patrol that is where mr cristela works the supreme court established for purposes of i would accept that a persona was a highway patrolman but i thought he was just a computer operator used a computer operator and that still disqualifies him what judge justice o'connor talked about in smith versus phillips was a person one of the extreme cases prizing implied or inferred biased would be an actual employee of the prosecuting agency and i think you we have a double whammy now only do we have someone who is an employee of the n patrol which is the agent the law enforcement agency that referred this case to the prosecutors so they're just one step away from being the prosecutor themselves but we also have the n h troopers are the victim and witnesses in this can and sure that he will be impartial because it's impossible in that situation or it's so close to impossible that that's why we infer biased i do want to differentiate this case this court said and also that bank employees disqualified even though they actually said that they could be impartial and those bank employees didn't even work in the same office now there's a difference in the sense of concern that the bank employees are sort of in the line of fire of a bank robber ingoing and outgoing in the sheriff's office that he was the city manager that he was indirectly in control of the public defender's budget that is not a journalist with a comfortable striking he also ends up being the foreman of the jury and he said i record and then the council simply didn't do that here finally under a pistol and we have the counsel saying in the past conviction hearing that he wished he got rid of them he was less concerned about that don had a way but clearly there's no never on the record i mean i have a lot of jurors were i practiced law in a town of thirty five thousand in the town ninety thousand and area that's marketed to by the town and  when i wanted to keep somebody on there was nothing on the record because i didn't want the lawyer on the other side to find out well i'm not jurors are in fact fired well i guess the problem with mr purcell is that we are inferring bias as a matter of law and we're doing it for the very precise reason that this court has stated in all steps and at the supreme court has stated itself serve on a jury that is involved in something in dealing with your family you don't need to be asked about that and no matter what you say i'm you're you would i'm sure try to be as fair as possible it's impossible for you to be fair in that situation this is a very long this goes back to  versus well this goes back to the bird case certain people are incompetent to serve and an actual employee of the prosecuting agency which is what we have here with your cristela and we have not only the prosecuting agency but this also connected the victim witnesses all impressed with that defense counsel's argument that presto is an employee of the agency involved and as a practical matter has to go back to work with a bunch of cops after  if somebody for shooting two of them well that if if that's what the evidence comes to if i may your honor the prosecuting agency in this instance was the carson city district attorney's office  answer to that question in terms of why should we implied bias apply implied bias under the circumstances well because the relationship is removed he's not a family member and when he goes back to the highway patrol where does he work he works the graveyard shift i believe with two other people so it's not as if he's afraid afraid of walking a gauntlet of patrol troopers who are going to be glaring at him and asking him you know how could you possibly quit this guy that's simply not the case so if i were charged with a crime it would be ok if my secretary was on a jury well the secretary works directly with you this once again as you usually don't have friends and kill employees shot and set on set on the trial of the person who killed them mr for stella didn't go through the highway patrol academy mr there's a case in point that's really analogous on this press tell us situation well i think defense counsel for the case involving the bank tellers and the similarity there was they're doing the same work they could identify  someone who faced a situation of a bank robbery or here in this case if it was say well i didn't make my question clear you're giving me distinctions and i want to know a case that goes your way you look at the factual determinations that were made by the state courts and they're entitled to a presumption of correctness that the people who were there at the time thought that the jurors were being honest and that there was no problem and later on if i don't think there's a problem being honest i think answer the question is the bias yeah but what specific findings were made with respect to the past i think that you would need to want to get to show that there was such a relationship that a person could not set aside any preconceived notions they have and all these juries were asked that because i didn't state my question correctly what kind of findings were made  have or during the time or die he didn't have problems with that you're a selection that once again we have the problem of hindsight his client was convicted so later on down the road of course you could say well geez if i had a chance  perhaps i should have done you know this in terms of asking for for cause well i think the question may be a little more subtle than that it's not necessarily where we were on direct appeal considering that's perfectly preserved whether or not we think elsa was in or not striking those jurors either attempting to buy cars or through a peremptory challenge so what this record tells us what the strategic choice was to keep those jurors on the jury once again i think there's five felt that i touched upon that sometimes there's nothing on there no i said well sure but he we're talking about the evidentiary hearing on havey it's not that not of of course of course at the trial yet as judge kleinfeld said you would never necessarily unless you had a batson exchange that disclosure reasons for keeping or challenging a juror or asking are not asking questions but on hey this ineffective assistance of counsel challenges of course if you look at the questions and around ten thirty two for example except for the record ten thirty two you've got a situation where the defense attorney is or one of the defense attorneys  s no reason to raise a challenge because so by the absence of that i think that shows that he doesn't feel that he needs to make that challenge because he feels that the jury that's going to be seated well will be fair and impartial and all these people have answered the questions that were put to them by the court and by the attorneys so whether there isn't anything on the record on and then one might be delving into speculation at the evidentiary hearing on t v if i suppose the nevada state government had reason to ask the defense lawyer garfield's case why didn't you challenge chattaway and then you could get an answer like well my investigator was friends with them and i knew i had a way was actually good for us and why didn't you challenge press stella and he could get some answer to that they probe because once we knew who he was anything he said it wouldn't have mattered whatever more you could say it's all the reason that i ask my question is sometimes their answers like oh a defense lawyer might say yeah i know the person i knew that the person was a policeman or jailer or one thing or another were usually program from but actually i know this guy or my client knows this guy and  we knew based on the relationship to be good for us but i gather nothing like that happened then the evidentiary hearing is serious that's correct there is nothing like that with respect to hataway and cristela the closest that it gets and he  his merits with the other jurors i challenge and it was silly reason but he did have a reason which is that he thought that well because she was divorced from the guy that was sort of in the past but he didn't have no reason to get away prosecution but i could be fair well there's more though there because for example on page one sixty four of the records he says that his father was the victim of the crime where he was shot five times there was no follow up question did were the people actually handed where they i believe in the part of the hearing where he had reviewed at least the portions of mr hattaway used mr hattaway portion of the record where count where the state is talking about the earlier portion  thirty two that was part of a different discussion where they were trying generally about pretrial publicity and did you think the jurors were being honest and he sort of said like i didn't have a problem with them being dishonest sort of a slightly different conversation that was happening earlier on the record this is the part where he's actually talking about has said that having a biased or the jury is structural error and if there's no bias or on the jury or if were then talking about possibly different jurors that's the scenario i can't predict if there's no bias through there then we don't have a problem that's not an error there's no prejudice right but i think if there is a mistrial to argue structural error because there are some say his case was was fairly overwhelming there was a lot of evidence against my client that it was also clear that he just was not going to and we also have six jurors on the jury who had heard about mean there's just a there's a he was clear from the outset he was not going to get a fair jury and it was partly because they had these very biased jurors on the jury and i don't think that's structural air and that's where the ineffective assistance collapses particularly because we have