revoked and who had been barred from treating women treated women and was later charged with sexual misconduct in particular sexual penetration by object during the course of the battle examination there are three issues that were raised three bases by which the district court reversed the state the issues that i'm presenting here  assistance of counsel claim the case that this particular attorney confronted again involved he said she said and also medical board said the medical board said that is license is revoked and that he is barred before the revocation from treating women that's what the defense attorney had before that's what the jury was going to hear that his that the defendant's license was revoked and that he had been barred from treating women what the case involved jason volved two women who charged him with sexual misconduct any jury having heard that he was barred from treating women and that his license was revoked and then hearing two witnesses or two victims claiming sexual misconduct would have assumed something that i think all of us would assume or infer from the board proceeding and bored conclusion and revocation of a physician's license the defendant's attorney had to confront this he had to confront the fact that the jury was going to know that a license was revoked and that this particular position with barred from treating women and he did that's using information that the jury would otherwise anyway have learned about which is that there were claims filed by women against him with respect to vachel examination and how does the jury at the time th was complete plagiarism of the claims filed by other victims or other claimants in connection with the revocation proceedings there was very little downside the jury knew he his life had been revoked and had been revoked in connection with his treatment of women he was the defense attorney in this particular case was trying to capitalize on what was obviously going to go through the jury and he was also going t to establish for the jury by means of the testimony from the from the defendant the position that the relocation of his license did not result in sexual misconduct unfortunately there was an cases internal affairs findings and civil rights cases work counsel for the plaintiff is always trying to introduce the result of the administrative determination in an attempt to influence the jury by arguing that well if the administrative agency found in my client's favor then you should choose and to follow up on such canby's question isn't the case law pretty clear that that's that that's impermissible i can't think of a circumstance under which a trial court would ever admit the result of an administrative hearing where the same issues are now being tried to a jury by perhaps even a different standard of proof that may have attended the administrat the end evidence was being presented to the jury about what was happening at these proceedings and i what it's the ultimate legal conclusion that that that counsel is trying to introduce from the administrative hearing that he wants the trial that opening the door to the fact that he had been restricted i guess no that's already in judge but but you're saying and the inference would have to be that because the board found that he had engaged in  any kind of sexual misconduct in fact even the district court in its order refer to the fact that the prosecutor mentioned in passing during closing argument that the medical board downside from of the fence attorney attempting to do that to present evidence that yes there were many claims filed and that those claims are being ripped replicated implicated repeated here by people who want and are suing the defendant to make money and that's the only place they got these claims from the claims they're in their inferentially the jury knows it's tech it's been polled he's been barred from treating women the defense attorney tries to turn it upside down and make it that making beneficial to the defense every judge other than the district court viewed that strategy said under the brooklyn standard if you assume that the judge in the trial court the trial judge starr a trial attorney was reasonable or try to do what he was supposed to do but you also that her to the state court determination of the deference oh to presumptively valid state court determinations you cannot defeat a state court determination of fact unless you can show by clear and convincing evidence it was wrong and if i'm wrong and reclear in convincing denied being biased shows that the witnesses against her may claim that years earlier a decade earlier she had made some unflattering remarks but they couldn't even they couldn't even remember what the context was there was a  eight investigator who read from his notes and said something about that she said something she denied the trial court said i don't know if she really said that maybe it's something that he wrote in his notes characterizing what he understood she said but he believes her and not the other witnesses there was a credibility determination here and the district court not having ever seen a single live witness determine credibility adversely posed a serious issue which was disregarded by the state court what's what's your response to it was not disregarded by the state or just plain not true it's not true you read the record of the for the court the trial court looked at  testimony with regard even though standing alone they might not be sufficient cumulatively i find that that she was not credible what is your position with regards to what a federal court can do in reviewing factual determination there must be some instance in which we can look at state courts factual determination and conclude that it is clearly erroneous specific inconsistency is in the record that does not support this case because it was the trial court the superior courts factual determination sure if the record shows a clear and convincing evidence  an evidentiary hearing in order to listen to evidence that was developed or could have been developed and or should it was attempted to be developed in state court and to to see whether that evidence rebuts by clear referred to extraneous brought in extraneous knowledge outside the record outside what was already in it that i think is an issue of law we have other issues where you know that when one of prejudiced because although the state court court of appeal go to the merits of the actual claim it essentially found that there was and raised the before the other jurors apparently the i r s i guess when you get the prejudice it seems from what i what i think maybe the district court was looking at was the fact that the basic complain in this case involves sexual activity by the actor against these two women must the consumer most of the hours in a week and at by the hand and i suppose he in light of the overall prosecution it was the issues again raised and commented on were not issues in dispute during the trial the prosecution of the defense   i think however the harmlessness finding a bias of the juror harmless is a particularly difficult thing to do and has starkly it has admit during voir dire that she worked with them at the at the nursing home she didn't know that and she did however she denied and she she said that she had worked with him and passing that there were contacts with the record of this hearing really shows the on reasonable ness of this the exact comments that you are just pointed out this juror claimed that for the first time at this hearing the district attorney investigator had gone out to see her two weeks earlier she never said any of those things however it was worse than that after hearing i asked her did you tell this and this is right in the record did you tell this to the district attorney investigator the very things your honor just asked me about that you had this acrimonious interaction with the lacy that you resigned because of that and she says i'm sure i did and the district attorney investigated the man who had been sent out there to bolster the prosecution case to find out from her own why ms de lacy might be saying these things got up on that witness stand five minutes later and said she never told me any of those things she never said any of the things your honor just asked me about now the district court looked to the reasonableness of disregarding and make no mistake about it in the trial court absolutely disregarded that district attorney investigators testimony the district court examined napper reasonable ness why on earth with the district attorney investigator get up and misrepresent what the jury said  the witnesses the d a s investigator had to be impartial and unbiased because he had no particular axe to grind he was trying to bolster the prosecution's case how can a federal district court do that in the absence of actually hearing and seeing the witnesses when the superior court judges have the chance to see them both and to do what the fact finders do all the time i believe her but i don't believe him i mean it's not unheard of for police officers it's not on her to get ready it's not unheard of for police officers to lie or forget things it is anomalous for a law enforcement officer whose job it is to bolster the prosecution case who was sent out to talk to this juror for that very purpose to get up and lie to the detriment of the prosecution now he did not forget anything he did not say he forgot anything that the the district court was looking at the following things his job was working for the prosecution he was a fifteen year law enforcement officer he had no motive to fabricate attorney investigator testified to that that this juror told him two weeks earlier when he interviewed her that in fast she has known the defendant that in fact she remembered him that in fact she thought he was odd that no one really cared for this guy when she worked with him and that that was her opinion of him now the district court was troubled by that because that alone all of which she with held on for dear never told the trial court about that alone is cause for serious concern about the impartiality in the bias of this juror who wants a juror sitting on their case who thinks that the defendant or weird who doesn't care for the defendant knows him already doesn't care for him that's a problem a big problem worse this juror got up on the witness stand and this is the district court saw in black and white on the transcript when i asked her did you say those think the district attorney no i did not each question now the state keeps saying this in oral argument they've done it today they do it in their brief saying well maybe that was some kind of a characterization maybe she didn't remember having them to the district attorney investigator her answer was my trust in money is that i did not say those things she said this team thing about the things that your honor just asked me about a moment ago i'm sure i told him about these petitioner was odd she no one ever cared for him very much and that she had not told him anything about a falling out with ms de lacy or having resigned because of or an angry telephone call with ms lacy this morning had absolutely no reason to as we have a factual finding by the superior court judge that jury was essentially consistent throughout the story that she told the minivan finding but under all of the hard cold reality that comes out in this transcript this juror has been anything but consistent and that in fact she had misrepresented what she had said the district attorney investigator time and time again the district court then looked at the totality of this which is his obligation but isn't the real solution if you've got that kind of a dilemma as the federal district judge on hevia street view to call a hearing and have does he have to do it absolutely not in the in the face of these kinds of contradictions that make no sense the definition of unreasonable is if we can square this can we look at this record  of it in terms of defending that state court finding and the clear cut answer is no we can't there's no reason for this man to get up on the witness stand contradict this juror there's no there's no way in investigator more over the district court was the first court and i remind your honor that these statements about earlier courts making these findings if the inquiry ended there we would never have a b s review district court looked at the totality of this juror's represented nations and this quote unquote consistency this is the same juror who committed misconduct in the jury room this is the same juror who testified who told the district attorney investigator that she told the trial court about an illness that she had that was debilitating when in fact the record clearly reflects that she never told the trial court about any of those things this is the same juror who lied to the that this german juror was not biased was simply unreasonable it can't square with the testimony that was student of love what about the fact that the testimony that was actually introduced at the trial essentially bolster her characterization of a lay person on a jury without regard to nursing background after listening to the frequency with which he gave these injections conclude or speculate that he may have been giving something to them b into the jury room and tipped the scales provided a result of the misconduct or as a result of the evidence that they heard from the experts who said there this was not proper medicine as there were four experts two of them said that it was proper venison two of them said that it wasn't it whether or not it was proper medicine dependent guess the problem i'm having with your extraneous characterization is typically when i think of something being extraneous it's something that gets brought into the jury room that never occurred in the courtroom whereas it seems to me and i think this is what the state of pella court found that an awful lot of what you  the the jury heard conflicting evidence as to those things again assuming that their credit and i think we have to certainly given the jury's determination we have to ever no expert said anything from which you could draw that inference that he was injecting something other than as well i guess that's the question this fall i mean i don't see why that's such a leap because she said that if you with an insulin needle it would cause irritation that none of these witnesses testified to that's what she told that jury no expert ever said that no expert said you couldn't inject it that way no expert that you can find that nowhere in the record and the state will not be able to point to anywhere in the record where anybody said anything about your attention being caused by injecting it in this way from there she suggested i injected them appropriately i treated them appropriately i treated these people more often than not once a month periodic late only once did he ever admit treating someone as much as three or four times his credibility very similar to the sunni and cases in which the credibility is determined by the misconduct of the jurors when you add that to the evidence of biased in this case to the lies that this true and there's no other way to characterize it the lies that this juror told at that hearing the district court really couldn't get away from its responsibility to decide whether or not this was an unreasonable determination of the facts below was going to thank you your honor first of all is the tactical decision to bring in all of this other evidence i think that that is an error and whether the states is wrong there was a stipulation of the prosecutor argue again and again and again that the medical board have rejected the defendant's defense that it made essentially the same finding and rejected his position and then in fact the medical go back to the last comment by counsel there was no statement by the prosecutor that the medical board revoked the defendant's license because of sexual misconduct there is nothing in the record that says that nothing by the prosecutor as for the other issues i'm only about a minute and a half and i'm only too happy to respond to any particular question that this court may have if we have anything further if you have determined based on the credibility of the witnesses that heard that the juror was credible there was no hearing in the federal district court on this issue and there is no way that a district judge any judge little messiness in the report and that the report itself if you look at the report if you look at what was said it does not clearly and unequivocally defeat the testimony of the jury the fact that the