controls the disappearance anyway of six o six or at least takes away that obstacle six o six the federal rule that says no impeachment of the jury verdict can occur and pena rodrigue said if there's a clear statement of racial animus racial stereotyping racial prejudice that that known pietschmann rule has to give way so it had to give way here because you're a nine was adamant his racial upset he was so upset he would not even deliberate he turned his back to the jury and but there's another thing that i didn't in knight briefing i was concentrating so much on six zero six this is an epic case  number one twenty two fifty four d one the state court never ruled on the whether nine was biased they concentrated on his effect on the he persuade other people and they their conclusion was they'd already decided when he had his tantrum he had a rant and factually so but the problem is i think that you can approach this totally de novo that's b s lawyer once in my position wants you to look at it de novo without at that and i think you can based on the fact that there was no decision by the california court of appeal on the bias of this jury that's number one then moving on to twenty to fifty four d two they they've really slaughtered the facts in this case badly by saying that the number nine did not have any leverage on any other jurors and that's totally not true now substantial evidence there were said that but the point is that this this whole the only reason we're talking about this is because juror five who was a convicting juror he made no bones about that he was for conviction he was so upset by what happened in the jury room he wrote a letter that started all this off to the court just a few days after the guilty verdict came down talking about this biased juror and talking about how he bumped at least one juror off their not guilty verdict that that's just i mean that's not substantial i'm not asking you to reweigh the evidence i'm saying in the substantial evidence question you look at the whole record when you look at the whole record and you look at this especially juror five but he's part of the whole record he started this whole thing off there isn't substantial evidence that nine did not affect the holdout jurors so i think i think you can decide this de novo under both twenty two fifty four d one in d two and then the other thing i haven't talked about enough in even in my briefing structural error if he was biased forgetting about him having an effect on any of the jurors that's structural and that's supreme court that's that i have a big it's very clear soloing versus louisiana when you have a biased judge or a biased you're it's structural and i there just i i think the the court has no choice but to reverse this and i'd like to save some time good morning your honors may please the court deputy attorney general christopher beasley on behalf of the f l e pena rodrigue as does apply i agree with that and six zero six b the general no impeachment rule does give way in this case and did give way in this case in fact the trial judge ended up listening to six different jurors talking about the deliberations talking about what happened talking about what are nine said talking about how it affected them so that it did not affect any of their deliberations and therefore the whole six or six discussion that mr corey has just brought up really is a red herring here because all of that evidence was brought in projects considered all of it so that that's not really an issue mr corey suggests that the evidence says that juror number nine would not deliberate well that is completely contrary to the evidence that this trial judge took from the six jurors that came in and talked about the deliberations yes at times he did have his back turned towards the jury but every single one of those jurors also testified that he did contribute that he did raise arguments that he did talk about the fact that he did indeed contribute and did indeed deliberate beyond that every one of those jurors also talked about how he didn't intimidate or influence anyone in  in a negative kind of way there was no evidence on this record of any sort of misconduct on the part of juror number nine now the statement that he made where he suggests that if the races had been reverse if the victim had been a white boy and the defendant had been black that the jury would have reached a verdict faster the journal and i did say something to that effect and it may have been somewhat inarticulate the way he said how you're feeling when you consider what he was saying he's inviting the jurors to examine themselves examine yourself are you allowing sympathy for the defendant to influence or cloud your judgment that's not racist not being able to come to verdict yeah i think that's i think that's a fair representation of his of what he was saying in his frustration but i think for him the record in this case the  overwhelming he saw this evidence and squarely saw that this was a murder and he wasn't the only one there were at least eight other jurors in need that initially that agreed with him and there were three that were disputing quibbling over the evidence and violation is just a technical no so the juror there were three that's correct your honor there were three jurors who did not see the evidence the same way as the others and as they continue to deliberate two additional two of those jurors as the jury as the jurors talked about their arguments against a guilty verdict were thinning their arguments were basically of operating as they continue to deliberate and consider the evidence and two additional jurors then decided you know it's true we do have here a a and at beyond reasonable doubt finding for guilt and then when the last juror was seen the writing on the wall in the last year was basically saying it's obvious i just wish there were some other way that's the point at which the butcher number nine made the statement suggesting that that if the races had been reversed the jury would have reached a decision sooner that doesn't suggest that this was a that this juror himself was racially motivated or biased against the defense and nor does it suggest that he improperly influenced other jurors as the record shows the jurors consistently said no we were we were able to this burdick independently we want we weren't intimidated we weren't we weren't influence so when we take the record and look at it as a whole as the trial court did and as  state courts did there is no finding of bias as to journal nine and there is no finding of misconduct as a journeyman i improperly influencing the other jurors the state court reasonably got it right state court did it wh it was supposed to do and based on these facts reach the correct conclusion and we would ask this court to affirm the district court's judgment in ninth the writ and if this court has no further questions the people would submit all right  everything in there is probably right but i'm stuck with six or six so the worst that i can do is have you remand it i don't think you need to remember it but the district court did not decide this based on the bias of nothing in fact no the state court of appeal someone has to point out in that opinion where they ever said nine was unbiased no they never reached that issue that was not decided that's the point they they dodged it so did the trial judge he never ruled on the bias of nine it was all his affect on the other jurors if you've got one biased juror under supreme court of the united states law you don't have a conviction you have a reversal and structural error there's no doubt about that and there should be no doubt here thank