it would not have are the one that my call my colleague filed was filed with the opening brief i know that there was a great number this is the ninety nine case number for the court of appeal so there was a great deal of sending it back coming back so there was far more than thirty five days between the number ninety six so that statute applies so that main focus and i think the simplest way of looking at the facts in this case is to take a look instead of the california court of appeals decision that's a gathering the trial judges  oir in interview with the jurors it's very clear looking at the facts as horrific as they are in this case that this court's resolution the jury by his client had already asked regarding that the request for a read back so that we knew that they were focused on whether there was a sex offense and they were they were asking questions that said i want to hear mr coveralls preliminary hearing testimony i want to hear the officers testimony i want to hear it they actually asked for a police report which they didn't get because it wasn't part of the evidence they were focused on was this victim was it a felony murder they even asked a question and my timing is that it happened so i'm not positive but they even asked the question i think was in the morning during the inquiry into this misconduct about where does the special circumstances question about what happened on these other people and then it doesn't come to light until monday while they're in they've been having serious questions and discussions about that so when the trial judge is faced with m is that you know they point out and i think they find that she was not honest about that specific part and the judge in the trial judge and i prefer you understand it better than i do because you're a trial judge normally he's  it's time when the other jurors are focused on the sex offense so by her being less than standard on that point it may not have been a conscious effort it's kind of dealing with my seven year old when she's done something wrong you know the first thing is well that's morning our john mcclane get the attorney general you're on the front on this issue but with respect to this all of the the trial court was was the one that had the opportunity to look  we can't consider that and and and you can easily understand that that was embarrassing and then and then to have it further go have the court pulling her in there and the united states supreme court in mcdonough and this court the record suggests that there's anything in the record really to suggest that she was partial in some way or like some of these cases sunny and so forth where there's some suggestion that that maybe this is a juror that 's not telling the truth because they want to stay on stay on the panel that sort of thing so i i think that under the circumstances without any thing in the record to suggest that i think that the the questions that were coming from the jury on on on thursday and friday i think it's impossible to speculate about what that what it was they going through there was there was a question that they asked on they asked for a reread of some testimony on thursday afternoon they indicated on thursday evening that they had reach verdict as to what has to one defendant and then friday afternoon they asked for a new verdict form i think it's just impossible to speculate on what was going on in that jury room but one thing that the record does is clear about is that each and every one of these jurors that were brought in and assured the court that it would not impact  the verdict that they could keep that evidence out of their consideration i think that's the only thing that's really clear from the verdict and i think that the trial court had to have the opportunity to look at the that is not enough i think what you have to do in this is where you cannot rely solely on the eve of the state court of appeals or the trial judge factual findings is the court has to make independent assessment  look at the nature of the defense that mr addington presented and the state of the evidence the evidence this thing court of appeals prejudiced analysis was simply there was overwhelming evidence of guilt these kind of cases usually friend six pinpoint down through specific times so you can make it a more independent assessment just here it's all over the place you've got each of the prosecution witnesses talking about different grouping