we have read the briefs we know what the facts aren't and i would appreciate your addressing the issue that is of concern to me and that is about juror number three what e victim of a violent crime and i also imagine whether she knew anyone from the that was listed on the witness list now it is true that journal or three said she didn't recognize the name of the detective who investigated her brother's the case involving her brother and her brother's friend but regarding whether or not she knew any victims of violent crime this would have revealed the stabbing incident the bombing and the bombing incident which was actually in her own driveway  o those questions both should have elicited that information from her but when the trial judge found out about it pate disqualified or replaced or compel them to start deliberations over with right now you want to what else what else should he have done well given that given that what she said was possibly prejudicial it triggered a requirement to investigate further and to hold a hearing and to determine what if any affect her statements to the jury had before before simply admonishing them not to consider it because the court had already but the court says it didn't find this conduct but at the same time it told them to disregard what she said if what she said had the how it's what she said was improper to determine the effect of extraneous information in the room or any other have to do with jurors bringing something other than their own experiences into the jury room we certainly agree that she should have disclosed this but but don't  those cases have to do with they when they bring in something other than their own experience as a courtroom by they talk to somebody or they've done some research well i would say in your eyes well that's well it is true that rimmer addresses that very specifically this court actually hel boy and made clear that there is no indication that rimmer is limited only to certain particular kinds of misconduct rather when there misconduct appears prejudicial there needs to be further inquiry and also this court held on several occasions that whether or not information is outside information depends on its on its nature not its source so here if a juror here where the juror was telling details and inflammatory stories of crimes that were not necessarily similar to those testified to a trial by the gang expert that was extraneous information which was prepped which was which was misconduct to introduce and which should have triggered further in i also say here that what juror number three did bye bye bye imparting all this information to the rest of the jurors was acting as basically putting herself out there as an additional expert witness against these games and saying that she knew how they conducted themselves that she had these examples to support that she knew that they conducted themselves this way and that they would kill people without remorse the evidence of what had and what one question i have about  isn't it more likely that they would have not been richt because they didn't want to incur the wrath of i disagree your honor i think what what this what had this information would have done is to inflame a jury as it typically was the driver in this case he was not found to be armed he was not found he denied knowing that his codefendant was armed and the police stated that into the record and he had never been in trouble before even  gang expert said he'd never he wasn't aware of him prior to this case so the evidence of his specific intent for anyone to be killed was very sparse and to let this juror then give this additional expert testimony about how gangs conduct themselves and how easily they would kill someone really could have what could have prejudiced my client both regard to the intent issue which was again central so juror number three have not didn't disclose it and oh no no i think that well i think the issue is two parts because she didn't disclose it during voir dire or she committed misconduct by failing to failing to say something that could have gotten her removed because at the same  time when a person conceals information on broader it then makes it impossible for those biases to be filtered out before they make it into the before they make it into the deliberation think a good example here is the case where is the case where even in four derwin witnesses kept saying that she was an expert on child or allegations of abuse and that in her opinion every time a child came forward with allegations of abuse they were telling the truth or that she in her experience rather that that was true that was considered misconduct and it was considered possibly prejudicial which again what have triggered a further inquiry here it wasn't is are you saying that if we were to remain the case back to the district to the judge to conduct the hearing of the jurors as to what if any impact this had on the verdict that wouldn't be sufficient relief for you at this time i  would say that it wouldn't if the issue here is also that there was a this would have triggered a presumption of prejudice that never was applied so i suppose to save it it would be impossible to say that this a declaration from their declaration from the jurors for person the reason that matters here is that the court cites dyke's several times for the proposition that it was free to disregard the statements in the  statements in the report due to them being on ins for hearsay and when you look at the court's language the court's language admission is the court's language sorry denying the motion for a new trial he repeatedly  harkening back to his previous holdings so it's not clear from the record here whether or not the court was saying independent of that report that his holdings were so correct or because he did not consider that report his holdings were still correct and  think that that is a reason that at the very least a hearing is required on the ineffective assistance cla would have to determine but it then i guess if you can't have a hearing on this claim it would also be impossible to say that that conduct wasn't harmless so then you would require relief for hearing is not appropriate did you want to save some rebuttal time i will i think if i put it briefly address one thing regarding i know you have asked me to focus on those two points but if i could briefly address the insufficient evidence claim i understand that there is the concern now that the double deference but at the same time it's known not to be insurmountable as this court held in quantity and here where the where the court of appeal itself basically said that it was speculating as to where the people were positioned but that they could nonetheless find support that any one was in this direct line of fire i think is patently on reasonable and therefore would also warrant overturning the conviction i mean if i if the court has no further questions at this time i will say the rest of my time for a bottle thank you thank you morning may please the court deputy attorney general michael killer for the warden and the first thing that's important in looking at the derby conduct claim is to to think about what type of claim this is there are there is the tampering towplane which is what you had rem or an outside influence coming in or maybe an internet search that's one type of your must this is this misconduct coin has to do with a juror not revealing in response to questions that she have personal experience with violent crime and specifically with this gang rats involved in this case and it would seem to me that that would be so that there would be misconduct not to reveal their information and just to me speaking only for myself once that information came forward and once the jury foreperson said this person is scared and she's been she knows about this yang not to ask the other jurors you know one by one what was said and you know can you really leave this behind just struck me as  perhaps an insufficient response so what i would say is that the intentional concealment or concealment during jury selection leads to an inference that the germy be biased and in this case if juror three sat on the jury then then then that issue would be one of bias but since german three was removed we're left with how did her comments affect the jurors who remained which is a pretty important question depending on what she said and how it affected them and we don't know because there wasn't a hearing well what we do know is what she said and we do know the context of what she said and why she said it and that's important here so that becomes a question of a juror ultimately what we have is we have a it you know if if you know if if the personal experience where i didn't tell you you know in vardy or that i actually know the three of the witnesses and they are to terrific people and i'll give you an example because you know one of them gave me a birthday party and you know those are all personal experiences but they're not proper and so the to me the question is so how do we know what a fact this had on the as to whether they felt they needed to put this bad guy away so i absolutely agree it's the question is when we look at the personal experience is it offered and when we're talking this is whether it's evidence and the problem with extrinsic evidence is it's allowing un cross examined on sworn testimony to come before the jury through one juror telling another jury something so the question is was this for instance if she had said i know the defendant and he has a he's violent ok and i hear that she says my brother testified at a trial involving these gangs and then they tried to you know then they bombed his car in my driveway so it didn't involve petitioner it didn't involve titian or his gang and in context it wasn't offered to so like if you look at the astride a case is tried a case where somebody talked about a personal experience a person was released from custody got out and committed a homicide so the personal experience of someone sharing and saying that's why i'm afraid that's one thing but in the strada what the person did the juror did was say we should convict this person of a long of the most eventually they get a long sentence that regard us of what specific words were said shouldn't we know what the other remaining jurors understood and from what she said or how they reacted to what she said whether in effect of their view of the  well it's consistent both with what juror three said and the four persons note the fore persons note said that juror three was explaining there was that there was a conversation that occurred in the jury deliberations us and feel and she wasn't feeling well and then they  and that's when she revealed and came clean right what happened so in context both of your three was talking about her own personal fear and the jury foreperson was interpret ing it as an exploration of a fear not as we should one juror that's my problem what do we one of the other jurors think but if it's offered about fear in other words i'm really concerned and here is why how i don't even understand how the other jurors could use it as deciding the case in other words it's not like this other gang committed a crime against me so you should convict these petitioners nothing like that was said or offered so there's nothing there's basically no indication of any misconduct at all and when we look at these types of situations in tracy that's where on one of the things that opposing counsel it said that that the  rammer standard in terms of what it requires to hold a hearing applies in all the different context and that's just not simply true in tracy this court said that reimers command about hearings is unique to the tampering context where the potential effect on the jury is severe tampering was not at issue in tracy's case this isn't a tampering case or rammer doesn't apply so we're left with is there any material difference between how describing the situation that occurred and the foreperson now is there anything that is especially severe in terms of what's being revealed like if she had said the defendant has a prior record the defendant has a reputation for violence no it's nothing like that that has a severe pop severe indication that there's going to be prejudice and let me ask you if going the jury selection process juror number three had stood up and said to the entire jury selection panel exactly what she said we know she said in the jury room she would have been placed on the jury agree with that absolutely and the judge then in his structures would said to the jury he did get impaneled you decide your case solely on the evidence you hear in trial right yes so the judge ultimately did tell the jury not to disregard everything juror number three said is that is it correct that is correct how do we know if the jury did that if we don't ask them well in the example that you gave if it happens in jury selection i fully expect it would have done just as you said your honor i don't think the judge would have said this jury can't the instruction won't work here i'm going to have to send up a new panel we're going to start over because this is just so prejudicial i think he would have gone forward with an admonition and this is the same type of situation  this court identified five different things that that that give us an indication as to whether or not extrinsic evidence is the kind of thing that will taint the other jerks and the first point is how was the mature we'll see appeal but we know what it was offered for both by the four person and they're in there in alignment there's now it's two of them and there are a whole lot of other people on the jury but we know we know what was said and i know victory on text in which it was given otherwise anything else would just be fishing to see if somebody else may have some other view of it and we should use it in some bizarre way and then i go to the second point like you think it's  say when when you learn about how terrible gang violence is and how upsetting it is to somebody that they won't take that into account well i think what i think is that jurors are already understand gangs are incredibly dangerous that's a matter of common knowledge i think the fact that a gang committed a crime ten years ago isn't all that prejudicial particularly given the fact that this is a game shooting and the fact that you had the expert testify the petitioner's gang the brown family not the gang involved in the prior that the brown families prim activities and thing they do all the time is shootings so i don't think it would be something that would be seen as wow this is new information about gangs that gangs actually commit crimes i think that's something that that jurors know additionally the second point that this court has looked to is the length of time something's available to the jury extrinsic evidence in this case it wasn't available to them for a very short time because what happened was george three came clean about her fear the four person sent the note zero three was removed new deliberations with a new jury and the third prong prong is the extent to which it was discussed the record contains absolutely no indication that the jury ever discussed this it in the dream so no information on that because they were snow hearing it's just i mean you're sort of bootstrapping it seems to me to say well the record doesn't tell us these bad things because there's no record that i mean that just seems like circular to me but but that would be true of every case in other words we don't no if there was misconduct if the jury discussed something they should have should we bring in every jury and discuss i mean in this case there's no indication that the they filed the motion for a new trial on this and was the was there any indication we know that that's why we're here and the four person didn't indicate that it was ever discuss i don't i don't think we should the should be a supposition that they did discuss it and at what point was it discussed not just before they reached a verdict was discussed and then that juror was excused and then the new jury and they deliberated for three and a half hours that and more than three half hours after that new jury was constituted so i think in the final prong is other matters and again that encompasses sort of the context of how this was offered this wasn't sure three saying we should get these guys because of what happened to my brother nothing like that was said nothing like that was in the in the foreperson didn't interpret it that way i would also point out that opposing counsel said at the g case again good choice is a tampering type situation it's totally different from somebody sharing a personal experience there simply isn't a supreme court case that would say that it's unreasonable to hold a hearing in this type of situation in terms of what would happen at a hearing your honor asked about that i guess the things that would and i would point out that in their reply brief she  asking today for no hearing that there should be relief but her briefing is very facile to put that genie back in the bottle here if we thought that a hearing should have been held we really don't have any discretion other than to order relief and having retried right is there anything short of that state could propose well in ram or they actually helped the hearing and it found in the district court later made factual findings and found that it was harmless so or didn't happen but there was a could have been about that ok got to thank you then you would have to find you didn't have to find the jurors if you could find them bring them in and ask them what happened in the jury room and in something in a matter that's you know ten fifteen years old yeah that would be definitely a a but a but i think that would be a little bit of an uphill slog wouldn't well it just would be yeah it would be difficult but you certainly one thing that you can't do is talk about in this case the foreperson said that in their motion for a new trial so that it didn't the fact it wasn't part of their right that that's because judge gruber points out that that was that was before person yeah didn't we didn't we didn't get into the minds of anybody else nobody else was interviewed right but this is no indication that the right because nobody else was talked to we don't we have another ten jurors who are in that room who know something about it and were not were not asked what they what happened and it is yeah maybe it would have been preferable but but it was reasonable for the court to say i can i can cure this with an instruction and the district court judgment properly applied they would ask this court to affirm the judgment but thank you counsel and you have some tempering that's a tempering case but the question remains whether or not the contact was possibly prejudicial which would have then triggered a presumption of prejudice that the state had to rebut here we know that that contact was possibly prejudicial that's why the court told them not to consider it and i think also to look to if we also look at what was discussed to do it's the question of whether possibly prejudicial can even be squared with the standard that the state trial appellate court applied which is this requirement of a strong possibility of prejudicial misconduct so when the court says there's no misconduct it's hard not to it's hard to look at it in context not to say that the court was actually applying that strong possibility standard to the entire to the phrase prejudicial misconduct as a whole not just misconduct and in finding that in holding them to the burden or holding up petitioners the burden of strong possibility directly conflicted with clearly established federal law in that regard as well i also wanted to to just note that because that prejudicial because of that presumption the issue of all the things that aren't in the record are the or the state's burden to repair at that point so just say that to say that now that it would be an uphill battle to prove that it was harmless is absolutely right it would be an uphill battle and  t it and one of this case that isn't even necessary and i think would just it would be more advisable to grant relief on the issue i just want and also i know the court was looking at a case was about ten years ago that's correct  and the last thing they did want to point out here too is that it's also unreasonable under under almost any standard to have taken the approach that the court did because the court the trial court relied solely on the statements  person who had just lied to the court about their experiences during voir dire who had spent a whole day and a half in the jury room before someone finally pointed out before someone was finally able to point out that she had been concealing all this information and then he relied solely on her statements about what she said in the jury room which weren't even really that clear to decide that there was no reason for a hearing i think if they think that's unreasonable under any standard that to to start and in the inquiry with her when she herself was already an unreliable narrator of what was going on and trying to probably protect herself so i would say for that reason and for the reasons i previously discussed the proper