good morning i'm philip brooks appearing on behalf of mr moore said the certificate of probable cause in this case covered all of the issues that we raised in the petition before the district court but unless the court has some other direction for me i'd like to and believe in jury nullification where appropriate the court followed up on this and asked mr black well then if i were to instruct you on the on the law of california and you were to find that go against your conscience is it reasonable for me to assume that you might just obey my instructions or not follow my instructions and mr black it is reasonable for you to assume that now this all took place at the jury selection part of the case before the jury obviously heard any evidence before really anybody knew anything about the case other than perhaps what the charges were in the case when in the words you're with that have been  you would have been satisfied with the interrogation i'm sorry when in the war your processes would have that fleshed out sufficient so that whatever the judge needed to  further of your black would have satisfied your your great theory actually your honor i don't think it could have been fleshed out sufficiently in the jury for your process given what mr black's  stated frame of mind was now if mr blair it made a different statement if he had said i don't like american courts i don't like the courts of alameda county and i'll never vote for conviction in these courts i mean that would be another matter but what mr black is sitting in this case it's more of a theoretical or hypothetical possibility and by way of analogy i was trying to think of some analogy here and it occurred to me that i might go out on the street and come to  intersection where i want to cross in there's a red light there on the red light stays red and it stays red and it stays red for fifteen or twenty minutes and obviously something's wrong with the light and it might be that a policeman come up next to me and i would say something hypothetically like  if i have to wait another ten or fifteen minutes for this flight i may just go ahead and cross against the light but i would say to the court that at that point i haven't committed a violation of the law i'm just talking about a possible violation of the law that might happen later  on similarly we might think of a man who might say i can envision a situation where things got bad enough i might steal food in order to feed my family if they were starving obviously that would be a violation of  did it but at the point we're talking about he's just talking theory he's talking about something that might help with hypothetically happen in the future now deliberations now after all the evidence has been presented so different from our case and your knows what the case is about he sees that the prosecution wants him to convict the defendant of having unlawful sexual intercourse with a minor statutory rape and the jury had a some kind of an ethical problem with that you saw exactly what the issue was and he had confronted his conscience about it if you was defined and he told the judge i just can't see staining this young man for the rest of his life for an event like this now under a situation like that because the california supreme court found that the trial court was within the law to excuse the juror and substitute an alternate but it seems to me that the situation here is very different because mr black has not yet confronted his conscience about this case and for all we know once he sees what the evidence is as for what the laws you'll have no problem in the liberating and performing all  clearly established united states supreme court law or an unreasonable application of and it's our position that and that's why i think we ought to look at the think what the court of appeal said of this case and because i believe that it satisfies that standard these the court of appeal said that mr black's in answer to the court's follow up question provided fair warning that he might not follow the judge's instructions that hundred ninety five where we see that it was a very very close question indeed among the united states supreme court justices whether even if they had a juror that insisted on nullifying and they knew that he was going to nullify whether it be appropriate excuse that accepted that that's the law that the u s supreme court has laid down but nevertheless they continue to point out in case after case that the jury is the conscience of the community that stands between court of appeal opinion or in the williams opinion that it relies on or studied by the attorney general i think i think it's accepted that the u s supreme court continues to recognized this function of the jury so your argument would i would take that position but i would take the alternative position that we don't know mr black was that kind of a juror in this case and so it was him because clearly no holding in the supreme court this is the form that you right and at the same time i mean that's what's so interesting about this issue to me your honor is that at the same time the court makes the other statements that it does you know that if a juror does decide to nullify he can't be punished for it the number five just didn't like the drug laws and the just wasn't going to vote to enforce them period and so after an inquiry like that our court system allows that you're to be excused for cause  court should do under the circumstances yes if anything yes i think that it's hypothetically possible for a juror to give an answer during border that would disqualify him for instance if the judge in this case had gone further and said well mr black was there anything about this case that you know bothers you or you think it might lead you to exercise that power and if he said well i just i would never convict somebody in a case where it depends on the testimony of an oakland police officer period i think that would be a disqualifying vice but i think i just can't thank you  i don't know if this makes things and you clear of it just to kind of to refocus what my position is here it's our position that the law does not allow the trial court to sort of make a preemptive strike against the existence of ella fine potential  disqualified from ever sitting on another jury although his comment might be equally applicable to any other case on which he might sit but he can't be stricken from the jury roles in the law doesn't permit that he hasn't come to the point where he  shown that there's anything about him that would impair the performance of his duties as a juror either in this case or in future cases would like just to add one or two other points  i don't know if there's a limited thing to me for there but it may in in the garden case the court the u s supreme court has shown us that the two things sort of exist at the same time number one the defense is not entitled same time the jury ultimately is the one that has to decide the guilt or innocence of the defendant and they have to do it by finding the facts listening to the law given to them by the judge as think it's a it's sort of the core question of this case but i think what we have to look at and say first of all does you have to say i will follow the law as it's given to me by the court regardless of whether it conflicts with my conscience that that's another question or you know the what if you follows the lot of the best of his ability let me include the application of his conscience there's a quote from one of the cases if i can find it here  i guess it was i think it's from case but it was remarked that the jury are perjured if the perfect be against their own judgment although by the directions of the court for their oath binds them to decide according to their own conscience and judgment and they're supposed to of course listen to the instructions of the court and be guided by the instructions of the court and be educated by the instructions of the court but ultimately the jury's verdict rest of you according to the jurors conscience that's what it's they call a jury nullification perhaps it's sort of a negative term but that's what the laws about so i don't mean to try to avoid your honour's question but it just seems to me that from all i've read in the u s supreme court cases it seems to be acknowledged that part of the jurors oath is for the jury to follow his conscience position that that was not unreasonable at all now if you're black volunteered this information on the very last question of the jury questionnaire the questions that is there any matter that might affect your ability to be a fair and impartial juror and that was the question to which you responded i recognize and believes in jury nullification then the judge asked him on board here do you would you agree with me that if the law went against your conscience for whatever reason that you wouldn't follow the law and the was a juror who indicated that under certain circumstances he might be willing to modify the circumstances are specified and i think it's probably a good kind of yeah that someone who says right up front i'm willing to mollify is likely to be somebody who will be more favorable to the defense side and most of your average jurors and the judge is taking of off the jury not because of that directly and that would be forbidden but because he has if i can use the word disclaimer unwisely admitted that he knows his power but i think you're absolutely right that that would jury and i certainly don't think that happened in this case when the evidence has not come out yet even though there was a previous trial in this case it's always unclear how the evidence will come out in a particular case so it would simply be impossible but even if it could be done i think it would be unwise to try to formulate some kind of a hypothetical that might not take into account every situation that would bear on this individual germs mind that's what the court of appeal said to and in the trial court even said we simply don't know what might affect this particular juror so in light of that again we get back to the definite impression and under the circumstances there was a definite impression in this case that the juror would not be able to follow a law that the judge really had no choice i think  to get expert consultants and the like because if they don't then bring them on to say something their silence will be used as an effect of mr culpability i think that's of troubles and disproved by the fact that in this case the defendant what it hadn't had the experts well that's a non sequitur because he didn't know at the time ie are the experts that giving the materials call his or her experts in the fields for her investigation i don't know the answer of whether it's routine or not i know there is a ninth circuit case but i cited that the name escapes me at the moment but it was a similar situation in a and that griffin is essentially a personal right to the defendant in other words the prosecutor can't comment on the defendant's right to remain silent but any logical witnesses that the defense doesn't call  whether it's a family member or our first being witness or an expert they always run the risk that that person is going to say something favorable to the prosecution and if they're a logical person to have called in then they don't call then the prosecution can comment on on cases or similar scientific cases and they give an equivocal answer so you know the prosecution may put them on because that's the best they've got the defense may be in the same situation i'm going to just go