please the court james thompson on behalf of petitioner appellant mr rowan your honor we've divided the arguments in the case in such a way that i will be handling the germans conduct claim i would like fifteen minutes of time i'd like to take twelve for the opening and reserve three and then mr gun will take the remainder five men remain five minutes and argue the batson claim very well go ahead miss thompson thank you in this case the issue i think is really whether or not it is a jury misconduct error for or with respect to the mc non human versus greenwood case and you know how that played out in in the the trial court there was a finding by the trial judge that juror number eleven had concealed a material fact during the course of the case and that was her opinion with respect to the death penalty it revealed itself during the  guilt phase deliberations that is she told other jurors that her opinion on the death penalty was different than what she had a had informed the court of during the jury questionnaire period of four geir when that was  revealed there was a hearing that the court held the court found that she had misrepresented the material fact that she had kept a hidden bias and that she was not candid with the court the court at that point in time went ahead and dismissed a juror on appeal the state court of appeal and then as affirmed by the california supreme court made a determination that there was not error but the case that they relied upon was the marshall case they did not rely upon mcdonough who versus greenwood they went ahead and argued on a state case now the marshall case related to a matter that involved a juror who had given information into the jury room itself extraneous information into the jury room it did not involve the issue that we had here where it is that the juror misrepresented her opinion or in her feelings on the critical issue in the case the death penalty issue yes she was excused and she did not sit on the toilet kennelly how would you have been prejudice on the guilt determination phase when i say you know unfair juror right is kind of like the opposite of the right to a fair trial what you don't know with and when a juror a law eyes to the court and lies to the parties who would have been excused for cause had she told the truth you don't know what occurs during the course of the guilt phase that she was deliberating on i mean just as kaczynski in the divider opinion sets out a number of issues in a number of of problems that occur with the with a juror who has not told the court the truth in this particular case she may very well have decided that in her mind she wanted to save the life of mr rowan and the other defendants and lied about her position on the death penalty in order that she could sit on the jury and then ultimately make a decision that would favor heard the defendants in terms of penalty but she could have held up she could have held our home the guilt phase your jury by simply refusing to  change a vote for innocence could she not she could have and the jury deliberations were long they lasted thirteen days which is a pretty extraordinary length of time i understand but i have the same concern that judge korman has and that is that how was the defense prejudiced where her bias if she had won was in favor of the defense not to impose the death penalty and i think what you're asking us to do is to overturn the determination by the trial court and the district court of appeal that because she may have engaged in misconduct with regard to her feelings on the death penalty that that somehow made her i'm not sure how it prejudice on the guilt phase of the trial she may have had the opinion because of the thirteen days of deliberations that some of these crimes  all of the crimes had not been proven but in order for her to make sure that she could allow for there to be a penalty verdict of life as opposed to death she would go along and agree with and not perhaps apply the beyond a reasonable doubt standard as suggested in dyer correctly and allowed for the determination of guilt and then made her position stand in the penalty phase i guess the problem i'm having with the argument is that obviously it's speculative because we can't know but we do have a determination by the state courts that whatever her bias was with regard to the death penalty that it did not in fact her ability to judge the guilt or innocence in the guilt phase and under the deferential standard of review don't you have to come forward with some evidence to convince us that that is a clearly erroneous or by clearing of insane evidence that that factual determination is wrong i think that that determination and i'm not sure that it's a factual determination because what they relied upon was marshall in making the decision that there was violation and marshall didn't have anything to do with the juror that lied it was a juror who brought into the jury deliberation room extraneous law so i don't think that the foundation for any of the court of appeal and supreme court's opinion concerning whether or not this juror was biased or not biased has ground mr thompson even if it's a mixed question of law and fact and i think you might be right about that that it's not a pure factual question you still have to come forward with something more than speculation in order to overcome the deference that we otherwise are required by statute to give to the state court determination don't you and certainly the court is much more knowledgeable in this than i am but i i don't think so in the case in which the juror has lied i mean because  structural defect well i guess that's the question i mean in other areas of law the constitutional violation if there was one is subject to harmless error review and in essence i guess that's what the state courts did when they said we don't see any evidence that it impacted her ability to be impartial determining guilt or innocence and again though that's relying upon cases both the you know the marshall case relied upon by the state court and then when it got to district court relying upon jones and ross which involved cases in which the juror could not have been excluded for cause beast upon the reasons that they didn't tell the truth or didn't  provide enough information and i think that that's the difference and i think that's why to some extent you kind of have to jump to form a ninety in the structural defect involved because what you have in one of the four kind of exceptions that the phony court talks about is the impartial judge if you if you have a case in which you have a partial judge or a judge that is biased then that's a structural defect in which you don't have to prove you know the harm have held that this type of error juror misconduct is akin to the judicial bias that you would have if the judge wasn't partial and therefore it is a structural defect that allows for the court to find that court looked at whether or not that had an impact on the liberation from a harmless error stem point but that's a different that's a different situation that's a juror who's bringing in something into the core into the deliberation room that the court could analyze under a harmless error of valuation like whether the confession was properly given what would if the confession wasn't given what the would the result have been but why doesn't that take us back to carmen's question and that is if the jury did not return verdicts of death and the bias was by this particular juror was against the death penalty don't can't we make that analysis and conclude that it wouldn't have any lie and serve was assumed there was some question about a background of what her children did and she and she for whatever reason told a lie that wasn't even material to any issue with the case you would say that just because she lied the conviction would have to be reversed no it has to be a material fact it has to be a lie that if the truth had been told she would have been excused for cause so it can't law but it would have been excused for cause because she wasn't impartial with regard to the penalty to be imposed and she was excused before she deliberated on the penalty that's correct but because she lied and i think that that really is the you know the the essence of this because she lied you cran not trust anything that she did during any part of the deliberation process that different suppose she had said during will i dear i am for religious reasons fundamentally opposed to the imposition of the death penalty under any circumstances clearly the court would have excused her for cause because she would not be fair and impartial juror with regard to determining the penalty to be occurred doesn't say anything about whether or not she would be fair and impartial in determining whether the prosecution met its burden of proof beyond a reasonable doubt right and we're not talking about this being a challenge to the death qualification process but but that is what the lie goes to that is why that lie is material in a capital case but the lie is material because of the fact that if she had told the truth she could have been excused for cause when the but the defense lawyer would have wanted her on the jury and would not have asked for recusal for cause and maybe the government would have but but in my my experience in the one case one death penalty case that i tried is that is that the defendant was always looking for jurors who who could possibly be favorable to him on the death penalty side well that and they would try and rehabilitate and they would say oh you could conceive of circumstances can't you you might impose the death penalty so this is a case where the defendant would have wanted this juror then and now and now you're asking for an automatic rule of reversal the defendant might have wanted the juror if the jurors opinion about the death penalty had come at the beginning and had been told everyone at the start and there might have been a chance to read militate what and i have tried i think can capital  cases i never wanted a lying jury i want to jurors that told me the truth how do you square that with the record that shows that even after the evidentiary hearing where the misconduct was exposed defense trial counsel objected to the court's removal for a cause of your number eleven cited in i think both the opening brief and the reply brief at that point in time defense counsel had no duty but to preserve the record i mean that was his duty and i cited the a b a guidelines for that principle but he didn't he didn't want that your excuse now whether he's doing it because he's trying to sow error into the record is a separate question the fact remains that he objected competent lawyer who was doing a job not to preserve the record but but to the keeper favorable jury for the death penalty phase that's the reason the objected but at that point in time the guilt had already been determined well now he's sober  what the guilt issues over with and now he's looking at this situation where he has to present whatever he has to present to the best jury that he can get if he now knows that this juror has in fact said i am opposed to the death penalty if he were not to have pursued her i'm sure someone later on would have said that with counsel i think you're probably in effect of under strickland for not keeping that thompson you wanted to be get the bats in the issue so you can skip over frankly answer to fight issue see which tries argue that that's an issue and what we've got here is a couple reasons i think your honor should look real carefully at that issue first of all you should be aware and i think you will know from note from the record that the underlying batson issue was in the trial court's own words quote a close call unquote which quote troubled unquote her so she even mused about the possibility of well gee if a court of appeals reverses me you know what might happen second the issue is framed in uncertified issue d in our brief he is really just about getting the tools to make the argument it's really just about fair process that the court's ruling if you think about it mr quinn's batson claim was almost have to ask the attorney general argued and the court ultimately ruled that he lost on that claim because he had quote presented no evidence of any sort to support his claim a purposeful discrimination unquote but it never gave him access to what he needed to provide that evidence it never in the words of the boy versa no one case gave him the tools in this case the tools that evidence that he needed with the jury questionnaires almost everything the prosecutor referred to in justifying the challenges from the jury questionnaires almost everything the defense jury questionnaires during why dear yes and that's why everybody was referring to them and and that's all basically all they had because the word here itself perjury was probably one or two pages the questionnaires were like least twenty four pages long so as i read the record maybe help me if i'm wrong as i read the record that's a challenge is made a court conducts a sidebar or mid void your hearing in order to flesh that out prosecutor offers explanations which the trial court credits isn't the fault here with trial counsel in then offering evidence based on the questionnaires that were then available to him in order to rebut the to establish pretext to show that those well but trial counsel tried to do that by also talking about the question ears but still on appeal this court case was quite clear in fact your author wrote an opinion and i think it's one of the  where you're afraid of the nothing in a jury questionnaires a multiple multiple multiple times it is still appropriate in fact required for this court to do what they call the comparative juror analysis and mr more important maybe mr asportation is entitled to try to do a comparative juror analysis and the only way he could do that in this case is by having the jury questionnaires i mean the most fundamental basic rule and i thought you said you just said that he had the questionnaire you know at trial the attorneys had mr b we could not get them and does not have them and one of the reasons is there's a california statute in the records a little ambiguous but sir mr brianna's petition cited two california statutes one's penal code i believe ninety five or ninety five point two something like that that says basically a defendant it's a misdemeanor to give them to a defendant and then there's a code of civil procedure shechtman that's also cited in the petition that says the questionnaires will be sealed it's a little ambiguous just what happened to them in this case but it's clear in his petition that mr b is saying two things want to need to questionnaires and to as i understand it the only way you get them is by having an attorney who will try to get them for me and that's why he made the request for counsel and all we're asking for an uncertified issue d is that we have to get discovery in the form of jury questionnaires i think more realistically get an attorney for him so that attorney can get these jury questionnaires and do this comparative journals has which it's crystal clear under this court's case saw a defendant is entitled to do and he's he's petition and go back to your question judge tom and if what you're thinking is maybe the defense attorney in the middle of that trial in the middle of the board you're proceedings had to do this complex comparative to your analysis i don't think that's true i think he can make the objections the way he made them and then mr bray is still untitled in his petition to i'm not so sure i think our case is basically say that there is an the burden never shifts it's his motion to establish that the preemptory is were exercised with a prejudicial motive and he can't just stand mute when the prosecutor explains why he or she exercised that challenge and in the court credits that explanation the defense has to do something more at step three which is to rebut what the prosecutor is sad that's correct which the defense attorneys here clearly try to do but there's no question that you can be doing this comparative juror analysis in the hideous context there's a multitude of cases including the when your honor was on and and three or four or five others where this court in hevia has clearly doing that one of the problems of this concept the question would be whether or not the supreme court requires that the fact that the ninth circuit thinks it's a good idea is well well they do it but that doesn't necessarily mean that the supreme court has command but the two miller l cases certainly do and this court in the cases where it's done it it's done it in ed the cases and it's applying supreme court precedent in the tomb in the form of the two miller l d morning your honor deputy attorney general david cook on behalf of respondent good morning your honor turning first to the jury misconduct question i guess there are some terms being used in the discussion that are are not being used in their precise context in this case first of all prejudice prejudice was assessed in the state court of appeal opinion and a citation made to people  marshall in the marshall case prejudice was discussed but not prejudiced in the usual harmless error type of way chapman or the state standard people v watson or even brecht the marshal the california supreme court in marshall talked about prejudice as a matter of fundamental unfairness at the trial in other words more of a structural defect kind of analysis not a harmless error type of analysis and the california supreme court in martial cited rose the clerk and so it was clear that the california supreme court was understanding of a of an issue of constitutional dimension but i thought if i am i wrong i've always thought that structural error was a talismanic that once invoked excluded all efforts to establish harmfulness that it basically is a legal conclusion that the proceeding has been so infected by whatever the error is  as a matter of law deprived of a fair trial the matter what the showing is and you're entitled to a new trial isn't that what structural error means absolutely correct your honor absolutely correct and that brings me to the next term that i would like to say it has not been entirely used in a precise form here and that is structure and and that has to do with the greenwood test the greenwood test even if we were to assume that the challenge that this juror lied and had the truthful and had the statement i'm not in favor of the death penalty had that been mentioned during voir dire even if we assume that the jur that that statement would have been the basis for an inexcusable for cause death was near we still need to look at whether what the juror did or concealed affected the jurors impartiality greenwood itself was not a death penalty case greenwood was a civil case so we have to look at greenwood in the context of this case which at the time of wazir and of the time of the trial court hearing regarding juror misconduct we were in a penalty phase i come back now to the term structure the death penalty case lit trial has a different structure than yours typical criminal case or a civil case and so the impartiality reference in greenwood in a non a t p a case of dire infields and all of those other cases which cite greenwood and the term impartiality that term of impartiality has to be viewed in the context of this death penalty at the time case as your honor pointed out during the opening remarks the death of the jurors statements about the death penalty would appear to bear on the jurors bias toward the death penalty but under clearly established united states supreme court authority witherspoon  juror's viewpoint about the death penalty in and of itself is not enough to taint the r r to establish a bias as to the guilt phase of the death penalty case that's clearly established authority something more has to be done than speculate about the jurors views regarding the death penalty and how they would bear on the guilt phase let's assume she lied let's assume she would have been excused for cause we still need to look at impartiality in the context of the death in the context of a death penalty case with two separate procedures and see whether that impartiality affects the entire structure it does not my my opposing counsel's argument you know doing as good a job as possible on the record that is before us but even your honour's comments and opposing counsel comments are all speculative we don't know why the juror did what she did we don't know how whatever she concealed about her viewpoint about the death penalty bore on her ability to deliberate in the guilt phase without anything more clearly established united states supreme court precedent would say that the impartiality of this juror did not if any did not affect the guilt phase of the trial  and i i would also like to point out that any fault at this stage for the lack of development of the record stands on the shoulders of trial counsel at that time that the jurors alleges misconduct was being litigated in the hearing not only did trial counsel argue against that juror's removal argue for a mistrial for excusing that juror but in the argument i believe it was i can't remember if it was mr rowlings trial attorney or mr buoys trial attorney appeal at page twenty nine for that purpose counsel's judge gould if i could ask you a question please yes here is there any supreme court precedent that says that a juror lying about a material issue in the case is a structural error not to my knowledge your honor in fact we are all in agreement that greenwood is a very it is one of the supreme court cases that govern this issue greenwood itself in its multipart whether you consider it a two or three part test one of th only one part of the test pertains to a willful concealment or a misrepresentation as to a material fact that the law i or concealment is not the end of the analysis under the supreme court's greenwood decision we have to go forward to see whether that response or concealment would have been a basis for cause and that the jurors believe bore on his or her impartiality so to answer your honor's question the answer is no i am not aware of any such decision and we have greenwood here telling us exactly the opposite that lying in  itself is not enough we have to go further than that to thank you your honors i was not prepared to argue the batson issue as it was an uncertified it has not been briefed by respondent neither of the briefs and so i would ask if this court is inclined i would prefer an opportunity to brief the issue before the for speaking on  it however to the extent i would offer this that to the extent opposing counsel wishes to develop facts that were not presented to the california courts that would make the claim an exhausted the petition mixed and should be dismissed on that basis unless the court has any further questions i would like to just close by saying the protections of the constitution are there to protect the defense the defendant he was protected in this case and at the moment where he could have sought exclusion of the juror for the basis he claims now he didn't he was satisfied at that point and at this point he should not be heard to complain about what he did at trial thank you your honors anything further to school no question of ok thank you very much thank you material fact that has to be done and if the court and is the court did in this case found that there had been such misrepresentation the second element though is simply that that the military will fact be of such consequence that it would allow for there to be a challenge for cause for that particular juror and that is what occurred in this case the correct response had the juror given that early on would have allowed for the court itself to excuse for cause or for the prosecutor or the or in someone else to actually ask for the juror to be excused for cause both prongs were met in this case therefore the greenwood case or madonna you versus greenwood case is the controlling case that the state court and that the district court should have looked at in providing its analysis dyer in just in response to some of the argument was made with respect to the spec the nature of this type of claim because it is a structural error a structural defect in the harmless error analysis does not occur but in dire judge kozinski went to great lengths to provide a number of items that could have happened with the particular juror that was excused in this case i just referenced one of them which is that a juror could have she could have jury leavened could have walked to or own beat when considering the meaning of reasonable doubt and that then draws this back to the issue of whether or not she could have been a fair in impartial juror in the guilt phase which was as the evidence shows a close call but it was i thought she was questioned on that point during voir dire along along with all the other jurors no she there were no questions that were asked of her regarding the death penalty during board only or no you are arguing about whether it would have impacted her ability to apply the standard of reasonable doubt to guilt or innocence and i mean didn't she participated along with all the other members putative jurors during voir dire on the question about state's burden of proof and so the dire opinion is really about is when you get to this point where you have a juror that you cannot trust you cannot trust the juror at any stage thank you thank you very much  submitted thank you both counsels are all counsel for a very good argument