this is the claim that this period or court originally granted relief on the case went up to the pennsylvania supreme court the supreme court re man did fur application of prejudice under strickland conflicts i was just going to say it seems like the only lie claim i know that we said you should dress appellate but i agree with the yeah yeah and that's why you didn't address it in your reply brief so we're going to focus on the exactly a t c claim not see exactly dutch ok and when this cut when this claim comes when this claim comes back it the panels the panel splits to one and that the station is now now at issue here and their decision on the majority included the majority concluded that the alternate exposure to outside influence was the speculative and i want to start there because the jury got this case on thursday afternoon that this was that we thought the trial counsel claim was really the only live claim because of concerns about fair presentation without appellate counsel claim and having reviewed the pleadings i think that's correct and on direct appeal with us with state laws that suggest prejudice would be presumed so we have we have we have beat the issues in terms of prejudice where you're alleging ineffective assistance of counsel as to trial counsel where the prejudice is one that was addressed by the state courts including when it went back on and on and on the harmlessness standard and on appeal where the question is whether if it had been if the trial court's error in seating the juror had been raised by the public counsel whether there would have been success state law determination here and this came back on that for a determination of prejudice under strickland which this court can certainly review which position that agree with you that the the district court erred in saying that it wasn't presented you've still got another hurdle to get over right under because the state court to say we so that that decision the analysis in there is pretty it's pretty brief and it does not discuss it all this sort of gap between when is when the when the jury were tires to deliberate and then when the jurors is receded and that's critical in a case it's this this was a really emotional sixty trial there was testimony that she no washington said she she jumped out of a nd story window here i mean and then there is no questioning at all of this juror about exposure to outside influence from even though she was gone from think and this is a that's the error that's the saunders error but now you've got to show that it's prejudicial so in there you know what what i guess you'd like to see in this record would be some deposition testimony some affidavits hang from his jury and you're not going to believe what happened i went home over the weekend and i i saw this on t v and but i didn't see any sort of evidentiary proffer here of the sort that  would be helpful to mr slaughter what am i missing here i think you're correct on that point but there is here in fact this superior court characterized it in the majority opinion this is speculative  and we don't think that there's anything speculative about the fact that a juror here sat for six days in a very sort of a in a very emotional case this was a fire that was two miles from the c j c and then would have spoken that in a fact pattern like this we should assume that there was some sort of extraneous influence on this jury won't even try out trial courts are scrupulous about warning jurors don't talk about don't don't discuss the case don't do any don't go read the paperwork since we presume in other settings that is to say when a trial court charges a jury and principles of would be applied in their verdict and we presumed that jurors follow a court's instruction can't we presume the same thing with an instruction to jurors that they're not to discuss the case they're not to be subject to str that when the this is all the the replacement sure did not have the benefit of those instructions on friday when the jury was sent home for the weekend  in judge bright told them specifically like you know again no investigation is no the trial started on thursday the trial started in the proceeding the proceeding week so there  the record yet either that but it seems to me highly unlikely that who would not have provided those standard instructions just about every day at the end of the day so this but then once once the juror what happens here at the end is so on thursday the jurors this disturb sent home so are there is there is in fact some confusion she in she is told to quote stand by for a little while that that's the language fair presentation which of course is an issue that we have wrestled with and in our case law so in a case where we have in the two thousand and nine petition the issue of a the alternate and failing to preserve this issue for appeal and then the request for a new trial which would be the remedy on appeal have been raised on direct appeal and where the superior court in its own order describes the claim that was raised as involving both trial and appellate counsel it's it's your position that it's the defenders position in terms of our fair notice jurisprudence that that's not sufficient to day of the trial the judge gave a standard instruction about about avoiding outside information what you know where the language was very similar if not the same every single day now as i've information no no visits to the scene no experiments no discussions and if anybody has exposed you were trying to expose you to any such information you need to notify the court as i think that instruction is given every day but i want otherwise to begin by saying even putting aside all other issues for the moment including whether the claim is put to this quarter will be the same claims that were put to the state courts this appeal it really is really about whether counsel rendered ineffective assistance by failing to request that the judge pose questions called for by state law even in the absence of any reason to believe that those questions would have yielded satisfactory answers well isn't that what we already have wise advising our means to rebut that presumption and i think i think what we're talking about here unlike a claim of structural error under constitutional law there is no challenge here to the adequacy of the direction by the judge that that the that the jury will deliberate which i believe is the only heart that the constitution requires i believe that the that what is left is just a claim of state law a claim of enough active assistance a failure to preserve a claim of state law ever isn't it the case that the trial council fought fought the good fight when clearly there was engagement by truck council but but it seems clear that trial council did make a mistake by not how consulate of a winning argument on that right now that no i don't think i don't think so i think i think counsel the winning argument only on three unrealistic assumptions each of which violate the very you know presumptions about how judges and juries behave don't know that it was already a winning argument because the pennsylvania supreme court told us now when the pennsylvania supreme court sent it back the the basis why is that the harmlessness standard that had been pennsylvania law makes crystal clear that we're a trial court has overwhelmed councils objections and that failing to request curative instructions does not result in a waiver so that said there were two there are two issues here right one is the that the seating of the juror which and there was a proper objection to that issue was preserved that to that extent that under under pennsylvania waiver law and look at could we stop it there because i'd like to know what the objection was what was the specific objection raised by trial leaves and is that juncture when the or the over that was presented for this the specific instrument objection raised was to seating the alternate not so i mean correct correct and the argument as it comes as it was brief before this court the argument was so far so good the where trial counsel rendered ineffective assistance was by failing to make the secondary objection that seems to be ineffective assistance of counsel which is a constitutional claim i agree that it's i agree that it's a constitutional claim a constitutional claim or failing to raise a claim of state law error but in terms of deficient performance i don't think deficient performance i  supreme court case law they gave this lawyer a really good argument had been made no lawyer made some other arguments and but i don't know i let me suggest that if we go if we go against you on  this then your fallback is the prejudice issue right on why i think i think that's right because again there is an almost there's almost no presumption the law that jurors follow their instructions and i think the argument that you would have had a winning winning argument i think that anything that depends on the on the on civil principles each of which one against that very well established almost invariable sumption of the law and i would say that if we were ever to start to depart or question you know it's clear that one of the jurors was on the jury is pregnant and has been feeling unwell all week and where the judge says in so many words i cannot dismiss you because you are the last alternate that we have left we're to need you to standby in case you're needed and so the judge says you're not dismissed for service because we may need you i mean any reasonable juror under the circumstances would recognize that there is a more than hypothetical morden theoretical chance that they're at that she's actually going to be called upon as the other old nits have been i mean in all cases this just seems a particularly strange case to assume or to presume that the juror likely figured the judge didn't mean it you know and would go off and do exactly was procedurally defaulted because i'll just show you my cards here read slow slaughter raise the issue of trial effectiveness all right and he claimed in his appellate briefs the trial counsel was ineffective for failing to quote properly object now i concede that that's a high level of generality yes however couldn't the court reasonably construe that to be a claim challenging trial counsel's failure to object to the lack of a proper jury instruction i think i think i think that a master judge you read the record reasonably in saying  to the extent the claim is properly before this court that we're that review has to be deferential under under subsection day ok same thing tell us why it survives that favorable to use standard review because because because  because the entire argument of prejudice again it relies on basically reversing the presumption that jurors follow their instructions i think as a tricky point here mr goldberg is is what is the default rule and if i hear you correctly you saying the default rule is presumption of regularity here in the conduct of the trial and absent some sort of evidentiary proffer from the petitioner that default rule stands is that the the judge in in violation of the federal criminal rules allows an authorized persons into the jury room during deliberation allows the alternates into the jury room during deliberations even though  after after this this very very long trial but says but i'm going to i'm asking you on terror directing you you can't you can't talk you can't you can't participate in the deliberations you have to just sit there finally like flies on the wall and  you know and and following rehearsal night circuit the you know because there was no objection to this in the in the in the trial court in the district court because of the supreme court that says you're substantial rights were not affected it's not plain error we presume that jurors jurors follow their instructions and there there's no reason there's no there's no reason we would get the jurors that otherwise in this  case and i should and i should add and i should add this is not and never has been a case in which in which the argument is we were denied our ability to make a record about actual juror bias or actual impermissible influence on the jury o jury the argument in this case is we get to win without having to show that well that would have been true when that because of the presumption of prejudice under sonders that  was an era on the part of the trial court and and the present in a previous would pertain to interact appeal as well i think i think i think this is sort of it was a sort of falling into thing a week where we presume that the function of an objection is just to create a better claim under state law and under state law we also know that this practice has been hollering at me and higher and the entire argument as i understand it in this case was that counsel failed to preserve the necessary secondary objection that would have allowed this to be a winning three the only three ways where counsel's allegedly deficient performance might plausibly have led to a different outcome even of the jury selection process let alone the trial and all of those possibilities i think contravene you know very well you judge this also the substitution here in addition to not questioning that replacement or the substitution took place after after the jury announced it was deadlocked and in a case that it's clear that those three jurors were sequestered overnight and then they were questioned did you discuss the case amongst yourselves and did you do any outside research before that replacement took place in james it's presumed that judge  followed twenty four c of the rules because the rules of criminal procedure and that rule says must ensure that the juror did not discuss the case so this court's jurisprudence is clear you don't substitute juror with out that sort of reassurance and not only do we not have that reassurance here it took place in a case that resulted into a quick looks this was not in endorsement of the case that the commonwealth cresent it they argued to the jury these four guys went in there together and was in a play scrabble the jury came back after some really protracted deliberations there was three spencer charges here i mean there was the five questions this was a really this was a jury that was troubled about this case and mr slaughter got thirty five to seventy years after the judge here changed the personnel on the jury after three days without questioning this juror and this is sort of the most the most fundamental part of practice i mean again this is everything you're saying mr man woman his i think could plausibly support a problem the question i think that we have to wrestle with is in the absence of any proffer and the absence of of evidence on hay vs he'd seen it still strikes me that we would need to make  default rule here that the absence of evidence is somehow ok because i don't know i mean well this sounds like a tough ask i guess is what i'm positi in it's simply the st strong evidence here to support the inference in this i want to show i'm not sure that because when i when i read the record i mean there were there were some pretty distinct differences between the two who were convicted  the two words in terms of how well they were known to the victim so i certainly know how the prosecutor argued to the jury it's now mr bundy's attorney said these guys all knew each other and caccamo so argument was everybody specifically was stand by for a little while no cure is going to reduce and this was i understand to dismiss question and you know hey you want all the time you know don't discuss the case but once the case is over you're going to talk about this case especially