good morning my name's jay tony i represent mr wagner i don't know whether other out of town council have a problem i have this morning but i was convinced that mapquest had given me the wrong directions i practiced for thirty five years i can't define what a court house looks like but i know it when i see it and this is m sufficient showing procedural the fault it was there the second and when we get to the nitty gritty of an issue i think in this case is the inadequacy of counsel he was faced with a situation where they just had a judge affirm the fact that a woman has made a decision that the defendant is guilty verdict has been rendered healthy and the verdict has been rendered under those conditions just after she had made these remarks and you can still make a substitution as long as the verdict has not been returned in open court and  she's been on you have to show us this clearly established federal law and look at supreme court cases that the failure of the lawyer to make a mistrial motion in this situation was incompetence that registers under strict i think so but i think when hated that class i hated federal the federal court class it was one of the most difficult classes that i had because at that time i didn't even know the difference between substantive one procedural law and were throwing me in their state adequately represent the client that was trying to get rid of this whole jury and start over again so they should've made a motion for mistrial ok i mean i agree with them i agree that the lawyer was in a really tight spot what can  had an opportunity to poison this jury by going over juror number seven is house talking to her about the case and then calling her and she threatened her the next day he admitted that to his friend who the trial court eventually believed and he also told his friend that he was going to try to poison the jury so he could get a mistrial for his friend by telling the defense lawyer and the court that she discussed the case even said that she called the petitioner a nigger which his friend and his friend who was there during the conversation denied she ever used that term he made up a story about the fact that she may have been sleeping with another one after that instead of the mistrial that he was considering or instead of actually instead of pulling more jurors out of the jury room and talking to them about what she may or may not have said regarding court decided not to do that he decided that he did believe juror number seven with regard to the fact that she was not having a sexual relationship with any other jurors who decided to believe her with regard to the fact that she did not discuss the fact that  petitioners friends came over to her house to talk to or with any of the other jurors and she did not discuss the fact that this guy called her and threatened her the next morning after that contact with any of the other jurors in the trial court essentially believe for on most points  of it decided in his discretion that he did not need therefore to call out other jurors and interview them essentially decided that he either eleven jurors who haven't been contacted by petitioners friends had not been exposed to what had been going on and therefore it was perfectly ok at that point to substitute one of the alternate jurors who had heard all the same facts all the same facts the money obviously sitting in is not the situation where we have a wholly separate jury with a wholly separate defendant that that opposing counsel mentioned earlier it's a situation where now we have twelve jurors who heard all the same testimony on the stand of it and the jury verdicts and trying to a jury foreman which all would have gone more smoothly the second time if the conversations about the defense lawyers tie out of the way and all that stuff then you've got like an hour of deciding he killed her he was in the barrel with a shotgun ready to back up his buddies that were trying to jack people and smallpox where is to get money to get a prostitute when that didn't work they decided just to kidnap a woman figure out and rape are multiple times so i don't think that it would take them very long to decide that this guy was guilty and that all the special circumstances and all the aggravating factors were true i'm sorry special circumstances but