the time but other than that there was very little evidence other than what i would like to call a lot of character assassination and gossip about the street casey microsoft grants as a trial attorney is that when you see  concerned the tax meet the press and prejudice standards set forth in the united states supreme court and shepard versus maxwell which is the probability of unfairness or prejudice from pretrial publicity the community was saturated literally with prejudicial and inflammatory publicity not only from the media but from the first hand experience of the jurors and local talk in the small community members of the local community who had heard discussions of the facts of th had formed opinions as to guilt during the general five year which of course when all the potential jurors were present when defense counsel asked how many informed opinions twenty four prospective jurors raise their cards in addition to that you're being question jurors were aware of the fact that the primary newspaper the one actually world thought mr casey was guilty and two people who sat on the jury regularly read when actually world mr fox one of the people i read the other articles in the newspaper and right now those articles state quote unquote he's guilty the paper included a statement by the prosecuting attorney that mr casey had a little shooting his wife another article this case a number of the prospective jurors formed opinions or were aware of opinions in the community from listening to conversations and from people they knew many from the medical profession example of one of the response i'm leaning towards an opinion but i don't really have one and it's from the conversations that have been going around me another example ms armstrong who had discussions with her daughter who is rosemary kay she's casey's patient which all of the jurors fight leader individual i'm glad you're here and i think that we demonstrated in our brief how that dynamic occurred in this case  problems here were not limited to just the media coverage there are also cases that are cited in our brief recognizing that there are factors which threaten jury impartiality in the small community widely held convictions the senators guilty regarding versus williams as your pointed out you could not go for coffee without hearing about the case there was an exact thing quote here where a joint jury pointed out that you could not go for coffee and when actually without hearing a discussion of the case this case legally the fact that the jurors may have said they were impartial of course is not conclusive this is a small town returning anything less than a guilty verdict in a case like this would be considered the betrayal  good morning in may please the court my name is paul weiser i mean it's just an attorney general appearing today on behalf of appellate more in this case we're going to ask this court affirmed the district court's decision but not exactly as the district court adjudicated the case we serve i think what we have to look at is the jury that actually served in mr casey's case and we have salmon there why deer and the fact that the defense did not have any challenge because for those particular jurors every challenge for mr casey was satisfied that the jury that he had received was fair he was not able to point its finger to anything that would indicate that these jurors had a fixed or or inflexible opinion about the case that they would not be able to set aside and in fact i think the the extent of his desperation is expressed best at the time when he renewed his motion for change of venue this was the first day of the trial and i believe it was of mediately following the  parties opening statements mr casey renewed his motion for a change of venue this can be found in the excerpts of record at page one thirty four through one thirty six and he says we think there are too many people on this jury  can be fair and partial and if they can set aside these preconceived notions and ideas and opinions and i just don't think they can and then later he says many people have said well it's difficult to put it aside but ye wreck but later in that same motion counsel stated simply because we are not capable of challenging a person for cause does not mean that we feel comfortable with the juror and that's not the standard for whether the jury is impartial that's counsel's level of comfort with the jury it's can these jurors swear to set aside anything and say may have formed in that case and in this case there were there were very few of the the jurors who ultimately were chosen to any kind of opinion in the case of the twelve who were chosen and who sat as jurors were able to evaluate the evidence fairly and to decide the case based solely upon the evidence that was presented in court well that's correct your honor i think even there though your honor the end of those cases that are relied upon in the specifically were urban versus dowd read out versus louisiana shep versus maxwell those are all vintage cases by now and i think that the more recent decisions specifically murky versus florida that was one nine hundred seventy five case that was as stated in both parties briefs in that case justice marshall made it clear that you really do have to look at the jurors who are chosen and the burden is on the defendant to prove something not just alleged something not just say that's a stealth juror and i know what i can tell you i've got a hunch ickes can't prove it that's not the standard they have to prove that the juror is funny able to serve on able to be impartial in the case and that's all that mr casey has really done at this point is just allege that there was this media saturation in this carnival atmosphere however  want to put it from the cases that again the urban radio and shepard versus maxwell cases and compare the facts of those cases with the facts of this case like in that irving where there was this  the public city immediately before trial including all of the defendants prior convictions for those role played out the fact that he confessed to twenty four burglaries and six murders and has offered to plead guilty to the charge defense in to listen to any expert testimony that was presented and in fact there was going to be expert testimony in the case and that was explained to her so she i believe that she would listen to the experts opinions regarding g months in four months before the trial even started the trial doesn't start until june twenty third one thousand nine hundred ninety nine so any possible prejudice that may have occurred as a result of that media coverage had dissipated just by relatively factual coverage with the exception of dr casey's obituary which which i peered in october of one thousand nine hundred eight but other than that all of that the news coverage was relatively just factually nature and in fact  casey was even able to suggest to the the potential jurors if you want to look at it that way that his his defense was going to be a defense of accident at trial that was reported in one of the february counts but it was far from being a media saturation or the carnival atmosphere that that was seen in either the actual prejudice cases or the presumed prejudice cases by the supreme court from  accounts news articles from when i ask you world during that period of time i don't believe there are any more stories out there and i believe if there had been and if they were particularly explosive or prejudicial we would have seen them and it is mr casey's burden to establish his case that that there was a media saturation or that there was extensive coverage of the trial and we cannot discount the fact the trial judge here was able to assess these jurors credibility when they were saying things like i can be fair and impartial i can listen to the opinions of expert witnesses on whether guns will accidently discharge it's up to the trial judge who was there at the time to assess whether the jury fact is being truthful when he or she says that and for that matter jury impartiality  although that case concerned preity the law under section twenty two fifty four the that is the predecessor to the current version of section twenty two fifty four and we believe that judge they were presented to me that is correct your honor we do business things with and to the court of appeal that's correct we believe that they were by presented i guess i should qualify that the claims were were inserted in a petition for review with that went before the washing supreme court in its wash and supreme court denied we believe that that was not a fair presentation of the claims in light of the fact that the claims of one and the two of referring to specifically on the confrontation clause claim two states cases and it was only when they were presented to the washing supreme court did they take on any kind of a federal flavor for the first time in the petition for review there's a speculation to a wild horse roberts you would authorities on the exhaustion issue as to whether if assuming the assuming they were presented to the court of appeals contrary to your argument then there is then there exhaustion that's correct but assuming that they warrant if only state law issues were raised that the intermediate court of appeals is there any authority on the issue presented for the first and only time to a state's highest court in a procedural posture in which it's unlikely to be reviewed that does not constitute fair presentation and i believe that this court in party who presents federal constitutional claims for the first time in that case i believe was a motion for reconsideration in washington supreme court if the washington supreme court had denied review in that case without comment then the that that testimony although it's been described as nothing more than gossip gossip type evidence and character assassination was actually relevant state of mind i hope elise in what the state of the marriage was hearing that period of time and that's what was relevant if she was willing to share this information with her friends and colleagues she was probably sharing the same information with mr casey and that gave him a motive i believe it does your honor i believe that it shows that in the months leading up to her getting shot there was a reason she got shot and that it wasn't accidental that the state of the marriage was that fragile hers i don't know that that's his motive it it's her state of mind i think that the evidence of the some of the hearsay that was admitted obviously was mr casey's only hearsay of course that isn't covered at all by the confrontation because we're just talking about statements by the victim they indicated that this was a very wacky relationship that they had that she was she did not believe in the strength of the marriage that she was not being treated well and that she was thinking of getting out of this relationship and i do think you need to look at the atmosphere when you're trying to pick a jury when jurors say i think i can be impartial that's like you know if i asked my wife do you love me she says i think so i'm going to ask a few more question