thank you your honors i'd like to begin my argument this afternoon by addressing the merits of the rule sixty b motion and how the district court abused its discretion with its narrow reading of the penya rodriguez case after that i'd like to spend some time discussing why  interviews with jurors are so crucial in overcoming racial bias discrimination and i do plan to reserve my final four minutes for rebuttal if possible write your honour's the pen your rhetoric his decision in the majority's own words is part of a continuing effort to overcome racial discrimination and part of the maturing legal system that maturation was embodied by the court's decision that six o six b must give way in the face of evidence of racial discrimination  and likewise rule thirty nine point two must also give way to allow petitioners the tools to uncover that racial discrimination thirty nine two did not give way here obviously so well sixty six is a question of are how do you explain at length so i at the language i believe you're referring to is when the court refers to the practical message exactly and we are my feeling is that this rule is not a practical method it's in fact an all out bar to getting to that information  and as your honor mentions the supreme court noted several examples of the types of rules that limit attorneys contacts with jurors after trials where the routine rule doesn't call out bar the rule requires a showing of some kind before you can do it right or is it your position that because it requires iraq it orders to be sent it's in a lot more i think there's several reason why why it ares i mean it certainly bars post conviction counsel from any investigation because the time limit i within the time for a new trial so would only ever be the trial attorneys who could move for this kind of evidence and post conviction counsel would never be in a position to do it but in addition to that i think being in iraq atory is sort of prevent us from doing this kind of investigation because as the supreme court noted and you rodriguez this is not the type of evidence that you were going to find with simple questions these aren't sort of an objective issues these are the types of things that you want to cover through discourse through conversation something known or reason for concern and then the question is as a judge it could be could have meant and then the question is when does it become admissible and the supreme court has told us it's very important at that point that it be a and that they evidence free will has to give way yes right so it seems to me there's different parts of the local rule where for which they did didn't satisfy that where you have a much stronger argument that those parts of the rule would have to give way if there were good cause but the time limit for example the ten day time limit for example failure to comply with some of those components of the rule i can understand that a very strong argument that those parts of the rule would have to give way in light o but what about the bear showing seems to be the core of the problem here the showing of good cause or reason for concern your honor i think the specific facts of this case could give rise to good cause but i think the supreme court also makes very clear that racial bias is is something different it's not it doesn't fall in line with standard juror misconduct the supreme court refers to as a recurring evil right so is it your position then that this would this would come into play  a right to this kind of discovery after everybody i think if the court was looking for some limiting way to limit this rule i think you could say every verdict in a capital case i think capital cases are particularly concerning for racial  reasons but frankly i don't see why we would want to limit an investigation into racial bias in every criminal case i'm not sure why i would see why we would want to but that's a different question than whether the supreme court and pay your rodriquez told us we had to and so that my question is do you retain you what rodriguez is saying it's not a capital case as i recall that's correct yes i did so do you read it as holding that in every capital case even without a showing of good cause or substantial reason to think there was racial prejudice you were nonetheless entitle to interview jurors my feeling your honor is yes i i think there are no tell me tell me where it says that that's my difficulty  justice kennedy even goes through he says look we understand there are still local rules and other things that prevent you from doing this but many times says in this case somebody will come forward with the evidence and that's all we're really deciding today now it may be the necessary implication of pain you had read is that these are the things follow but i'm trying to figure out whether the case actually holds that if i could make a couple of points your honor st of all the local rules that the supreme court cites and pena rodriguez so cites one from new mexico one from massachusetts one from florida and one from colorado none of those rules are as restrictive as this what that may well be but the court wasn't saying these rules are ok and other ones are not where the court was saying was we recognize there may be a barrier in local rules than other places to going forward and discovering this evidence but in many cases like this one people will come forward with it anyway so i have a hard time reading that case is doing anything but leaving open what appropriate restrictions might be as opposed to deciding that they don't exist at all i think i do agree that i think the supreme court leaves that to us for now to figure out what the appropriate if they do it to us then here's the problem that i was trying to get to we have some one circuit cases cop among others that say in the absence of a showing of some reason to suspect that the jury engage in racial bias you don't have a constitutional right to talk to the jurors because the supreme court leaves that issue open can we find that pin you're rodriguez is clearly inconsistent with their prior case law in other words is this an issue for an bank or not for three judge panel i don't think it is at this point your honor because i think the new rodriguez marks a change in the law and you wouldn't necessarily be overruling smith versus cup at this point is that the i don't know what but it made me change you know laws it doesn't affect the validity of our prior law that's what i'm asking it for our general rule is that if we the supreme court decide something we still stick to our prior law unless the supreme court decision is irreconcilable ring necessarily incompatible with their prior law so if the court leaves it open how can we how can we find it in compound i don't i don't think smith versus cop touches on this particular local we're all at i think what you can do is the nd one does the use of the elder case in a case to came out of this circuit it was a prior version of this rule but the court grad there clearly said you don't have a constitutional right to talk to jurors in the absence of some showing those i grudged don't think we need to necessarily find a constitutional right to speak to jurors i think what we need to find is in the service of rooting out racial discrimination the local world needs to bad in the same way that the federal rule of evidence needs to bad but my counsel that's the part that i would willing to give you time to get to you get to get to work for me is that which is the tougher point is it your position and there's two parts to that right is it is it your position that it has to bend in every case whether there's a showing of cause or not i think you've answered that your position is yes i think yes my fallback would be if the court is looking for something a bit more restrictive i certainly think capital cases and so if i get to it because your time is ticking and it's terribly important and for me anyway yes or leave a couple of times to the fact that you think there was a good cause or some cause are substantial showing factually could you tell me what you what is your best case for that my strongest argument for a good cause aside from the penny rodriguez case itself i think the individual facts of this case i know the court's aware this already but i'm going to point out that this is the only federal capital prosecution of a native american in the modern history of this country and like the jury selection in this case resulted in a jury of eleven white people and only one native american you appealed all those issues and lost on them i've been sorry to say  i wish the government had not decided to us to bring these capital case over the objections of the navajo nation yes what it did and more all where or we're here today is about is the sixty be motion so why does any of standard portion of the federal death penalty act but i would remind the court that that certification is individual to each juror so that what the jurors certifying is that juror herself wasn't motivated by racial bias it doesn't speak to anyone else but i guess  because in the general background of the case is there something that occurred during the case or during the jury deliberations that you can hang your hat on to say that's a significant show this is exactly the problem your honor is that we haven't had the ability to investigate this and so because of the supreme court mandates of heightened reliability and anti arbitrariness we need to be able to investigate i can't answer your question because i haven't been allowed to investigate and we have been asking since inception or you have not been allowed to investigate by querying jurors what you whatever invent other investigation you've done a review of the record i'm like judge kristen who asked what is it what is it that we can find  a significant showing was made on or that probable cause or a good cause was shown other than the general background of the case i mean a side from the general background of the case i would argue some of the prosecutor's closing arguments there was  specific reference in the prosecutor's closing argument which the court found inappropriate but not reversible error to quit didn't find that part inappropriate actually i've gone back and read it and the court found another part inappropriate that part it said was a fair fair response to the fact that the judge had let the letter from the navajo nation and it said we oppose the death penalty i want i also went back and read judge brown hearts dissent because i so much agree with it but he also didn't dissent on that part he didn't say that was error here i don't think i think you're over reading that part of the decision i believe that this court found that the prosecutors reference to tombstone and the fact that had this case occurred sort of in the days of the old west mr that's yeah but so the prosecutor specifically referenced tombstone and the old west which i think quite clearly brings up the sort of days of the cowboys and indians where the indians were always labeled in american media as the bad guy it's and reference to this in this case i think from a council is going to get up and say that there's a a statement that was inappropriate at best by the prosecutor and i don't i'm not trying to make  light of that statement and that and that that in response to that the trial court required each juror to certify that that that the verdict was free from yes i asked what is your best response to perhaps lee's best response to that  is these instances of racial bias that take place in the jury room often come to light when someone points out someone else's bias not their own and that's how it came to light in the pena rodriguez case and it's that investigation that has not been done and that this personal affirmation does not go to permitted to approach the jurors so it was only the jurors who were allowed to approach the lawyer and they were told as much isn't that right there were the lawyers were explicitly told you cannot approach the jurors what were the jurors told about their ability to come forward the jurors were told when they when as they were leaving leaving the courtroom that rule as applied and i can a lot of arizona lawyers in the courtroom but this is what always happens at the end of jury trials here the judge says to the jury you don't have to talk to the defense lawyers or the lawyers but if you want  particular circumstance it does for a couple of reasons this was a very lengthy trial the facts of the case are not pleasant and i'm sure the jurors did not want to linger after that well we just don't know from this record exactly we really don't we don't so nobody came back to the judge and said judge none of them will talk to me for all we know defense counsel talk to every juror after the verdict i can tell the court that there's no indication of that in trial counsel's files and if we want it and i must say i tried a lot of cases and i never put that in my file we just don't know yes i mean are you i do is you lying we do suppose that they didn't but we just don't know yes there's no indication that they did but i cannot affirmatively say no they didn't but the other thing your honor it's mr mitchell had just been sentenced to death i can't imagine that the lawyers were running out of the courtroom to talk to the jurors as opposed to sitting there with their client after he had just been sentenced to death i think that kind  the court good afternoon your honor it's my name is william boyd i'm in the usa from here in phoenix on behalf of the united states the district court did not abuse its discretion and denying what was an untimely procedurally defective and substantively meritless motion improperly relating the rule to pain or robbery yes the district court recognized that there was a requirement of a preliminary showing consistent with pain or audrey good thing there must be a threshold showing to go forward but it said but this bar's is baseless and speculative inquiries about jurors the equivalent of a fishing expedition and here the defendant has never been able to show any convincing case that any of his jurors was infected by racial animus i do think that it is important to note the standard in this case a does have to show it's clearly irreconcilable with this court's prior precedent not just in smith versus cop but also in the united states vs albert case involving a prior decision of this court involving this very local rule and i also think although it's an unpublished case t although the trial judge mentioned several things to meet her her denial of the initial motion in two thousand and nine was look it wouldn't be admissible anyway see rule six  she says a couple of things to be fair but that's the meat of it we now know that's not true therefore aren't they entitled at least to go to the trial judge and try to say knock and got out of it should we get these the ability to  interview i think they can go to the trial court judge your honor i don't think that they can show good cause so you said and so your view is that judge campbell actually analyze that and said ok i'll put aside whether or not this would be admissible i'll just look to see wh jurors you have to make some sort of throw so let me just change the facts a little for you let's assume that the trial judge in two thousand and nine simply said i'm turning this down because it wouldn't be admissible and he invents the rule six hundred and six now they come back and  say pena rodriquez has vitiated that reasoning aren't as they entitled to a new shot at persuading the trial judge i think reserving the procedural argument that i think i won't yes spend time on then yes i think you can come back and say if there is a don't think the prior judge's ruling would be wrong you know this takes me back to the prior judge's ruling do you read that prior ruling is resting on the facts of the case or only on the on availability under rule six of six of any evidence that might be discovered i think it certainly if even if they get a new shot judge campbell who's order is being reviewed here did not make any error whatsoever in denying the motion because he recognized pena rodriguez was a precedent he didn't say i don't have to engage with it he specifically engaged with it and he recognized that there was no good cause because there was no preliminary showing i do think that it is also notable that a number of times the defense as suggested there is this new constitutional right but recognize that it has to be an inference it has to be something the court takes the next step to do the district court doesn't abuse its discretion and declining to reopen a case when we're inferring what might happen in the future and so it was appropriate for the district court to deny it on that well if it's the necessary implication of the supreme court decision which is i take it what your friend is arguing and it's the law because it's a necessary implication then a court would abuse its discretion by making a decision based on the wrong legal principle when i would agree that if you can meet the clearly irreconcilable threshold your honor noted for miller versus gammy vent then yes that would be entitled i was asking a different question let's just assume that it i'm not sure that it does most assume it naturally follows from pena rodrigues that because you could get the stuff admitted you had a right to discover it if that were true if that were true legal principle it really wouldn't matter that paying the lottery gives didn't decide it wouldn't i would i think your honor it would really depend on how close it got to it honor number one obviously as a dissent it's not something that's going to be an abuse of discretion for the court not to follow and also i think he probably wouldn't be endorsing the broadening that he was himself concerned about but number two i think the real concern to the extent that think the majority most it's come so suggesting that there that we have to really take a hard look at that if it were for a question of a hypothetical where there was really a concern for racial animus it seems to me at that case comes is powerful which is the absence of least from your position the absence of an initial showing of good cause i recognize that judge kristen i think that regarding the timeliness requirement it does serve important functions and i won't  won't push on the issue if it's not helpful to the court but sixteen years after a trial in this particular case under these facts it's unlikely you're going to be adding good information to what were substantial contemporaneous four that specifically were targeted to experiences with native americans and reservations they that had two questions in individual one on one oral for dear about whether they had any experiences or any attitudes about that about native americans that would cause them to not be fair and there was nothing in any part of their lives that revealed in this exhaustive why dear there is nothing in any part of the trial and there's nothing in the sixteen years that have passed from the moment they signed that sort of occasion and walked out of the courtroom today or any of them by any mechanism whatsoever has ever gone about saying that anybody in that room made a decision based on racial bias this is rather unique circumstance as your friend points out the only capital case in the united states involving a native but by by the government involving a native american the nation opposes the penalty we've got all these other various factors that when jury selection perfectly appropriate but relatively few know only one native american and the jury given that confluence of facts why doesn't that meet the good cause standard i don't think so for a few  absolutely recognize that there are overarching political interests that are that are being destroyed i also recognize you didn't make those decisions i wasn't even a lawyer at the time that this case was tried what what happened in this particular case was the decision was made to apply the carjacking resulting in death statute to a carjacking resulting in death there are many instances of the relatively small population of people on federal death row but a number of them have been convicted under that statu confluence of factors makes this unusual enough so that we have a good cause as to as our rule requires i don't think so because none of it's tied to a clear statement by a juror that racial animus was motivating their decision and that's what p could make a public statement that's reported i think there are myriad avenues by which if this sort of evidence existed it could it could come up and could create could cause into the world in addition to the fact that this court evaluated that particular part of the closing argument and did not find error the original district court judge did as well and specifically rejected the defendant's argument and i would point to court to the excerpts of record page fourteen just quote the sentence quote contrary to petitioners assertion the th circuit did not find the prosecutor's comments during closing argument concerning petitioners religious and cultural heritage to be improper and so the parts about which this court was reasonably concerned of the prosecutor's closing argument didn't have to do with you know if that had been the case and and we'd found the error harmless wouldn't that be another circumstance where a good cause might be exist to talk to the jurors it could be your honor i think that as the district judge said here judge campbell in his order it's a case by cas analysis you look at all the facts involved in the particular case and he did that and i think that if this court does as well it looks at strong body or procedures certifications that they were not making decisions based on racial bias and sixteen years of yes your honor it isn't a review for whether there was an abuse of discretion in refusing to grant relief under will sixty be that it's supposed to be rare and extraordinary so even aside from the clearly irreconcilable point even on the face of the world sixty b it is hard to say that it is rare in that this case merits rare and extraordinary circumstances to reopen a judgment so i take it it depends on which part of your friends argument we focus on if the argument is and i think this is as broad argument pena rodriguez says you he must be allowed this discovery as a matter of law then we would you we could have an abuse of discretion where somebody applies the wrong rule of law if the question is different which is why did the judge abuses discretion to deciding there wasn't good cause then we would be quite deferential but in the st circumstance it seems to me we just try to figure out what the  district judge made a legal error here in terms of whether opinion rodriguez says you have a new constitutional right to interrogate jurors that i certainly understand why this court is going to is not going to review that with with the deference that it would afford to an analysis of the facts but i don't think that there's anything at all in the record here that would say in the language or the reasoning opinion rodriguez that would suggest such a thing i also would note your honor that  there are very real harms to the jury for not just talking about a role that's applied formalistic lee this was a very gruesome case that these jurors had to sit through for almost two months and the district court did promise them as they walked out those doors if you want to talk to someone that's fine but if you don't want to do that no one's going to come put this into your head again there may be circumstances where that promise has to give way but this isn't one of those circumstances it was a promise that that is worth keeping very important interests in the context of a case like this in a different case it may be different but when sixteen years have passed you're unlikely to get the information finality interests in the judgment have settled in a case where it's gone up and down the federal courts of appeals twice and has been uniformly affirmed and all the jurors may not even still be available they certainly can't be said to have particularly fresh memories of what happened so the time industry requirement does a does have a very important function in himself as a party my understanding of the status of that case is that there was an oral argument scheduled in mid january before the d c circuit and so until he's a party it wouldn't affect the outcome of this particular case i also think  is to serve an important function as well in this particular role because the court has expressed concern going back to the fifty's in the northern pacific railway case about the types of questions that can be harassing to jurors and the manner has to be appropriate and the content of the questions has to be appropriate so again i know i'm not sure you need to go there and this is what concerns me let's assume we have a case with a strong showing of racial bias if you're better newspaper statement yesterday said  we all got together and decided to have a good idea to execute these indian i'm not sure under those circumstances that a little cool that restricted you to written in iraq or tories would be sufficient that's not your case but  that's why i think judge kristen was trying to focus on the parts of the rule separately once you establish good cause the question of whether the rest of the rule might stand up under scrutiny strikes me as a hard question i think it would be a hard question really depended on the facts of the case perhaps there could be circumstances in which a requirement of written in iraq or tories would go too far although this particular local world does contemplate that you can take their word in a rather tori's and go out and do a personal  conversation because after that in the world it says and then you can file a nd affidavit reporting back on the on the conversation but i do think the courts have a very broad discretion as to how they craft the types of interactions requirements to strictly i agree it could happen in iran or i don't think that there is anything on the face of them that is suspect and certainly on the facts of this case since it doesn't reach that far i think it would be hard to say it would be an abuse of discretion for the district court here back in two thousand and nine to say your six years on timely nothing has happened in the six years that's relevant to your motion and you haven't followed the rule in providing an iraq that's an independent basis do we have a case of discussing circumstances where jurors have been asked to verify not only that their own verdict was individual vote was not infected by racial bias but also to certify that the that the a verdict as a whole was not that we didn't witness that i'm not aware of that your honor and the certification here does say each of you individually you know were they all did sign one form each of them put their name on that one form writing up a but you heard opposing i don't mean to take up your time but you heard opposing counsel's response to that which is it's one thing for a  or to verify that he or she did not allow her own vote to be infected by racial bias and it is i think a fair point that in cases where this is raised it's virtually always raised by another juror reporting having witnessed something particular over here a comment within the confines of of the jury deliberation and that's exactly what defense counsel wasn't able to explore i agree i think it is most common that it would be one juror reporting on another juror and so the certification in this case although very substantial protection is just one part of the many protections that existed right so just just quickly i think your answer answer this question my my my question was do you know of any case that will give you what we've addressed in that type of  certification i have not seen it and i'm my i'm asking whether you have i'm not your honor and i believe that i know that this is in the language of the statute three thousand five hundred and ninety three f and so i believe the language of that particular certification was mandated thank you i see that honour's the government mentioned that the facts of this case are are gruesome i agree with that i would like to highlight that the defense maintained through penalty phase that ms there was very little evidence that mr mitchell was a direct participant in these murders and we stand by that your honor judge kristin you were asking me about good cause and i want to make sure that i've answered your question as well as i can our bases for good cause are st of all penny rodriguez that is a major change in the law six o six b as existed in some form or another since the seventeen stated that so so we've already addressed that point right long before paying average i believe this court suggested that there may be an exception but never affirmatively made that finding and told us that we certainly invent at least for my vote to take that racial bias exceptionally seriously absolute yes you're right so i think i've tried to telegraph really clearly that those other parts of the world of the more procedural aspects of the rule are not what's giving me cause for boss here which is why when you came to th to the podium that back up to it i was hoping you're going to speak to what's your best shot so that there was that initial what i think is a threshold requirement of showing of reason for concern about racial bias in this case yes you're wanting to speak to a good cause and i understand have beside you agree so a few things i would like to highlight that this is one of two roles in the end all the district courts in the th circuit thirteen of the district courts out of fifteen would allow this evidence to come to me to try again yes  principle so that the lack of an investigation i think is good cause and enough itself i think the risk of racism particularly in a case that was systematically excluded native americans from serving on this jury for the reasons we've outlined in the briefs and only resulted in one native american on the jury i think that's good because the supreme court in penna rodriguez talks about race as being an exception to these ideas that there is a presumption that juries don't operate with bias again a recurring and for milieu evil that's what we're talking about that that's good cause i mean in any death penalty case with a requirement of heightened reliability and anti arbitrariness this is the only case in the th circuit where this type of investigation wouldn't be allowed there's four people on federal death row from the  th circuit three of them come from districts that don't bar this kind of investigation at all why would mr mitchell need to be that that one exception the purpose of this rule is to protect the confidentiality of jury deliberations the supreme court has said that that confidentiality gives way when there is a concern of racism this case is rife with concerns of racism this is again the only native american the government rejected the native americans request that only seven of the jurors found the navajo nation's plea for this man's life to be mitigating that is very concerning and the fact that we have not been allowed to perform the investigation that virtually every other capitol  before this court that is extremely concerning and were it not for this court's intervention this man would have been dead two days ago how we could let this execution proceed without a thorough investigation is deeply troubling your honour's and i don't understand what the government's concern is we employ professional highly skilled highly trained investigators no one is going to be harassed or interrogated or abused it we do this all the time my office has been in existence for this capital have you seen it over twenty years and not to my knowledge in the ten plus years that i have been there has there ever been a complaint from a juror about misconduct on the part of our investigators thank you your honor solicitors for the questions