appreciate everybody getting here i know for me anyway yesterday was a challenge with air and air travel hopefully everyone made it and ready to ready to go i think we have season attorneys here who are well aware of the rules but i'll just remind you that we have a light system green light you keep talking yellow light means you need to wrap up brad might cut it short and less we keep you up here we get to do that you know that's kind of how it is i'm a please give us record cites if you are referring to somewhere in the record and please recall that rebuttal is for rebuttal only and not to bring up something new and that the court has the discretion to dismiss a juror and it's within the course discretion whenever the judge becomes convinced that a jersey abilities for perform his duties have become impaired this this court  to be dismissed in this case the court never spoke to the jury but we don't have any case with a bright line rule requiring interrogation of the dismissed your no you don't make so you now i'm very much understand your concerns and i share your concerns but we have this issue of the fact that the person actually they are the judge actually they're seeing the sides does need a little room to move because you've got a dynamic process when you have a trial and the judge is having to weigh a lot of things a little we give discretion to the judge because of that and why should we upset that discretion even if we might have handled it differently had we been the trial judge would disagree with the court  what i will say this in this case is particularly distinguished and the reason being is because it was an impasse this juror when it became known to the court was a hung jury he was he was holding the conviction and so the minute the court becomes aware that this man is the linchpin for potentially a ready hunger for hungary that the then it becomes extremely important and i think the judge kept saying he didn't  how how this juror would rule of course we do have the situation of the notation about forevers so that's a little bit contradictory but the judge said that so are we not to give some credence to the judge's own perspective that the trial and it's in page eighteen of the record where the court goes on in discussing these issues with counsel and speaking to them and there's no question on the record that we know who's hanging who the only dissenting juror is the foreperson makes it extremely clear do we know this i mean the judge the foreperson makes it clear that this guy is not considering the evidence but does that necessarily mean there isn't someone else in the room who has considered the evidence and is arguing for not guilty so is saying under the ad since mr imus didn't do that or didn't do this and is engaging properly where is juror number thirteen is not engaging properly so there may more than one juror voting not guilty but juror thirteen is the one that's kind of the problem and i believe that that argument could be made i won't disagree that that is a real possibility your honor but the reality of not accepting the premise know when he decided to dismiss the alleged holdout juror or this particular juror what did the judge know because the judge kept saying he didn't know how he would rule and i don't want to you know assume that a judge we've got to to look at the court talks about or when there was regarding a preconceived notion regarding guilt or innocence it is to hold the mere existence of any preconceived notion as to guilt or innocence of the accused without more is read is not the same as saying i don't know which way the jury is inclined rule right now i mean wouldn't it be different the judge says i don't know how juror would ultimately rule when i don't know how they're ultimately going to rule by the end of the deliberat but that doesn't mean the judge has no indication what the jurors thinking is in the moment if the four person is saying this person is holding up the deliberation agree i agree with you that i believe that it was unquestionable  the discussions between the court and the four person and the record as it stands shows in my opinion that you can glean from the record clearly that the judge knew that this was the holdout  juror and i believe and that and in the actual facts as say the conviction results thirty minutes later after it so you're talking about something that i believe the record is is that it shows clearly what's going on and so and i believe though in this case let's assume that the only fact that the court was aware of was that the problematic george had written a note that expressed bias in favor of the defense attorney would that not be good cause i agree that it potentially could be good cause well we're reviewing whether it was an abuse of discretion well in him in getting or but so would it be an abuse of discretion i believe that it would be an abuse of discretion to never provide that note to defense counsel to never to bring that note before the court to never on a piece of hearsay evidence that the court never saw the court never looked at just took the word of you're saying the foreperson a lot of been mistaken on what the note actually said absolutely your honor to should should we understand the court as having made credibility determinations as to the foreperson in other words saying well i believe you i do believe that the court has that discretion i believe and i believe that the judge who i have a great deal of respect for has tha this has the ability this to discern that but i do believe that's what should be the reason not to ask for the know gerard there the notes are the unless you absolutely are not going to conduct any investigation  of the the he's refusing to review the evidence in the record will show that the record shows in the four person saying we've shown the evidence he decides to dismiss it he decides to dismiss certain evidence which means that the gentleman is actually awfully nuance because you can get up and testify that the light was red and i can't disregard what you said because i didn't believe you or i disregard he said because i'm just not i'll listen to the evidence and that's the difference here i mean is which one for thirteen doing was he saying i watched the witness i just didn't believe him he was sweating i just you know his story didn't make sense i just didn't believe him or was he saying don't bother me with the evidence i'm tired i have a headache just quit closing my errors you know which one was it and that's clear sort of nuanced i mean the problem like i said is we're not there we're not on the spot the way the district judge is it doesn't mean we don't get to review the thirteen any questions he never brings empowered knowing that this man and i believe well the one thing he did do we talked to him earlier and you're a number thirteen said he was being harassed yes that's correct though there is some interaction between address that on a direct appeal i believe you can in this case i believe the record is suppression the developed because the fact of the matter is defense counsel gets up and leaves the defense table during the united states government's case in chief when they've got the main witness on the stand hollow on in anybody's mind can that not be the clearest example of ineffective assistance of counsel he leaves for over thirty minutes the record clearly reflects to go schedule something and the judge allows him to do it the judge allows him while he's sitting next to his codefendant which by the way the the lawyer for the co defendants the only person who conducted any cross examining nation i have a problem i think he made he lost the only objections with exception of one the only time that this lawyer actually spoke he opened the door to character evidence and the judge lets him know on the record how foolish it was actually go so far as to call his questions silly the reality is i don't know of any court they could not evaluate and ineffective assistance of counsel claim when the lawyer leaves the courtroom during the direct have to show prejudice even when the lawyer conducts himself below average who has put it that way you still have to show prejudice i would say the prejudice is manifest in that your lawyer can no longer cross examine the witness he hasn't heard the testimony he can't object to the testimony he can't cross examine him he's denied his right to cross examine the constitution to confront to meaningfully confront that witness if the lawyers there what do they are diametrically opposed they are now but i mean the government in running unabated to the goal line or to the quarterback or whatever the right i would just submit to the court that in any event when you do not when there's the where the government's key witness is is being cross examined direct examined by the government and your lawyer is not there to even object to even ask a question to even know what the testimony was i would say that that is ineffective assistance of c that right i believe that jurors are yes correct are so did the judge the judge city had a note or an email or and i don't remember what i got back but didn't the judge have something from a j from did he say wow i'm not going to tell you which person sent me a note saying i probably shouldn't be on that you know the judge doesn't but it does doesn't allow aberrate on that but he does beyond the fence counsels o who were asking where did this come from who said it we need to know the judge denies and that eventually that eventually it's revealed in that jury is dismissed at the urging of the fence counsel but but there's definitely a concern that person was around for three days that everybody agree that the jurors should be dismissed eventually i believe that that that's what were the problem with possible problem with respect to a juror you know a government witness it was brought to the attention the court there was a that there was a connection a tangential connection between employment and it was somebody that was and the government agreed to have the witness the dismissed to have the juror dismissed after three days after three days ok you reserve time for about a thank you thank you your honor i may at least there's three issues in this appeal but i think the central focus is on the court's dismissal of juror thirteen so i'll focus my discussion there but i'd be happy to answer any other questions about the other two issues i mean isn't it a little bit of a problem that the you know the judge would like there to be a verdict because you don't want to sit there through a long trial of it have to do it again and i'm not accusing the judge of anything improper but in a lot to be cause here in fact there were three different legally relevant legitimate reasons for just in every case what has happened wasn't there an investigation no your honor in some what didn't you had a case where the court did not conduct an investigation ye states versus virgin mary no involves a medical issue and also united states versus huntress involves a medical issue as well well let's talk about the medical issue  little bit concerned about relying on that in an era where we are respectful of the fact that people with disabilities should be able to live a life and have access to the world the same way as everyone else as best they can and frankly i as a trial judge had a blind ger on my jury and she served perhaps better than any other jerks and the other jurors are very respectful of her and i it's one of the highlights really of my time as a trial judge to see how she served so this is something that somebody has a disability that can't serve her is concerning to me in an era where we are respectful of people with disabilities or should be certainly as a court we should not be saying oh you have a headache you're disabled you're out of here oh you have some issues with memory you can explore those and were direct but to discharge a jerk for th m that's a little different from the person's in the hospital and won't come back for a month i understand that but here this is this has a little bit of a tinge of discrete disability criminal in that concerns me your honor i i disagree actually think the trial court was very respectful to the jurors medical concerns you can tell from the record that the judge had a discussion with the juror on that thursday evening when he asked to be dismissed not be dismissed for deliberations and for the day because of his headache the jury expressed to the judge that not only did he have headaches but he was disabled and unable to work he had to spend a lot of time taking care of himself and gets tired easily and then the juror also expresses to all of his fellow jury members that  he has as has a disability in the four person testifies that he has short term memory issue and he has an inability to grasp what's being understood and if the medical concerns were all were the only in that we are addressing it would be a much closer case but that's not the only basis for the dismissal him version marina when you said there was no investigation and yes your neck case didn't the judge talked to the juror who said they had the mental problem discuss the medical problem with that particular thirteen did the judge talk to thirteen not after talking to the foreperson however the judge had just overseen a two week trial had had several interactions with juror thirteen and was much closer to the ground and could understand what the dynamics were and could make the assessment of what type of investigation was needed at that point and i think we need to credit the fact that the judge we shouldn't view this incident in isolation we have a job that's part of the problem because part of my problem is it took him three days to deal with a juror that he had a note or something because he said he didn't recall i guess what he had or how we knew but he revealed on the st day that there was a juror who sa there's a witness victim who is my coworker and he didn't even reveal that he wouldn't reveal the name of that person to the party yet right yes your honor that is all right so so i'm not looking at it in isolation in a but if a writer other alternatives there was one other alternate in fact so if there was such a problem juror thirteen that were supposed to consider that that's part of the mill you have this case then why not substitute jour reporting and say well you know journal thirteen has all these issues i think we should just let him go in and substitute your fourteen and that would have been better at the juncture before you know our bicycle role certainly in hindsight i think at the time the substitution occurred we were not aware of all of the issues surrounding journey thirteen some of them came up obviously during deliberations and then when it became clear that juror thirteen should be dismissed for these legitimate reasons the court attempted to find the nd alternate and they could not locate him or her so in the in the federal rules of criminal procedure do allow a jury of eleven to return a verdict and that's what happened here is madison i just want to understand you're not agreeing with judge agrees that thirteen was refusing to consider evidence he was quote adamant about not looking at the evidence he would be shown and he would just dismiss it to the foreperson testified again and again this was a problem versus doubt that case dealt with outside influence publicity on a jury this is a different case in the court has been really clear in edwards and in united states versus webster which is cited in edwards we treat differently outside influences on a jury versus inside influences this is an inside influence that should actually argue in favor of the defense here because you generally aren't allowed to inquire into what's going on behind closed doors in the jury room that's one of the most sacred spots if you will in our system exactly for the reason that people have a different way of i mean this is why we have jurors twelve ordinary men and women tried and true who come there to just judge their peers and so the whole idea is we're not going to delve too deeply and as we discussed with council offices the fact is the difference between my saying i disregard what you say and i disregard evidence period is kind of a fine we as lawyers get it but the ordinary person not so sure that they would make that distinction so the juror thirteen could have said i don't want to see that evidence because you're thirteen top out witness was lying or that evidence was not persuasive not that juror thirteen was saying i'm considering any evidence don't don't bother me with the facts right yes your honor and i think the approach that the district court fine balance there especially after when deliberations begin to protect secrecy you need to investigate your misconduct but you proceed cautiously and that's what the court heard this is kind of getting the benefit and the debtor of that the judge was willing to inquire of wonder what they thought the other juror was thinking and doing but not of the juror that was doing the thinking in the doing i mean why not bring her in every thirteen and say look you took an oath you're supposed to consider the evidence are you not willing to do that i would have been very helpful because i could look him in the ah and he starts shaking a little or not looking in the judge back in the eyes and so forth make credibility findings but here they got half the information found out juror number thirty had written this no which we haven't seen ember thirteen was not considering the evidence dirtying had the short term memory problem all of that we're hearing from somebody else so how is that respecting secrecy if you're otto's in what one person views the world as you are certainly the court could have put your thirteen on the stand and questioned him as well he didn't in this case but the approach he took here was permissible and appropriate in scope under the record again the  in the record i believe it's that one or forty seven over to two thousand four hundred and forty eight and the court said listen i didn't tell you this at the time the juror disclosed much more to me than i needed but he said he advised the court that his health is a large issue for him he spends his days caring for himself and making sure that his health is his st priority that includes regular rest taking various medications so there was a there was an extensive discussion that could characterize a lot of people we don't disqualify them from the jury yet back to my original point and i'm not accusing them this is a judge of disability discrimination but i did find the briefing to suggest that that would be disability was but there's indication that from the four person that whatever his condition is it's being exacerbated he's having problems grasping and understanding what the other jurors are trying to communicate to him and then again it's not just for medical reasons i had already said he thought the other jurors were kind of you know bullying him and i mean again i don't mean to keep referring to twelve angry men i just saw the play fairly recently but you can see at the outside of that play how much they are beating up on the one holdout and then by the end of the play and close your ears if you haven't seen it you want to go see it it goes the other way and the defendant is found not guilty so we know the one holdout juror can become the person i mean again i know that's a play i don't mean to put too much stock into that but i have had the experience of being the dissenting vote with a panel and then end up convincing my other two colleagues and and vice versa so it can't happen that the one person who thinks something differently than everybody can persuade the others and that's exactly why we have twelve jurors instead of one i don't i don't disagree your honor but again here i think we need to look at the tat  disability yes i can imagine that when the judge was going through the qualifying process to determine who was going to be seated on the jury a question didn't come up about whether or not there was some health issue or anything like that that would render a person on able to sit on a jury so unless those questions didn't come up he would have had to develop a disability during the trial that prevented him from being able to deliberate that did not exist at the time that the judge was qualifying them to sit on the jury you'd have to believe that something like that happened in order for him to now deem him disabled to sit in deliberations when during the course of the qualifying process to determine who was going to sit that wasn't a disability but let me get to what i'm  defense counsel did ask for the note to be preserved after the verdict came back and the judge said i don't think i can do that i told the jurors their notes would be shredded this is a very unusual situation when i say nobody  if he did not he didn't he only said was that i told the jurors that i would shred their notes but then you can't consider a period end of story you can't have it both ways you can't say i'm going to treat your notes as totally confidential but i'm going to dismiss you because of what you write on  know that i'm not to look at i just don't see that that's considering evidence it's not the who are you that's just fundamental to our system that you don't do that now and i understand the tension judge but if instead of writing it on his notepad let's say that juror number thirteen had his fellow jurors bric brazil is number one what else is there more to say i do think that that could be appropriately than before the court got to germans conduct investigation and so here again it's this tension where it was written the four person saw it he testified credibly to its existence nobody questioned the no sound that is a little bit different because when i am like i'm writing notes right now i'm not expecting that my colleagues are looking at them unless i write them and and so it's supposed to be for me and i am not writing anything i don't want them to see but if i did i would expect them to look at it and so if this is supposed to be confidential and he writes something himself and you're saying that he didn't share the note with others and i just  then how is that consistent with this whole confidentiality of the notes to treat that is the determining factor to hear it again i think i think it goes to you need an impartial jury and when there is evidence of consider a piece of evidence the judge has said is confidential and shouldn't be considered and shouldn't be preserved that's the problem with it you can get to me that is having it both ways to say i'm going to consider the no but i'm not going to consider the no i understand your honor and i'm not sure if just like i'm not going to tell you about this no email or letter or conversation or whatever it was however that a coworker of a witness was on the he wouldn't tell anybody how i knew that i believe he did say that he received a call over the weekend or chambers received a call over the weekend explaining the situation between the coworker and the potential witness  yes yes so i'm i understand that your diary on the table and i looked at it i mean that i don't but i don't think this is this is a diary and yes it is his notes but it's part of the deliberative process and the judge and the judge had to proceeds in a sensitive manner just wholesale taking journal or thirteen's notepad probably would not have been proper  she calls with the best sense for her deferential standard and we're stuck with that for better or worse i'm not disagreeing with the standard it is the standard how can you overcome that given all of the nuances and absent downs and back just i think when you look at the the totality of what happens in this case when you look at the one sided for better or worse investigation i can't i don't think that i would call it that knowing what the judges knew knowing that there was one holdout juror knowing and when you use the reasons for medical reasons well the gentleman sat there in new jersey trial for eight days never had any problems to they started deliberating and he couldn't and he wasn't falling in line and so i believe that there is an abuse of discretion when you have this set of facts that you've heard and you can infer because and you can know what's going on and the actual result is exactly what's before this court thirty minutes later she conviction the  t speaks for itself if you just look at the actions of everything around it everything everything from the from the note to only cocking to that one juror no four person who allegedly saw this thing through a clear plastic they revealed that and so there he said as i recall correctly from wrong during board year that he knew defense counsel from high school that he could be impartial yes or yes or and when you the number want that presence number one conclusion came from high school or do we know that it came from the trial in my view just did a really good job a trial i've had jurors say you know this is the floor was really good you're like i would submit to the court not but you could be at the number one loser you could also be the number one based on your conduct a trial and i don't know that that would make you biased as a jerk to acknowledge that look that that lawyer just cream the other lawyer just really undercut them in everything and i will do i need to say more i mean that could be why the man we don't know it could be that he was remembering him from high school when he was selfie untasted in high school or it could be that he is responding to the trial and the fact that this guy just blew everybody else away they were or it could be that he said to the court during voir dire that he could be impartial and he was not being candid with the quote could very well be that if that were the case that would be justified dismissal for good cause would it not it would be it would your honor but he's in the best position to know that we all can never ask him anything of the argument is this the court by dismissing juror thirteen ensured a conviction and that's the reality of the case before the court and there was no one but there was no investigation as to him with respect to anything else other than the poor person his medical issues all that and now which one addressed briefly then he asked for a break it was seven p at night when he asked for a break they had been there all day and was there ever a time in the trial before that he had some concern that you know cause them to have to take an extra break or not not to my understanding judge you'll be able to sit through