honor and i think it's very important to to look at where this all began this began with the court on the morning that that was the liberations were going to begin the only thing that was remaining was the government's  and the judge called everyone and said that there's been an incident that was reported to her by the marshals this is critical she said to the council that the marshals had informed her that there was a discussion on one of vans that contained some of the jurors and that that discussion revolves around a juror indicating that she had a communication with her sister that morning either by facebook or some other electronic means and that the sister report either that she herself had been a juror on a case where you don't you burn it was return and later it was current if that person was found not guilty or determined to be not guilty and or someone that  close to that conversation never occurred and we learned that through the one of the year but what happened at that point was the government before anybody here moved to strike both of those jurors sa by late in the court's instructions clearly they did not as we stated in our brief all the court ever buys the jurors was they could not discuss this case it would appreciate discuss any other matter anything of at the district court's credibility finding and give it deference i mean the district court judge was the one who was in the room with the people she's the one who spoke with the jurors and she found them to be a base art shouldn't we give deference to her credibility finding her determination on them the record doesn't bear out her finding judge and i have knowledge in my brief that that's a very difficult thing to do and your hon brings up a good point we weren't in the room so we know there's a lot more than language that goes into any of these things but if i could just make something out that i think is is critical here your honor and i'm going to i'm going to speak to journal on this issue of news that's one of the jurors that the judge really honed in on this this theory of the base of miss a page three thousand one hundred and sixty one of the record in commenting about juror number five the judge found her answering the judge's questions trying to answer the judge just questions journal refind said would you consider one of the statements what our legal system is here like she wants to tell her about that conversation and the judge says no no i'm not interested and then what happens when we get to page three thousand one hundred and twenty four of the record that you're number five again volunteers to the judge what you don't want to hear about the books and somebody mentioning juror service in another country and then finally the judge lets her discuss that so i thought if i could just take one more step back just to where i was beginning which is when the judge was an issue  questioning these jurors she was doing it in her mind there was a conversation that someone sr i related information we know from all of the jurors that conversation never took place it's understandable that marshall's drive in the back he can't keep track of these conversations is wrong so when the wife here comes out we find out he's wrong but at the beginning of the year the judge was concerned why isn't anyone telling me about this conversation no one was mentioning the conversation because the conversation never occurred so what the judge was seeing as a base of missed was probably quite frankly confusion at lot of these jurors as to what's going on if i could just draw the distinction what the judge said which which was very disturbing had at some level was then she was concerned that someone who discussed the fact that innocent people are sometimes wrongfully convicted would not be eligible to serve the question it needs to be asked and do not judge is well not knowing that which by the way we all know by knowing that i will down effect your ability to serve in this case because judge if i could honestly say sometimes the jury will say yes that's too much for me yes i can't do that i can have someone's life in my hands i'm big many jurors sometimes that happens but most times a jury is going to say no i know that happens but you know we're here to make sure it doesn't happen and quite frankly not is why they are here so if you're unsure this is before we go on to the the case to be reversed  i don't see it and i understand that question completely because i don't understand how can i say to this court that the result would have been different right i can't read anyone's mind either but what i will say is there was no basis to excuse her defense attorney indicating remember we're a producer missions this was a juror that was favorable to the defense in his opinion and no one disputed that no one said you're crazy i watched that your how do you even think that we if we vote and even have tried cases we know one thing we know how at the end of the case when you're someone you know the people who are listening to you and mean can you case in this circuit any rd circuit case where the court found it use of discretion in a decision to remove or retain an existing chair or where that was done and th this was mr stafford was a purely nonviolent peacemaker when he arrived on the scene and yet now you're trying to say that there's sort of the theory that he was so caught up in the heat of passion that he only committed manslaughter rather than murder those appear to be diametrically opposite how do you reconcile those so he could hear on her in this case the judge instructed the jurors that they needed to find mr stafford guilty of murder as it is  exists in the state of maturity in the state of new jersey it is absolutely clear and i provided the court with the case law that if the elements of passion provocation are present the court has an obligation to charge that think about that and it makes logical sense and are in new jersey that's what the court order requires this time for testified jurors don't believe this story makes no sense ok what we do encountered mr stafford after dawn has been pulled on him by i and williams that he was in a heated state that he was upset that's what he said he said he did moment upset that they he just wanted to go back to the  judge would independently consider lesser included offenses to this to the crime i mean that seems it brought in a lot of obligation on the judge when it's something that even the defense didn't request i can let me just step back when you say a lesser included offense yes it is but it's more than that he adds an element to murder that must be disproved by the government here if my trying is to be convicted of murder under new jersey law and that's what as the statutes written because what would happen if it was correctly charged is that yours would have been advised that they had to make that additional binding as part of their murder finding which is specifically has the governme not there new jersey's murder statute is is comprised of bull the statutory language and the case law that is and that's what we're talking about here the law of the state of new jersey correct that is a part of the manslaughter statute but murder doesn't require you are to require the government to disprove publication so that's the st thing but does big picture here i think the record allows this court to affirm stafford's conviction for two straightforward reasons relevant to this argument the st is that even if mr stafford never invited or waived the instructional ever he now claims he can show that there was a rational basis for the told the court we asked the court by their record the interest in the charges the government to take the lead in tracking the charges the government also provided those charges to the defense counsel before even submitting them to the court and and several parts of the record the defense counsel made a record of saying hey we looked at these instructions were working on them and and at the end told the court that they agreed with the instructions except pill imitation on on the extent of an inconsistent offenses if there is an inconsistent offense that requires untruthful testimony the court puts a cap on the supreme court has happened that i didn't do it in new jersey in the state versus how didn't the new jersey court say that provocation manslaughter instruction was appropriate even when they defended testified that he had an alibi and was not involved in the homicide that seems to the i guess i should back on the st maurice c e o and kristan i believe the other case in new jersey they required to require the defendant to or the court to assess whether or not there was a rational basis for the instruction and so that's because that there was inconsistent defenses in the powell case that that that line that canst millions no longer relevant after you not comment on a statute that says hey you need to have a rational basis for this instruction let me go back to the st issue for him mr ramsey counsel has already to list that this conversation is purported conversation on the van never took place is that your understanding of the record that's not my understanding at all judge this the u marshal came to the court and relate on a conversation that he overheard and the court that under advisement she advised you tourney's of the of what the scope or the likely scope of the conversation she didn't know none of the parties know and an inquiry was conducted with everyone's consent and so for counsel to say now that this conversation never happened even after jurors said on the record that conversation did happen and it took a while for them to get there but three jurors had the conversation if it was improper and the defendant could show prejudice then it would be a retrial but the point you're saying you don't have to show prejudice based on a hunch that you're far was appeared to be listening in such a way that that particular person might have been favorable to mr man's call it that's corrections and i do want to point out that it has troubling to me that that assumption is made and the only reference on the only basis for that assumption is the fact that the term was african american that's what that briefing suggests and it's not something that i think there's quite should to be fair right i do not know whether i have not seen in the record that the person was not and the only reference was to the fact that she was african american you know when you get when you have somebody with the experience as a man does there's a th sense you get with respect to jurors and his impression almost from the outset was that this particular juror seemed to be listening in a way that he had a real chance of getting this particular person on his side you know that zero dollars fifty cents a small midwestern tell my luggage a cup of coffee but you have to get somebody with that kind of experience so some deference because he's done for so long mr mcmahon wasn't trial counsel mr mindy was and i can't speak for mr  impressions but it's pure speculation at this point judge and in that respect jurors both sides big jurors who are designed to be fair and impartial that was what we thought and that's what we felt we were getting throughout the trial and the or that the defense counsel's comments both now and at trial beg the question of whether they actually thought they were picking jurors that were going to be fair and impartial that's the whole system and simply because someone is nodding doesn't mean that they agree with everything you say where they probably can't or that they can't be persuaded otherwise when they're in the privacy of the jury room talking with other folks right christchurch and at the end of the day this conversation is is really we're talking about a fear that that the that jurors or at least one juror brought decided on one day to bring to the attention of other jurors and other jurors engaging in that conversation in some way minimal or not so you know the judge had every right to to be suspicious of the fact of whether or not these jurors at this point in the trial can be fair impartial based on that simple conversation and i take it in this case the juror the alternate jurors were presented with all the evidence they're presented with the charge and they were properly instructed when they served as their the the actual jurors correct that's correct as they were there from the very beginning and both sides are agreed that these folks should be alternate jurors that's correct and i would add to that when the government moved to strike the two initial drizzt the two jurors that that the marshal mentioned were part of this conversation the government didn't know who the jurors were the most to strike based on this idea that drawing the occasional was could be part of the reason or could be that the long term effect of of having jurors on a panel on that are our message i think and i think the government has recognized that also basically he's making a statement based on observations made in the room that no one contradicts another issue is yeah got together who said we have the greatest system in the world this jury system and these jurors on that day and we're having that exact conversation much better this is how long was a case in spain where someone was wrongfully convicted and that's not a good thing it was never a sister a thing like that a conversation about another system of justice where we don't have jurors that makes you qualified to be a jury no that makes you qualified to be a juror that's why we don't want from our jurors when you're really face race or not i've heard you tell us that it didn't take place not a conversation about somebody's cis