and i want to start by emphasizing that in this case we are once again the this court is not very often addressed the issue of the juror who has expressed a problem forming the law and other circuits also have really rarely addressed that in the brown case this court scrope a step problem and in brown after some limited  duty in the or in the record as to whether or not that juror had some doubts that were evidence based or the juror said that she had her he had some problems with the way the evidence had been presented but initially had to cater did he have a problem with the rico law and he didn't like that law didn't tend to follow it so the brown case in in cases following brown from this court didn't has not moved away from ground zero to clarify brown basically saying that if there is an independent reason it is not at all linked to the jurors view of the case the th amendment because there's a right to demand a mistrial based on the twelve jurors who began deliberations into that oh so in this case the juror sent a note saying she had problems with  and the court's initial assessment is intuitive assessment was correct he said i assume we'll have to talk with the juror to understand the concern as to whether it's an evidentiary basis concerned or not to remove the juror and dinner the court didn't have a sufficient inquiry into whether those employment base concerns were real or whether they could be worked on and someone so there has to be some mental distress you felt that alone was enough to ask her replacement is that just because of deliberations you mean i don't want to get she says the whole thing the judge said the whole case she said the case involve a case obviously involves evidence to many jers big case means the prosecution case she could be having problems with the prosecution case but in any event it's ambiguous what means i have spent hours trying to figure out what that meant so it can i ask you those are the key lines that you rely on in the transcript and in order for us to roll in your way based on brown and those cases your your argument is that we have to conclude that the minute there's an exchange about emotional and mental distress that necessarily that grounded in a possibility that has an evidentiary foundation even though there's nothing inherent in that that tells you that it would be an evidentiary foundation there has to be some narrowly tailored limited in what is the nature of your concern now did you i just said what is the nature of your concern she might have provided a little more information but all he said is is it just because the deliberations nothing change in brown course says when i ask you that question when you follow the course instructions you would say no because i don't like the law that's not dissimilar to what happened here because that's focusing on whether the jury can agree with the law and then the voluntary answer was it's the way it's written and the way the been for the for the court to say you swore an oath to follow the law you were instructed to follow the law and i did that in the apple eval case from the th circuit go back of and and all of the court's instructions but if you have conscientiously held you about the evidence of course that is something you can hold on to so the problem in this case was the ambiguity had to hinge in such a case where the so much at stake your life sentence the judge simply did not ask a very limited question i mean were we i was you know said no i don't have problems about what about the evidence i i just don't like the law now there is in the guillotine really important here because it pushes on that you're with the case and it makes the recognition that a juror just really disagreed with the law and the instructions on the law that had been given to her and that she wasn't going to volunteer that it was something else going on unlike what happened to him around in brown it is absolutely the case that it was that her he himself who said that he had a problem with the evidence he said both that the evidence he said you know the way the evidence to come out and then he also made the remark that you know if it wasn't just ideas for the law he said if the evidence had been presented in a way that was consistent with the law in other words that was a jerk who was clearly signaling that his disagreement with the law was so mixed up with the that she simply couldn't follow the course instructions so the what about the part where because i don't think there are a lying on this exchange or other part of her no that deals with the law or the exchange that deals with her inability to follow the law there is a separate question about emotional distress yes and do you is the government's view that when somebody raise a question about emotional distress that just doesn't involve any possibility of the emotional distress want to get in you know he starts to say i don't want to get into that she says the whole case and just hope it doesn't end there but i think he had to be very careful not to sort of interject on his own started inquiring about the evidence and that would have peril because once you ask a juror either about sort of her own view of the evidence she may start telling her substantive view of this that's of course for the jurors to discuss back and in the jury room but then in the follow up questioning it becomes clear what she's concerned about she says she strongly disagrees with the law and she feels this is serious because it's someone's life again that is fully consistent with the view of the fact that she simply disagrees with the law as of course it's now been explained to her and you know again doesn't raise the question of whether or not she feels that the evidence is the problem and i think here there's a big distinction between the surrounding circumstances  around and what happened in this case as judge over recognized in brown the jury had been deliberating for i think five weeks that there had already been a note from the jury that indicated that there was a potential holdout juror because difficult to sort of phrase or frame well so this is also possible she didn't understand the law and the basis of her disagreement with it was her lack of understanding of what the instructions  wording but i believe at the beginning of the case they are swearing that they will follow the court's instructions that they will really do that and to and to be fair impartial and i just wonder if this is an easy to get out for three jurors who say i'm a can follow i can't it i suppose could be a possibility or i'm not sure that a lot of distributors will want to go that route necessarily because it could be yours after all that you have to make sure that they have a jury pool that comes back a jersey contempt over something like this might be a little bit difficult i do think that there could be situations and there could be cases in which insurers responses could signal to the court a lack of understanding or maybe a misunderstanding of the law but i think again there have been don't know sent from the from any of the yours asking for clarification of the law as near to the defense counsel never as the judge has to inquire about what the  to make it clear to clarify the law to this your so we respectfully submit that here that ambiguity isn't present and unlike in brown the district judge here did not use his discretion against him without telling d you know what's going on is it because of a personality conflict is it because of disagreement and if that became clear that there was a disagreement between the cops perhaps one more question isn't it  a disagreement over the law or is it something else without telling me about the nature of the issues then potentially that kind of a question could be asked but again i think it would be very very difficult to do that without potentially intruding into the liberations and here i don't think that kind of a question was necessary because again did your didn't say that this was because of deliberations she kept coming back to the fact that she disagreed with the law and the instructions of the court