know you're honest peter goelz shutter for the appellate like reserve two minutes rebuttal please i'd like to reiterate if i could the factual basis for palin's claim that actual misconduct by the jury was committed rather than simply being an allegation of misconduct appears to be the way the error was defined previously i think there i think it's important to make that distinction because if in fact it was misconduct there is a presumption of prejudice that was never rebutted and or a need for more serious investigation of the outcome of misconduct than was conducted in this case so i think we have an unusual situation in that the misconduct of from the other jurors their opinions that the thing that was guilty so that's the status of the case before the court before it calls mr stewart yeah now instead of holding a hearing with the parties present the court hold camera hearing with no one present and recorded and with no none of the parties present even the prosecutor was was was not really what this wasn't hearing was well it was a off the record discussion with their words and based on basically telling stuart out of a case without giving away any any anything about people who had told him i would imagine here and again we're speculating here without the court having still held a reported hearing but interest in doing that and companies it's not it's not a motion there's no follow up by the way before we go ahead and and i guess i guess they had to bring up an court to listen to the tape recording of the couple who who had first hand knowledge of stewart's statement the court had no interest in listening to that tape that's on page five of the same document wasn't interested in that the court also expressed its impatience but the cost of th trial repeatedly said it would be good to have another trial and was concerned in a small county with the fact that this now was that the second trial first have been reversed and you know the history of the case in terms of the previous jury misconduct in the other the other things he did improperly didn't disclose that his daughter had been or a relative been raped even though we deny just pacifically a during voir dire process so there are lots of problems with mr stewart beyond what he investigated about the case and knew about the prior trial history heartens background like after that had been discussed a test counsel clearly in my view was of the belief that more was required of the other jurors and what he doesn't say any more up their minds until they begin to deliberate and at that point the defense counsel didn't say well what did you find out from mr stewart kins to me her conduct of the other jurors he doesn't ask that is he even the prosecutor saying i'm not sure he's talking about an ultimate or is talking about i think he's talking about stories the chances are he told these people he's probably shooting his trap off to other people as  it was certainly clear that everybody knew that stewart may have been a loud mouth and talk to people including people maybe alternatives to were there so and then then there's the resolution of what the process believe that should be required of the times council he brought it to the courts attention he asked that the court require the other jurors these agreed which stewart had affected them and the court went about that its own way as many ways to make motions more forcefully than others to renew them to this record is the clearly established rule that the california court failed to apply well the course panel to investigate serious allegations of jury misconduct which is the essentially this th somehow there's no further evidence of the prejudice and somehow therefore maybe the presumption of prejudice should not apply but i don't think we should reward the trial court number one for holding a hearing without it being reported which obviously that was never any kind of an indication that there was any belief probably drop before the court there's plenty of time for that you raise the state he just brought it forth in fact that was the state of the procedural record in the state court this is this is not something that was ever argued by the state before so i think at this point to suggest a defense counsel is remiss when it was never argued previously and when the opportunity to bring more details before the court may have been present the state has passed and i don't think at this point and i think i  not required the court had the motion before it it knew what it was going to do it had its own procedure in mind and did not follow the united states supreme court precedents in conducting an investigation the court the arguing the court below is always been courts and that's next and we found on page three of the same transcript so the court had the opportunity to have a couple then and find out precisely in more detail what stewart said the fact that it started out as double hearsay doesn't mean that that's the end of the discussion because the question is not how the source of the information started the question is how credible how serious are the allegations if the couple truly was anonymous and could be identified that the one thing with the couple could they offer to bring the couple in the court could have at least a limited one level of hearsay yes that's certainly could have happened but the question i think at this point and under the a t p a is whether that was required and whether it was constitutional or not to do that and i think that the answer to that is clearly no this court in two previous a t p a cases and tracy has held that the u s supreme court has never clearly established that there is an absolute duty to investigate every claim of bias and i think that the court is right that there has to be some threshold of credible allegations made which was not in this case this case the record snowfalls of a judge who wanted get the second trial concluded and there'd been joining this contest in the first trial and it's very hard to see how either the judge or defense  it was but i think there were enough facts presented that everyone took it seriously for example stewart said he thought that the defendants had bribed some of the witnesses which in fact was evidence that subsequently came out so that showed that stewart did have some kind of knowledge of the first trial sufficient to show that he was probably biased and that of course the allegation that his own daughter had been raped that he didn't disclose during or dear so those were specific facts that everybody on hearing those three that he should be excused nothing of the stuart happened with these eleven the entire rest of the jury where there's  broad claim oh everybody else thinks he's guilty too and there's no indication that this couple had had dinner with stewart and the rest of the jury so they hadn't had any personal contact with these other jurors to reach that kind of conclusion and it was again thirdhand hearsay so what happened in this hearing was the defense attorney did make this kind of passing remark about questioning somebody about this other allegation manage the jury and several times in this excerpt i provided the defense attorney agrees to that procedure and doesn't say oh i also want you to inquire of the eleven jurors he agrees with the procedure of  mohnish them and that will be sufficient so as far as the question of what exactly happened i think that answers it that it was an initial passing reference that then counsel subsequently agreed to the procedures that w tested i also think that it's clear from this record that there wasn't some kind of inquiry with jurors stewart the court said let's see i'm sort of stuff  expects me to bring him in and tell him that he's excuse and later he says the court says now he doesn't he just do it doesn't have to look at anybody and i'll just say enough information has come to the court through the attorneys and that and we don't know what the answer as well the parties agreed that that was the best approach in order to ensure that the couples identifying information was not revealed since they appeared to be truly afraid  would retaliate in some way i mean that was even the defense attorneys request that the court be very circumspect when it was talking to stuart about how this information had come forward that didn't answer the court's question on and then it never came up again all the parties agreed that they would admonish the jurors with which the court did that's on excerpts of record eleven and that that would be an appropriate procedure to do now what again when you overlay that with the a t p a requirement says this court has to do the question is was it and reasonable for the court to say there is no duty to inquire of each individual juror under these circumstances and there's no supreme court authority that requires that even under circuit law there is a flexible test which allows the court some discretion in what to do and there is obviously some threshold that must be met at the bottom of page three of the record i think we should just get rid of mr stewart and number eight i think that is get rid of mr stewart and then admonish the jury that and then there's this you say that they were concerned about being circumspect so that stewart didn't know who the source of the information was but that what is that got to do with going to the next step yes he could be circumspect about the source of his information but the question is given the information what to whom and what had stewart said to the other jurors that's clearly what cain was looking for  what that sentence refers to and again that's the only time that was raised or how many times it have to be raised i mean this whole thing is unfolding quickly this is a conversation i mean the time we've been talking would occupy and on page eight the court says i'll talk to the jury again mr cain says i'd appreciate it and elsewhere in the new juror and you know when we swear in the new juror i'll go through the admonishment mr cain again says i appreciate your honor of the pool of the encounter jurors has happened and everybody saying well you know everybody agreed with this but the judge just missed the point that the lawyer raised now yes the lawyer should have been a heck of a lot more aggressive and come back to the judge as some telephone tree then consider the source because he didn't say he didn't show any interest in talking to the source he didn't suggest no i don't believe that this happened the whole predicate is that this couple's information was true right couple's information was true as to the rest of the jury the defense attorney even said i don't know why i think it was true think that he had some doubt about it why didn't he call in the source well he could have but again that's not the question here is whether he was constitutionally required to do so by any supreme court case and the answer that is clearly no if you look at some of the other circuit cases where the court has said the court did not have a duty to inquire i think that those allegations reach a much higher threshold than the one in this particular case for example in the tracy case a juror came forward and said she had heard two other jurors talking in the line in the bathroom and one said that she had bad feelings about the defendant and the other jurors said is there any question about the verdict and it's similar to this place the judge question that i'm sure but not the other two and this court held that there was no duty to inquire