no such inconsistency second respondent argues that the presumption of presidents is limited to cases involving governmental intrusion as opposed to the juries independent receiving consideration of extrinsic evidence it is our position that the presumption is not so limited that their position is inconsistent with the language in holding internal be louisiana which is the leading case in that area and that there is no principle distinction between governmental intrusion cases counts because at the time of the improper experiment in this case the jurors had already taken informal votes on the first six counts and the district court raised that fact to the level of some return a verdict the mcfadden's credibility and only on the four counts that were dismissed obviously we believe that's erroneous and we think that the district court and all of the state failed to evaluate the alleged error in this case in the context of the arguments of counsel no one until today paid attention to the fact that both defense counsel and the prosecution placed marcus mcfadden at the center of their cases and a nevertheless and i think that the court understood that perhaps but nevertheless went ahead and sent him on counts five and six so i think the judge that went directly and obviously there is prejudiced we don't need any presumption of prejudice under the court holding down below they said that the jury was intending to test the credibility of marcus mcfadden and if that's true then counts five and six were directly and irrevocably implicated  turning to the first issue prejudice and brecht our position is actually rather simple our position is that as a matter of federal law from turner louisiana there is a presumption of prejudice when the jury consider the appropriate standard then is to evaluate what occurred in the courts below as though the presumption had been properly invoked by those courts and then the term and whether respondent hasn't fact presented evidence that would have reasonably  up talking to want to more of the jurors about the case or something like that but there's also numerous cases from marino and little to fields and the other case decided not brief which involved extrinsic evidence in a pure or more independent note and which seemingly appear to have involved in folks the presumption of prejudice and they're all cited in our brief but the reason there can be no principled distinction between what they refer to as governmental intrusion cases and what we refer to as extr cases is because the holding in turn or the louisiana was not that we have a situation here where the government intruded upon the jury's deliberations instead the court said quote the requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is and grazed in the constitutional concept of trial by jury and then they said it violates the full panoply of rights from the defendants were cross examination confrontation to counsel and so the holding was that the intrusion in that case violated those rights because there was extensive evidence considered by the jury and the nature of that intrusion the fact that it was governmental is one of the things that made it material to the issues that were in the case the third point the jury returned not a single verdict before this improper experiment was conducted we all know that juries frequently take preliminary votes and we all know that as a matter of law the deliberations are not terminated until that jury returns to open court submits a verdict to the judge and the judge pulls the jury and terminated now the jurors may themselves have believed they were terminated the jurors may have said well we took votes on five one through six and we were done with those counts but the fact of the matter is they cannot know and they can't know that they're wrong as a matter of law the deliberation arguments to the jury and i exhort the court please to look at that again because once the court does you will see that both the prosecution and the defense made marcus mcfadden the center of most of their cases they both argued up and down on all the counts based on his testimony and his credibility and they both acknowledged that he was the instigator for all of the charges against my client not just counts through ten in which marcus was directly involved it is a fact that all of the complaining witnesses were friends that marcus was the instigator that brought them all to the police and that marcus himself had an opportunity as he testified to be alone with those young people before they actually were interviewed by the police here the argument is that it's possible that a jury may have changed its mind after voting to convict the defendant petitioner on the first six counts certainly it is possible is it reasonably possible probably not is that substantial likely no the fact of the matter is that the jury voted to find the defendant stationer guilty on the first six counts before it in gauged dismissed and the state court found no prejudice as to counts one through six the district court also found no prejudice through counts one through six our position is there was no prejudice with respect to possible that yuri has not done that demonstration and and the jurors who risk ethnical about the physical possibility of the act that have been described decided that well we just can't believe that isn't there at least some possibility those jurors would've gone back and said now that we think about it now we've said we voted to convict on counts five and six but we don't think marcus was telling the truth so maybe those convictions were not going to hold when it comes time to fill out the final form either and i think that's the theory being offered up by the petitioner well what he had to say about that well first of all i think the jury found him guilty of counts five and six which are and certainly jurors are allowed to have second thoughts and so if if the jurors who were skeptical about the physical possibility of what was testified to did not see the demonstration and as a result even if they don't satisfy their concerns speaking of the potential holdout jurors they don't satisfy their concerns about the physical possibility of what's covered in count seven three ten the demonstration then is it realistic to say they might have experiment with respect to count seven through ten because i had a question it's not about his credibility with respect to those counts it's both if that experiment had not been undertaken why under any analysis would there have been a change in the opinion in the  count one through six it's possible six that it's pretty easy to say sure if they come to conclude that mark is incredible there's a really easy possibility of second thoughts about five and six i'm not saying that that's the case here but i don't know that it can be dismissed it's not it's not conceivable i think it's conceivable it may not be a realistic possibility everything it's conceivable and that's why you know we have the brick standard because if it requires more than conceivability requires more than reasonable possibility  basis for really again the first six counts were found to be independent was found to be guilty after the first six counts got to be built up because there was a vote taken now what is it that would have clifton i believe the you are hitting the nail on the head from the defense perspective i'd like to say briefly i misspoke when i gave the court pages in our grief that refer to the closing arguments of counsel they were reformulated for the papers i had and act the jury that is of no legal significance as to whether there was a verdict in this case an experiment was conducted that directly impacted the credibility of potential witness in the case for counts five through ten the parse out the effect of that credibility and say well it only expected some accounts and not others we submit that's just an accurate and not proper evaluation of