petition for hay vs corpus in the district court with the time allotted today we'd like to argue two issues the first issue which is the exclusion of juror six thirty eight on the grounds that that year was qualified and was not substantially impaired and second the claim to which was the admission of inflammatory prejudicial information about the second victim nairobi warfield being pregnant at the time of the crime  excluded a juror six thirty eight violated mr wheeler's six eighth and fourteenth amendment rights because this juror was manifestly qualified and his questions during void year indicated that his views about the death penalty which he acknowledged that there were arguments on both sides neither prevented him nor substantially impaired his ability to consider the death penalty in this case jury selection in this case was on an individual sequestered basis or juror six thirty eight was questioned individually apart from the other jurors and the trial court in this case proceeded along the following lines she would provide each individual juror with a brief overview of the capital trial process specifically focusing on the fact that it was a potential death penalty case and outlining the sort of basic legal principles that the jurors would have to apply she then went in with each juror and juror six thirty eight was no exception and asked him some preliminary qualifying questions related to the death penalty and attitudes about race in this case the victims and the defendant were both african american during his responses or during the entire void your juror six thirty eight evinced a a thoughtfulness that was consistent throughout his answers he was a conscientious person and demonstrated repeatedly in the way he answered his questions that he would take the job of being a juror very seriously initially the judge asked him if he could consider the full range of punishment and this question was asked in two different ways by the court and juror six thirty eight unequivocally answered yes you could consider both of them in the second question the judge specifically referenced the death penalty and he said he could consider the death penalty she asked him other questions related to his views about the death penalty and he stated that he had formed no opinion about the death penalty but recognized that there were arguments on both sides of the issue he was asked about his moral religious personal and spiritual beliefs and whether that would interfere with his ability to consider the death penalty and again unequivocally he said no and said that there was nothing that would stop him from considering the death penalty he was asked about his church's views on the death penalty which he candidly said he wasn't aware of his church had a position but that it has been in point of a topic of conversation the judge then proceeded to ask him questions about potential racial bias and i bring this out because i think it illustrates very very capably just how thoughtful this juror was the judge asked him if he had any negative opinions about people of a different race and he says he tries very hard not to i think this is important because it shows that this juror is a discerning person and is evaluating each question as it stands and doing sort of an introspective review of his own attitudes  the judge asked if he has particularly prejudiced against people of other races and he said i try to be aware of them and that these things i'm mindful of and i try i don't overcome he that there was a potential that he probably had some racial bias but at the end of this area of questioning he said he would make sure that whatever racial prejudice the had it would not affect his deliberations or is jury service what we have here is a man seeing during the questioning with the judge that he is taking each question one at a time examining his conscious and answering in the best way possible the most accurate when we agree that the sure was wrongfully excuse for cause do you automatically when or do you have to show something else i don't think that i think we believe that this court reviews this issue  because the state court did not review the federal claim and because of that and this is an issue of law whether whether this this court applied as it isn't presume that the state court review the federal claims when the federal claims that raised the stick or absolutely the judge griffin in so that you have conclusive evidence that you did not review the federal plea i'm not sure that conclusive evidence is the standard ones or what's the best evidence you've got that they didn't review it i mean when the presumption is when federal claims are raised in state court that the state court considers what evidence do you have that they did not to rebut the presumption i think there's compelling evidence to rebut the that they have looked at the federal claims that's correct and i think that richter and johnson although justice scalia sort of criticize the majority in johnson versus williams he clearly recognize what the majority is doing is creating  legal arguments that overcome the presumption the majority recognizes in and i think that richter says this too that this is a rare thing but there are facts that are evident in the kentucky supreme court's decision and in the way they have treated this issue in the past that i believe overcomes the presumption so the first thing is and this is again comes from the from johnson versus williams is that they did not cite which or any controlling federal precedent second they did not cite the correct legal standard or the controlling federal standard in evaluating these kind of cause excuse holes they did not rely on state court precedent that construed with or some other appropriate standard but instead relied on versus commonwealth montgomery versus commonwealth and thompson versus commonwealth all of which are state court decisions applying a different state standard than than with and that's important that's one of the things that came up  johnson versus williams is whether or not the state is relying upon a state standard that's different than the federal standard here dress your six thirty eight excuse me did the supreme court of kentucky specifically address juror six thirty eight no there's only a single sentence in the kentucky supreme court decision that seems to apply and what it said the trial court appropriately excused or removed for cause those jurors that could not consider the death penalty arguably it was reframing the issue that the trial court had said but the gist of this was it's incorrect juror six thirty eight never said that in fact he said quite the opposite many jurors were excluded like six thirty eight were there others as well who were excluded yes there were many you know i think there were eight jurors who were excluded solely on this basis there are a number of jurors who expressed reservations about the death penalty but had other impediments as well juror six thirty eight however is different from those jurors because he never can cite you a lot of things he said if you want i don't want to argue with the court but my take is that this is a juror who is in the videotape is before the court you can if you haven't reviewed that i'm i'm sure you'll see that that he was very consistent that he was he was taking this job seriously and he was answering the questions in the most accurate way he could now only what do you forget about the standard or not let's assume it's to know what do you have to go to get really clear and convincing evidence that the standard was applied incorrectly or the facts were wrong and she's clearly got the facts wrong you don't have to show that the jury was actually know under under adams and davis the excuse all of what a single qualified juror improperly is grounds for a new penalty phase and that's what this claim we're not asking for the for the court to reverse the conviction here we understand that the governing law only allows for sentencing phase relief and on this claim a single excuse all of a qualified your is reversible error i'm  if i didn't understand your question earlier i have post and book cases that hold differently that you have to establish that the ultimate jury that you got after the excused jury was excuse was hundred eight i think i think that the standards differed also we have that with case no i don't i don't see you citing any cases recent cases for that for that proposition that  you don't look at the alleged bias of the ultimate juror that was my understanding is that ed put did not change adams for what's what's the most recent case you've got for that proposition because there are cases that the most recent one i've seen go the other way  i don't believe that the warden has cited those cases we do not have a chance to distinguish them and i'm on the where about law my understanding is even at the context if you get to that point if the court determines that this  excluded and that exclusion is either reviewed what's what's the best most recent case should go adams and davis what's in gray vs mississippi while gray versus mississippi is an old case that's pretty apt i know that but the other the i know you have any case any authority that says that no so you're saying that all the cases they deal with here are by us and that it definitely is that deal with fury that say that you need to find actual bias our cases theory with guilt and not penalty then the cases that i think your honor is referring to are instances where jurors are found to be tainted or biased for some other reason either imply brought bias or expressed bias and i think that those cases there is a higher standard but i think for excusal under wit if if the court determines that it was an improper excuse or the cause cause was granted improperly that is the basis for a new sentencing hearing i'm not familiar with this case law and i don't think it exists there is some case law from the sixth circuit excusable cases you have to show that the resulting jury was biased and there there there is however authority from the supreme court in a number of cases that says that those who firmly this is a language from  those who firmly believe that the death penalty is unjust they nevertheless serve as jurors in capital cases along as they state clearly if they're willing to temporarily set aside their own beliefs in deference to the rule of law now affectively that says that age i guess that a jury made up of people who have the people who have been excused let me put it that way because they said they had doubts about or they were negative about the death penalty or as they say here they think the difficulties than just create a jury when they cannot serve after they have said that they can set that aside and consider the death penalty necessarily i guess that a jury that has been improperly  put together because all the people who are have problems with the death penalty have been excused improperly is going to be a jury that is more inclined to go along with the death only than one that  would be have those people on there so maybe that's the kind of boss that the we are talking about well that it is a type of bias i think lockhart versus mccree was a broader challenge than th we've made with respect to juror six thirty eight lark lockhart i believe challenge the institution of death qualification and said that it results in a jury that's that is biased as a sip systematic systematic as explosion which is different than we have here that's correct all right one of the cases that i was thinking of as you might want to write this down wilson versus a mitchell it's for eighty nine f for ninety one at five fourteen six circuit decision two thousand and seven and i quote without a showing that his jury was biased merely arguing that the trial court erred in dismissing a perspective dror types of bias i don't believe that that is used you think wit makes this the standard more defendant friendly than i was before  i believe that with affirmed adams and davis and certainly gray expressly adopted them and said it's conclusive that the exclusion of a single juror i am unfamiliar with post ed to cases dealing with the excusal of back into the argument and you know you argue that we did not give the kentucky supreme court any difference because in your view they didn't rule on the federal issue or  the but assuming they did rule it can you tell be why the kentucky supreme court's decision was an unreasonable application of clearly established federal law as established by the holdings of the supr it's unclear to me which is the dispositive issue and i would like to address them both know we reviewed the final state court decision do we not i mean there's no question about that is there well there might be a question of whether that's a summary a firm and if it's a summary  prepared to argue about why the trial court's conclusion was unreasonable but there is compelling arguments why the state supreme court's argument is unreasonable the first is is that it it inciting what the trial court did it completely misconstrues what was said and what the court found the trial court in this case after reviewing the videotape came out and completely miscast honestly i think but miscast the question that was asked and the answer that was given instead of this complicated theoretical question which was preceded and i think this is important when the prosecutor asked the jury the question immediately preceding the issue that the judge thought was  ocal he said i'm asking you to commit and tell us what penalty you are going to give here the juror said i understand and then he said oh i think it's just whether and and if i understand correct maybe you're you're telling me that at this point you're not absolutely certain which is not they with standard whether you could realistically consider it or not because in the juror answers that's the most accurate way it's not clear to me from from the jury even understands he's being asked to consider it at this point he's already said twice i can consider it but if there's a problem with the form of the question then there has to be an objection as to the four question this is a judge  this is the prosecutor and based on that q and a the judge and she made it he was characterize the answer she didn't have or not not not at that point i think she accurately characterized the record because when the cause challenge she said i determined this guy was qualified he said he could consider both i don't even think that there is a problem and then the prosecutor eliminating the absolute certainty says no he said he couldn't consider the death penalty in the judge says i didn't hear that he says it's there ok and it's not there this is this was a theoretical question that asked this juror to eliminate any and all possibility couldn't vote for the death penalty i submit but certainly to the consideration in being a thoughtful person i think this juror was in i think this is depicted on the videotape he is understanding this very abstract question but he comes back and reaffirms consistently that he can consider both the application of the law is unreasonable in this case because this juror was not his views about the death penalty did not prevent him from considering that as a punishment he said that he could and there's no evidence that he was substantially impaired the judge just misunderstood  miscast his question and i'm convinced if he had understood it correctly she would have found him qualified she just made a mistake and with it we're not allowed even if the judge gets it wrong  for the counsel that seems to me that the hurdle to get over here is not so much what you're talking about as it is this problem  showing that the jury is biased after all this has been done and i am confused about that i'll tell you myself in reading these cases because and say several of them grey versus mississippi the court said it was granting search your area to consider whether the improper excusal of a jury of a juror or for a cause can be harmless and then the court says it can't be on this it's got to be archived in gravy mississippi so i don't see what i don't understand the bias language in some of the six circuit opinions how it can how that can be what that means i don't know what they're talking about exactly and i don't see i can be consistent prosecution to eliminate jurors but actually a limitation on that right in the recognition and this comes from witherspoon then later in morgan when it was about excluding jurors who whose attitudes about the death penalty prevented them from considering life without parole but what the court said was that when you allow the exclusion of jurors who have scruples against the death penalty but could still consider it and discharge their duties the panel that resulted results from that is a biased panel because a large segment of the power magically automatically that that's right i will take a look at wilson versus mitchell but it's my understanding that that central core of wit and its in its the prior case of  little bit of time in this case the issue of pregnancy came up in a pretrial motion once it was determined that the victim was pregnant and there's no evidence in the record i see my time is is that  we'll have your rebuttal thank you we don't allow you more time i'm always nervous about that which is that judges i'll just tell you that my concern here i mean i'm concerned what the federal issue is i think as a as i say as a trial judge i i probably would have excluded any reference to the victim's pregnancy because i agree with you it really isn't relevant to any issue in the case and doesn't really the fact that it's a condition of her well she may be colorblind too she may be five foot water i mean there's a lot of conditions of people that don't have any relevancy and don't really come in and it does have the potential for prejudice but it appears to be a state evidentiary issue to me and it only rises to a federal constitutional issue if if your client was denied of his right federal right of a fair trial and here there there was only passing references to the victim's pregnancy the the evidence came in through the medical examiner's brief testimony or he's describing the victim and includes the fact that he discovered the fetus and then the only other reference is in the prosecutor's closing argument where he talks about the victim is basically a regular person and she lived a regular life and did this and did this and and she was pregnant and and it was in the contents of she's a regular normal person and you know that and it's hard for me even if there's air to see how this arises to the level of a denial of the federal constitutional right to a fair trial when the only references it in to the trial of it are very brief and you know very minimal i think so i mean how do you respond to that the first response which goes to the standard where you started your honor is that through a series of cases the u s supreme court starting in chambers i think has recognized that there are certain evidentiary or procedural issues which even if permitted under state court can still run afoul of the federal constitution and i think the standard you know it's cast in a few different ways and in chambers in green and more recently in dawson versus delaware is whether the admission of a particular evidence or type of evidence or the exclusion of that evidence violates basic notions of fundamental fairness and here the violation is twofold first the violation occurs because it has absolutely no relevance to any issue at trial in dos and there was a fairly pitched dispute about whether or not that defendants membership in the area in brotherhood was relevant in some way to issues that sentencing and because of the nature of the evidence came in the majority said no it's not relevant and the jury learning that he's affiliated very very again doesn't vs dollar is a good case for us because it's very limited information about his membership in the area and brotherhood but because the supreme court said there were no issues about this the victim in that case was another white person so it wasn't about racial hostility and the prosecution did not connect that to any other material issue the mere fact that this guy was a member of the organization that people don't like was sufficient to reverse his his death sentence in that case and they did reverse that and i think we have a similarly limited amount of information came in at the guilt phase through the pathologist and then it was reintroduced at the penalty phase and then at a sort of emotional peak in his summation he mentioned that she was pregnant we think the error goes to both or you're arguing only that it goes to the guilt phase which gives me that it goes t introduced it was introduced in both i'm prepared to write about that you get a new trial on both places i've i would like a trial on both phases but i can see where the court could find that the prejudice at the guilt phase was not sufficient to reverse conviction but sufficient because the prosecutor did not reference in his guilt phase summation i will i will credit that and you think that the jury may have given the death penalty because of this fact there were a series of notes sent out by the jury and at least one of those it seemed like they were distinguishing between the two victims asking about what would happen if we gave death for one but imposed life for the other and  one inference from that that i think the court could draw is that there was something that distinguished these two victims and she was pregnant so that is a distinction as a defense lawyer i see is a problem but we believe that the mention of pregnancy because of the unique nature of an unborn fetus and the vulnerability of the mother is inherently prejudicial in white versus they'll or it's the only circuit court decision that i can find on this they reversed on a very very similar issue it's book case but it came under the rubric of ineffective assistance of counsel in that case the prosecution introduced evidence almost identical about a small embryo there was no evidence in white versus they'll or that the victim was aware she was pregnant or the defendant knew she was pregnant and they reversed a murder conviction because of the very limited evidence about that now in that case defense counsel on light here did not move pretrial to exclude it and did not object when it came in but attempted to sort of you know put this off on the victim a little bit and that exacerbated the harm but the prejudice there under an ineffective assistance of counsel quick case i think is it at least equal if not higher than the prejudice we have to  unfair print additional evidence came in the prosecutor room with it just i don't think that that's accurate he said slightly more than the prosecutor said here but the real harm i think was the defense counsel attempting to take that evidence and less it but actually amplified it here so did the jury have to verdict form yes then did they they alternately impose death for both do you want to say anything about the the argument relative to the jury instruction on this issue or the other issues the other issues if you could  on the mills the bills instructions yes mills versus maryland stands for the proposition that anything that systematically precludes the jury from considering mitigation including no unanimity instructions violates a defendant's eighth amendment rights to a reliable sentencing because it precludes jurors from considering mitigation in mills the jury was instructed specifically you have to be unanimous in order  to consider mitigation in the u s supreme court even even without a showing of prejudice reversed here this jury was instructed at least thirty eight times that we can count about their their responsibility as it pertains to guilt and then at the penalty phase collectively as you they were never told those not in structure instruction it was given to them that jurors make an individual determination about mitigation that their their  decision is not contingent upon the eleven jurors agreeing we think that that runs directly contrary to mills versus maryland because unless the jurors understand that they can consider mitigation even if any other people don't agree and give it weight in the life death the terminations under the kentucky procedure that violates mills on here the judge emphasized repeatedly that you have to do this you have to do this you have to reach a verdict and we've identified about one thousand of those i think in our brief but never told the jury that you're weighing or did determining mitigation was an individual choice that they have and the truth is under under mills a single juror who finds a particular mitigating circumstance they can give that mitigate or the weight of life in this juror was jury was never told that and for those reasons we believe that violates mills worsens maryland thank you mr flood any further review because the landscape is his ship the dramatically this year with the supreme court's decision and would all i was on would all get reversed so yes you know what your honor i apologize for bringing up a sore subject that's all right with with the mills issue with the wainwright issue is this so long is fair minds can disagree as to the state courts application of supreme court precedent they have to be a it's just that simple they can only be reversed if their application of their person is so objective liana reasonable that is beyond the possibility of fair minded disagreement so that if this court disagrees with their application that's still not a basis for reversal of it had to be that nobody could agree with their application but if they violate a rule excuse me or a  a court held something opposite of what those cases said woodall dealt with unreasonable application rather than contrary to that is that there is a rule from the supreme court in several cases and certainly one is lockhart which says clearly those who firmly believe that the death penalty is unjust my nevertheless serve as jurors in capital cases so long as they state clearly if they're willing to temporarily set aside their own beliefs in deference to the rule of law and i hear this juror clearly stated that he could consider all of the options in addition to that we've got gravy mississippi this block our case was in eighty six this but this one was a couple years later and they say in in gravy mississippi that they are considering in that case whether the improper excusal of a jury juror for cause can be harmless and they hold that cannot be harmless so we've got a pretty clear rule that coming out of the supreme court about this question yes your honor i agree with you on that but the depressive how can we have a legitimate difference of opinion when when the rule is clear or and the court the kentucky court does not really get into the question we're going or the there's a condition precedent in that opinion first that there's a finding of bias if there's not y try to clarify a point of well well assuming just for the sake of argument that the state court excluded  ager that was clearly qualified and that the jurors should not have been excused for cause and that the conclusion that the trial court properly excluded the jury was contrary to the supreme court law ok now what is the is that end up under adams and the other cases cited by the defendant or i mean the petitioner here or do you maintain that even under these circumstances there has to be a showing that the resulting jury was actually violence but the reasons stated during the questions were asked to my  will concede that there is an issue whether after applying at the deference one could conclude that the state court unreasonably applied the law but let's say we conclude that  who was improperly excused the state courts to terminations to the contrary is unreasonable so the question is why would ed change the law on whether you have to show that the resulting jury is biased or not i don't understand that i'm not too sure i do either to be honest with your honor so do you have a case that said that  assuming that they established this right i mean what the constitution guarantees is a right to a trial by an impartial jury and the defendant's not alleging that history was impartial here he's not alleging that yesterday he is i don't know i mean to look like he just got through answering the question i ask you he says if you follow the supreme court preston what they're saying it's automatically by the jury is not going to be as pro defendant as it is appropriate as accuser and automatically when you exclude all these  say well i have got problems unsettled about the wisdom of the death penalty but yes i can consider the death  automatically going to have a jury that is more for oh oh government pro state if you get rid of all these people because what you're going to have left is all the people who say yes i'm very much for the death penalty or yes i'm for the government that's so automatically don't you have a situation where you have a a jury that is different and and more biased in favor of the state and we're on our i disagree with the characterization what you have left is a jury that will consider all legal sentencing options and that's what the constitution requires and your six thirty eight here was clear  answer session which obtains results the manner the catechism we've got everybody in this court has tried has tried cases we we've seen went through the jury selection process where some money you just you can't pin them down they won't say yes some for or no i'm against that and that's what the judge is for and it's following rice's we have to leave that to the discretion of the trial judge that it's a finding of fact it's entitle to the presumption of correctness with all due respect to the court what could possibly happen if you  it is is you get a new trial it does have to show bias that's really not the issue here the only issue before the court is what is juror six thirty eight improperly excused that he wasn't oh you're you're saying on the discretion that then i mean directly honestly and who has reservations about the definitely i'm not sure but who also says yes i can consider the range of penalt also asked a question i wrote down exactly what he said or he was asked directly by the prosecution after the support the case and started he was asked by the prosecution whether he he was absolutely certain that he could realistically consider the death penalty or not and his statement was i think that would be the most accurate way i can answer your question sir that's not the standard are you absolutely certain that you can realistically consider it but that's not it doesn't require absolute certainty your car got a bit wet again that's a fine you have to get rid of a juror or just because they're not absolutely certain that in this case they can consider the death penalty and they say you know i don't know i mean i and  an exercise of discretion is permitted by the constitution under way right what your honor that's that's what we submit ok well that's your are you well talk about discretion i mean the trial judge findings presumptively correct and the person challenging those findings of fact has to present evidence which is clear and convincing to the contrary that's the standard right yes your honor so it's not whether whether the trial judge abused discretion that's even higher standards higher standard that whether it's clear and convincing that the the judge abused her discretion in making the funny thing is wrong and which is i stand right judge in this case which was now kentucky supreme court justice lisa beth abramson and judge abramson thought about this overnight she made an initial finding we're going to i'm on but i'm going to think about this so she went home that night and easily as the trial judge could or the kentucky supreme court could and therefore the videotape eliminates any deference that we should give to the state court judgment when i do your sponsor that i would love to see the authority for that there isn't any is there on your honor and an answer to also questions you raised does have some reason behind it though doesn't it just no authority for if you're looking at the same valuing you would although what also is that and what judge will decide it's based on what the kentucky supreme court did with this case not what the trial judge did with the case that they that they are reasonably apply when right in a sense that's that's that's the issue unreasonably implied tells me that i mean judge white and i and the michigan court of appeals used to cite state court cases all the time that were based on federal law didn't mean we didn't know what the federal law was because we cited the state court precedent there are any are you saying that's what kentucky supreme court is doing here is your honor i'll quote from their opinion the relevant the relevant sentence there was no error in the rights of the defendant to a fair trial an impartial jury due process and freedom from cruel and unusual punishment under both the federal and state constitution were not violated that was their the last and their holding on this jury selection issue either they specifically cite one right or witherspoon no they did not but they were certainly are aware of the federal issues involved me ask you do you think that the juror here six thirty eight stated that he could set aside whatever doubts he had which he express juror and do you think he was lying or something or again he quick a did you say that it's cherry picking that's just picking parts and phrases of what he said to say well he wasn't biased or didn't they was can you so is and consider all the options and he said yes or not is also case all saying that a person can be a real rehabilitated by magic question also and that's what that was his you have doubts i'm un settled as to whether i agree with the death penalty or i don't i don't know in this case i've tried to look philosophical problem i'm the faller a lot of joran and we've discussed it i don't know what i think about that that's what he said you know that's nothing a quizzical about that your honor the things of the state's entitled to a jury that will consider the full sentencing range if there's any doubt the person should go and there was there was a lot attendant is entitle to have people on the jury that take take the death penalty seriously that will mean just because somebody hurt will be thinking very very carefully before imposing it doesn't mean they don't belong on the pier and you know that you know not to beat a dead questioning and question early the there were two references to pregnancy that were very brief dr burroughs the medical examiner was giving that was reading the jury the results of the autopsy noted that miss warfield was pregnant prosecutor said and what about nairobi they didn't find her and there's actually some doubt nigel what about nairobi they didn't find drugs in her system nobody ever said she was a drug be or what about her what about her life autopsy told you inaudible she didn't have any alcohol in her there's no drugs she was pregnant i mean she's a normal person she just loved the guy nigel you loved her they lived together in westin and they died because of that and we're supposed to believe that's ok it wasn't like the prosecutor jumping up and down yelling she's pregnant she's pregnant killing for about any sort of of undue real passion on the part of the jury or she was part of he killed a pregnant woman would have been any different had it happened ten months later babies month owed the jury certainly would be able to hear that she was a mother of a newborn humanizing evidence what's what's the real difference here but most importantly what the difference is to some people it would be is if she killed the new orphan i understand i understand your point your honor but i don't think that's just a magic thing was my own go because the baby was two months gestational as opposed to two months post birth of their opinions going to be that much different of him you know but again  the most important thing is particularly you know underwood all there's no precedent from the united states supreme court saying that that admission of testimony or argument that the victim was pregnant least due process there's nothing there there's no precedent saying that now the only way that that we are getting the relief on this is if the court either way the court goes service or our is granted and the supreme court well this is a new rule that applies in this case and applies respectively that's not the issue the issue is that the kentucky supreme court you know rule contrary to or an unreliable haitian of controlling u s supreme court pre elicit some someday but it's not improper is who she was and they were entitled to hear that and what's the difference between this case and i think it was the fifth circuit case that found found  on honestly i haven't i haven't read the case so i can answer that question but again but again it's not part of the of the standard reviews would all his his cost and the only question is for this court is was there is there controlling the u s supreme court press and not how the fifth mills versus maryland mccoy versus north carolina were very simple in what they said and what they said was a jury cannot be told that their decision regarding mitigating the finding of mitigating circumstances must be   now what we were is asking the court to do is to expand the rationale of that and again back to would all would also is the court cannot expand the rationale of these cases that is either contrary to their leader controlling supreme court precedent or there's not mills mccoy are not controlling that didn't happen here this jury was not told you have to find mitigation beyond a reasonable doubt they were given instructions on mitigation they did not but i said the judge kenny kennedy wrote a majority opinion the court was in on bond position actually judge merit wrote what was titled majority opinion of the court but there were a lot of different issues and on the mills issue actually judge moore was in the minority and it was nine case but anyway it involves really the same situation where a juror is excluded because in the view of the stake  r the state court judge ruled that the jur could invoke the death penalty i might be able to anyway go if you're not a familiar with the case which i'm kind of surprised you're not well i don't think it was cited by the warden in their response so i don't think ok you know it's easily found i will to i will take a look at the case and we if we could submit supplemental no i don't i  don't need it i just if you could respond today fine but but what adams versus texas says and i quote here the state may not constitutionally execute a death sentence imposed by a jury called of all those who reveal during void their examination they had conscientious scruples against the death penalty the defendant on the other hand was seriously prejudiced by that practice what they're saying is when you exclude a single juror in adam's that that is the harm and later separately i think that says all jurors oh no it says the jury is cold of all jurors who have reservations so all jurors who who are who are removed and juror six thirty eight even in the case best to the state i don't think he did have serious reservations i think this juror was sort of straight down the middle he was just a thoughtful serious person but to the extent he had any reservations when you remove that juror you've cases i think it's different than lockhart but it touches on the same issue in the issue is a juror that where all the people with conscientious scruples including juror six thirty eight arguably is removed from the jury is not a fair jury for someone facing the death penalty and that that is uniquely if if there were two or three other ones in this jury pool that you could cite we could say well the judge is doing this to everybody but you don't you have the one person well i think that's why the reversals are always a single juror and why it's not harmless error because how would you prove prejudiced in the truth is if you adopt that analysis this kind of claim could never get federal relief it or if it arose in state court because does it become systematic when the judge ruled remove two or three or six fifteen at what point and the supreme court has said we're not going to go into that the removal of a single juror causes a unique harm to the defendant facing the death penalty and that's why there's no harmless an error analysis during during the warden's response to some of the questions the issue about trial court discretion came up and i don't see that upon a finding that some someone is substantially impaired or not substantially impaired that a trial judge has any discretion and that's different than the state standard once a judge determines that a juror is substantially impaired they're required by law to remove that you're likewise if the judge determines that they are not substantially impaired with prevents them from excluding the the law and kentucky however is different than the law in kentucky under under maybe i'll cut to the chase on this because i have made right here it doesn't cite wit it doesn't cite any federal precedent it cites only state court cases that construe the kentucky standard in here is the kentucky standard judges are afforded broad discretion in granting or denying excuse there's no such discretion likewise the standard is not substantially impaired or prevent if that the person has a mental abas to attitude such that they stand impartial that's that's the can the kentucky standard and that's the standard they cite they don't really rely upon any federal precedent or any state court precedent construing quoting a referencing the federal standard and the kentucky supreme court has has relied on the federal standard in other cases decided the same here but the two cases that they will lie on here maybe and montgomery do not they rely upon a uniquely state standard the important that  conclusion is that it didn't violate the state or federal constitution i think i think we would have a much harder argument to make for de novo review if they said what your honor said but they didn't come t just read it but that's not what the kentucky supreme court said oh maybe i misheard you in this case they don't cite the federal standard or reference the proper standard then they say we by no violation of certain amendments under the state or federal constitution not in the discussion of this terror there was a separate separate claim that we have not raised in this appeal that he's referring to but it's not it's not on this issue and i think the deference is  really important because they have the catch all i mean i think what he read is accurate they have a catchall conclusion we find that there is no federal due process rights i mean they do have that statement in there  true it's still an unreasonable application of clearly established federal precedent ok because this this judge sympatico used it's a ruling on the federal question whether the ok all right could i have one moment to address the review them because it's a state system and a state system of system we have different interests going on here i mean it's not because we're appellate judges that kentucky state judges the state judges because we come from different systems well i think the case and it doesn't rise and fall based upon how concrete the evidence is whether it's videotaped or whether it's transcript or not it's because it comes from the state and the federal people reviewing the state system have more more difference than maybe they have to go for the reason we stated we believe this was an unreasonable determination of facts because you simply got it wrong at a reasonable application unreasonable application of the established federal laws established by the