jada smith please the court there are a number of issues in this case and this morning i'd like to focus on just a few and the time that we have in the first is the bason claim our claim here is the court knows focuses on the prosecution's peremptory strikes court also knows the standard gas analysis has three steps but every court who have looked at our claim so far has resolved it on the third step and that's where we think it ought to be resolved after that third step the question is whether the particular race neutral reasons offered by the prosecution for the printer strikes in question should be believed or whether considering the totality of the available evidence those reasons are better viewed as pretext for purposeful race discrimination i'd like to make three points first about the general shape of that analysis at the step the first is that although a state courts determination that certain strikes were not based on purposeful discrimination is ordinarily entitled to a presumption of correctness on federal habeas review that presumption is not warranted here in the court's review should be the court made a finding which is not in my systematic language what the california supreme court failed to do was to say that the law requires that each entitled well the fact that something goofy with that finding made a find me the only finding i think the california supreme court can be popular made if we focus in particular on the strike  different rationale than was actually offered or are you just saying well i'm not what are you saying i think if we're going for speaking about i think two things the california supreme court accepted her and or deduced that the trial court must have accepted the reasons offered by the prosecutor i think it's telling that the prosecutor when she had a problem with the jurors answers to the death qualifying questions the prosecutor singled out as a reason why mr morris and i i just like i repeated to get your you your response to the point why her views on the death penalty that's beside the point is that she couldn't articulate views one way or the other and that is why it manifested a lack of maturity and ability to deal with a serious case i so i understand the question not and i think my answer is that the if the prosecutor had thought that that was the source of his concern and if that had villainy to deal with difficult issues well for example maybe i can point to one other that that when the prosecutor justified his strike of juror chambers he didn't say look he expressed a hostility to the death penalty  my point is the death penalty ask isn't what mattered what mattered was think she did not manifest the ability think clearly about anything well i think  even assuming that one not to read the answers that she gave to the death qualifying questions as manifesting this sort of general lack of certainty that then produced a kind of concern about lack of experience and responsibility i think the point prosecutor even assuming again that the answer can be to the death while one question can be taken as evidence towards the reasons given by the prosecutor he said that sort of was very young and he thought single and that she didn't have the type of life experiences for responsibility to take on a case like th i'm so we have to evaluate those precise reasons not any other reasons against the totality of the record and i think the totality of the record includes a number of things first the court should take me out of the general numbers that is that the numerical pattern in the strikes that the prosecutor engaged in here in this case eight out of the prosecutor's first twelve strikes were executed exercised against racial minorities for against blacks for or against hispanics leaving only one hispanic a person on the jury at that point that kind of pattern far less than that kind of pattern has been recognized in earlier cases of this court to at least generate an inference of and permissible discrimination and so that's typically the first step it can be considered again at the last in addition to that the prosecutor himself spoke in terms of race when describing his approach to jury selection racked with explanation he went beyond that your honor he said actually that he prefers on a case like this to have minority jurors and i think the legal question is if the prosecutor acted on that preference and it was peremptory strikes reflected that preference there would be constitutional infirmity and one of the and want to more of the strikes i think it's particularly telling here to put that statement together with what the trial court and the prosecutor here described as the governing legal standard neither the trial court nor the prosecutor so that the governing legal standard was whether any one of the prime first rights had been exercised on the basis of race instead the trial court here said that at the question is one of the prosecutor had engaged in the systematic exclusion of blacks or hispanics from the jury that's what the proper court said and then the prosecutor himself said the question is whether i go systematically when i exclude blacks that mattered since counsel yes right that's that's correct your honor i think this is a question of law the court this was a we're hearing but this court has held that raising a will or objection effectively raises about an objection the governing legal standard is one where even the single juror being excused violates the constitution so who put together the description of the standard agreed upon by  court and the prosecutor that is the constitution is not violated if one or even some minority jurors are excluded on account of their race as long as the prosecutor just not systematically exclude those minorities if we put that together with the product prosecutor statement that he prefers and a case like that to have minorities on the jury i think we get a picture of the prosecutor as thinking in terms of race as he assembled his jury as thinking i would like some minorities i'm going to think in terms of race when i decide whether to strike particular jurors or to see them if that's what the prosecutor was doing he violated the constitution that i think is the background against which we evaluate the particular strikes against monta hano and stared at as to those i think also useful is to do what the court has described as a comparative analysis that is to look at similarly situated white jurors not struck by the prosecution and in this case i think the comparison between sarah and white juror karlberg who ended up serving on the jury is particularly telling i can recall again the prosecutor said that i've he thought that sarah that was too young and he thought single and lacking in the kind of life experience and responsibility necessary to serve on a jury of this thinking about those criteria let's compare sarah and karl sarah that was twenty seven years old three years younger than her twenty four both were married and both were employed by the telephone company one as a so called prosper representative representative started describe her job being in one's mid twenties married and employed by the telephone company were really manifestation of a lack of experience or responsibility then presumably the prosecutor would have struck can produce evidence that the strike was in fact exercised on the basis of right so i think if you put together the pattern of the strife the prosecutor's own statement that he understands he's only being held to a standard of systematic exclusion of minorities and then his own admission that he thinks in terms of race when he approaches the jury selection process and then the comparative analysis that shows that a similar at least one similarly situated juror was seated by the crown prosecution rather than being struck that i think is an overwhelming case but in fact what the prosecutor did when striking ceradyne for that matter monahan no was to act on the basis of purposeful rest discrimination into a violated that if i could move them briefly to our germans contact cla and this client unrebutted record evidence in the form of a declaration by jurist aaron or del indicates that during mr sims trial a member of his jury named marlene morrow made contact with someone who had earlier served on the jury of mr would like it to be rad i think the point here is the declaration was entirely unnecessary to get an evidentiary hearing all we needed to make were good faith allegations that if true would entitle us to relief and that we did in the heaviest petition itself on pages eighteen and  there would then a declaration from one o you know there you are well i actually think that's powerful evidence for us to the extent it's cognizable i respect your honor the reason i think it cuts in our favor is that it would be precisely the point of an evidentiary hearing to use the subpoena power of the court testimony and to find out whether the allegations were making in good faith year which we think are at least supported to some degree by the north or ation are true or not if the standard again is allegations not evidence but allegations that i true would entitle last relief it seems to us that we've gone far beyond that standard we have alleged things that if true would entitle us to relief and we have to the extent we're able so far without the benefit of the court subpoena power presented some evidence in support of those allegations so we think on the basis of that at the very least an evidentiary hearing would be warranted here of course we're not just talking about the possibility of extraneous evidence we're talking about also the potentially biasing influence of this book plan itself not only on juror morrow but on other jurors who might have shaded the way that they participated in deliberations fearing then that their deliberations would expose would be exposed to public scrutiny if the book ended up being read so extraneous evidence and the biasing influence of the plant on both morrow and the declaration it's paragraphs two and three of the declaration we cited that court at pages forty seven forty eight of our opening breath again though i have i guess i want to stress just one more time that even if we hadn't presented the declaration that all of the legal standard is one of the allegations contained in our habeas petition would it if proved to be true in title last relief it seems to us again that we've more than done that in this case if i could then move to our miranda claim knows there were many statements taken from mr sam's across two days of interrogation on december twenty fifth and twenty sixth i'd like to focus on just a few points first by looking at the very first statement that is the statement i had to kill that boy  made on december the twenty fifth this statement came in response to officer perkins as long soliloquy about the crime scene inclined and that's a little queen was interned at the california supreme court so all of the statements were improperly you know the california supreme court assumed that the statements on the twenty fifth on the twenty fifth the california court did not assume it found that it is to the twenty statement on the twenty that's right drew the line as soon as the subject changed from what's going to happen on extradition as soon as the mind all officers darted introducing the subject of his own activities are we by that the term well i think the factual findings implicit in the california supreme court's conclusion our findings entitle to a presumption of correctness so some of the key language i think found on page four nineteen of the excerpts the record that's that's where the was after the officers of the his own this do you think that's precisely right your honor that is another way of putting that is that it should have been no surprise to the product to the officer either mr simms responded with something like i had to kill that why because as the california supreme court found the officers entire line of conversation was a technique of persuasion another factual finding that i think is a difference a technique of persuasion designed to produce the precise kind of response that it did produce i'm so again i think you're right you're on of the subject was changed when as even the officer officer perkins and the prosecutor during the trial conceded mr simms question what's going to happen next was surely that were purely as officer purposes the record in this case and i direct you then to the issue harmless error yes i'm assuming that the california supreme court was correct in its conclusion that that statement was introduced in violation of miranda the question then i harmlessness i mean the standard under brecht is whether the evidence had a substantial and injurious a factor influence in determining the jury's verdict as we've argued in our brief and i need not go into it here if the courts familiar we think that both the california supreme court and th really did the wrong kind of analysis as a legal matter that it seemed to approach this question by asking how weighty was the other evidence in the case rather than asking how significant and what kind of role did the impermissibly introduced evidence likely cla i miss the supreme court has said in sullivan versus louisiana the question is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered but whether the guilty verdict actually rendered during the trial would surely unattributable to the error we think both the california supreme court when it's that well the other evidence in the case was overwhelming as to the operative question of intent to kill that really did the thing that the united states supreme court said a court should not do at the harmlessness stage and all the district court did was quote the california supreme court finding on that point so under the correct standard the statements in question here i think can't be deemed harmless then the statements in question aren't culpa tour statements by the defendant himself and they were used by the prosecutor at the guilt stage to prove intent to  the state when i had to kill that boy is the first and there were others intent to kill was significant obviously because both the special circumstances lying in wait and felony murder required at that time under california law a finding of intent to kill so without that finding this wasn't a capital want to make three points about that i think the question again it's not the one tries to ignore all of the other evidence but the focus of the analysis at least should be what likely role to the impermissibly introduced evidence apply i think i want to make three points there the first is what the supreme court and clear evidence of who can i would regard i see you're on i think it would i still want to make the point that i am using it in amounts to a confession on the operative legal question of intent to kill and that's precisely what the prosecutor here said it meant and so it's critical i think as much pressure as suggested to look at what the prosecutor said during closing argument he said that these statements are very important because a statement from the defendant is a window into that defendant's mind and as to the particular statement i had to kill that what the prosecutor said that statement is really important because it shows the specific intent to kill well if that's the it is a window into the defendant's mind then something else important  during the jury's deliberations i think is a window into the jury's mind that thought these statements were critical this is not in our brief but it's at page fifty nine fifty seven of the trial transcript shows that the jury requested a read back during its deliberations of officer this testimony regarding the las vegas interviewers and it was that testimony that introduced the inculpatory statements by mr simms the jury also asked for a read back of defense counsel's closing argument on the issue of intent the court refused  make a slam dunk case of intent to kill on what i'd like to say there your honor is that the point i've been trying to make is these statements i think are direct evidence of intent to kill here one could want to draw the inference from the other evidence that there was an intent to kill but i think it's circumstantial evidence and it could admit of multiple inference of awfully powerful circumstantial evidence well one of the things that the prosecutor pointed to was the manner in which mr harrigan spotting was found abandoned gagged in the bath tub with the water running ye no it wasn't the great was only plugged because the victims had effectively plugged at that is i think it's significant that mr simms did not plug the drain in fact the drain plug did not work and so it's not the case that he put him into a bath tub full of water again here i'm not trying to argue that it's impossible to draw the inference of intent to kill but the difference between the impermissibly introduced evidence and this other evidence is the other evidence is circumstantial evidence requirement and inferences the statement is direct evidence of of the categor kind that this court in the supreme court has found particularly damaging if the evidence the prosecutor himself stressed as very important and really important to showing the specific intent to kill and so far as we can surmise from the jury's deliberations it was evidence that the jury itself which stayed out over the course of two days for between nine and ten hours i believe and deliberations that the guilt phase the jury itself thought was central to the question of intent to kill so yes this other evidence i could support an inference but that's not the question the question is what likely claim i think it's important to stress in reviewing this claim that the way in which the claim has been portrayed to this court which is which involves a rather intricate examination of various jurors and the potential motives that many and that one might attempt to apply as to the excusal of those jurors there is no relationship to the way in which the motion was litigated in the trial court we are after all reviewing  decision made by a trial judge with respect to whether or not the exercise of pressure a challenge is was made in good faith and was made without a discriminatory motive and i would point out before i address the incidents or issues more specifically that none of these comparisons were made in that approximately seventeen page hearing at which most of the work frankly was done by the trial court on a claim that at that time focused not on hispanic jurors at all but on the removal of black jurors as this court has indicated the trial judge ultimately expressed for the record his view that the challenges were made for proper purposes there is really no dispute as to his finding in that regard realistically and we know that in making that finding the trial judge volunteered to review the questionnaire submitted by each  so the idea that has been pushed at least in the federal court that somehow everyone misapprehended whether or not this was an inquiry into the dismissal of each juror as opposed to simply a misunderstanding that all of the jurors can't be properly excused is belied by the fact that the judge reviews each questionnaire and in fact each juror is discussed including the two jurors who are alleged today to have been the source of or rather the trial court's evaluation of the prosecutor's credibility and that is what is missing from this petition or his analysis the fact that as this court is a lab aerated even if attempts are and or rather the ruling is ambiguous i submit this one was not the fact is that deference is owed to the judge that evaluated these jurors and this prosecutor that i sensibly had prior dealings with the lawyers involved and made the determination that the challenges each of them was made in good fa basis and that is after hearing from the prosecutor i think the only reasonable inference to draw is that the court is listening to the prosecutor it is the court that points out when the motion is first made that the court has been monitoring prime three challenges as against both african american jurors and hispanics yours before anyone has asked the judge to take note of this so this trial judge is mindful of this and as judge reimer has pointed out the prosecutor explains that he has no rational reason to challenge people in a discriminatory and irrational weight unlike the facts of this case that he has a caucasian defendant that he has an african american and hispanic witness and that it is not sense the felony as for the record that such a motion has never been filed against him in the past so there are ample statements by the prosecutors to why he is excusing the jurors in question the state supreme court making reviewing the case both under baton and under the state law on the subject will or is entirely satisfied as is the district court who goes the additional step of conducting a do novo review of the challenges of the jurors and finding that the jurors in question and and i would reiterate we are now restricting ourselves in light of the certificate of appeal ability to all of the hispanic jurors but those jurors were properly excused by the prosecutor for the reasons stated in the briefs you'll i point out that deficient or does not involve the standard of review that applies when a state trial court and a state appellate court have made factual findings with respect to the lack of discriminatory purpose but that standard overview applies here i would like to turn now to the second claim raised johnson has to do with the initial problems of the vast sums challenge and that is moot in this case under hernandez vs new york because as soon as the motion was made the judge very brief for me at some point i'd like to turn to the jury misconduct claim and i would like to point out that i think the the the major deficiency you know much was made in the petitioners argument of the claim that all we need do this state a claim which if true in titles lost her relief if the standard were that  negligible there would be evidentiary hearings in every claim in every a b s corpus petition filed in this court because it seems to me at least nobody in their right mind file the claim filed a habeas petition that does not data claim which if true would entitle one to relief that's the point of filing the petition more than that is required and must be required for there to be any kind of rational exercise of the right to an evidentiary hearing in this case with the benefit of many many years of litigation many lawyers and i would imagine enough money the only thing that was submitted with respect to this claim of misconduct viz of levy's jurors was the hearsay declaration of a juror from the sims trial to the effect that another juror allegedly stated that the other juror ostensibly ms morrow i had had a conversation with a friend as i recall in the beauty parlor now well i'm not sure i mean you're meaning it because here's a declaration what else are they supposed that they're supposed to do what they should do your honor a number of additional things they should either obtain the declaration from this witness or make clear why it could not be obtained there is no declaration for moral be but that doesn't mean that those in the address whether or not the one they got from someone who  that's the issue i mean i'm not sure what i take your point about there has to be maybe something more of it when you then shipped over sort of sweep of siberia or discredit a declaration because it's hearsay by definition it's hearsay well we're out of my car my point is i'm not i'm not slicing at that fine my point is that they have not obtained statements from the jurors allegedly involved at all and they have not demonstrated why that could not be done but i'm moving beyond the the threshold procedural issue to the substance of what is alleged because and this was discussed i think by the court already but i want  and i'll indicate at the outset i'm not defending any discussion that should not have taken place between a trial juror and anyone else but we do need to look at what was allegedly said in this declaration and despite the very colorful language in the briefs the petition was brief about a plan being hatched and then a financial interest in selling a book i submit that when one reads the actual statement it may have been there was no indication of any of that taking place marlene i'm quoting now from this i'll stop calling it a hearsay declaration judge fisher and i'll just call the declaration marlene told us that she first learned about her a let me read it earlier one of the jurors marlee morrow told me and several of the other jurors that a friend of hers had served as one of the jurors in the trial of mr sims codefendant ruby pa all interrupt to point out that these jurors were well aware of paget's role in this case by virtue of the evidence that they heard let me continue marlene told us the if she had just first learned about her friends service on the tattoo jury when she and her friend in minot beauty shop that they both frequented she told us that as they talked she and her friends discovered that her friends had occupied the same seat in the jury box during the patch a trial seat number three that marlene was occupying during the sims trial marlene also told us that she and her friend were thinking of writing a book together about the two trials she said that they were going to write titled the book something like seat number three she said they were both eagerly looking forward to getting together once the sims trial was over to compare their experiences as j two cases and to work on their book i do not exactly remember when during the trial marlon told us about her friend but i do remember it was before we began our guilt phase deliberations now i'm not praising it i'm not defending it but the point is this conveys nothing that could be construed as actionable misconduct which is why when the petitioner cites cases on the subject of jury misconduct they invariably involve a juror transmitting to fellow members of the jury inadmissible and inflammatory information typically about the defendant's criminal past what is generally convicted there my recollection judge lecture is that several jurors were aware that she had in fact been convicted and as there was a claim that did not proceed to this court and was not involved  hearing either of that involved jurors knowledge of of her case but regardless and i i cannot given the size of the record all that i cannot more specifically advisers to exactly what that information was but it is true two things one of course paget's role was her involvement rather in the robberies and the murders was part of this case and second the and i don't want to go too far down the road of speculation here but the fact that padgett was convicted arguably is at least as helpful to fission or as it is damaging in other words it reinforces for culpability in the case and so it's difficult for me to fathom offhand why it is that the fact of her conviction necessarily prejudices him i'll turn the if i could to the miranda point the petitioner began his discussion of the claim by describing what occurred between and the police on on christmas day and the day after that of nine hundred eighty five as two days of interrogation this was not two days of interrogation there was a brief meeting on the twenty  december in which the petitioner invoked and as the police prepared to leave there was the colloquy that has created this debate for many years and that brief conversation ended shortly thereafter and later it was the petitioner not the police who called and informed the police he wanted to talk to them and they returned on the twenty sixth so to think the portrait of improper interrogation whether it was two days or whatever you understand the circumstances was a clear but you know the california supreme court had no problem clearly find the critical day which is the december twenty fifth conversation because that's when he makes the most direct admission of i had to kill the boy why should we just accept that and proceed to harm we certainly for purposes of my argument i will proceed garma sarah but the reason that we need not and the reason that the district court did not and the district court in fact this case has led to more multiple interpretations although mixed law in fact the issue that the california supreme court resolved that is not i submit a factual a purely factual determination which i am bound by and the stop from disputing and fine except your honor for example the state trial judge the judge that listen to detective perkins testify made the factual findings in the first  applying case law to that determination in terms of deciding the the impact of perkins conduct and in doing so the what i submit is given short shrift in that analysis is the organ versus bradshaw case from the supreme court in which and then that case is also not addressed a great length by the district court although the district court finds that no interrogation occurred i submit that there is no daylight between the facts of oregon versus bradshaw and this case with respect to what it means when after police have terminated an interview a defendant says what what i'm doing is in the u s and the discussion and i was struck by two things one that the california supreme court worked out that scenario and what it did and that the prosecutor in closing argument if you were doing that in relationship to discussion of extradition but he wasn't he was of blurting it out after as i understand the fact that padgett got into his investigation and put on the table with a gun in the hotel room so even the prosecutor in this case seemed to think that it was unrelated to the extradition which indeed was the question that assumes asked my interpretation is different judge for sure and that is that the volunteered statement is not a statement that one would expect in response to the explanation that the detective perkins has given since but as to the point that you're the defendant about the facts of the case or marina florus i think i could be mistaken as the other case and the court indicates in both of those cases that an explanation about the facts and circumstances of the case look at it's true it has what this case does not have which is the officers after the defendant statement reiterating the morale advice but that can't be a requirement and it is not a requirement there the officers ironically do in this case what the detective does just after the statement in other words they explain the facts of the case to the defendant and notwithstanding all of that the united states supreme court says that when it is then it says what is going to happen to me now is initiating a general conversation about the crime but the reason that i don't want to dwell in ordinarily on the miranda claim and in particular the disagreement with i have with respect to the petitioner about a methodology if you will with respect to how the state supreme court resolved the miranda claims that the criticism that they make of the state supreme court of the district court as i understand it is that they have essentially botched the breck the now or the the harmless error analysis by focusing too much on the weight of the evidence irrespective of the statement rather than focusing on the intrinsic prejudicial impact of the statement if i understand it correctly very few responses to that the first is the point is irrelevant in light of this court's decision cited in my brief in  it doesn't matter how the state court goes about it's harmless error analysis in terms of whether or not the brecht standard of prejudice applies in this court not turning to that harmless not under the direct standard the fairly lenient standard that applies in this court under the chapman versus california standard and the reason for that and the reason that all this discussion about the statements of this petitioner on the twenty fifth on the twenty six some of them were admitted some of them were not all of that is completely belied by the physical circumstances shirt he doesn't merely bind him and gag him rather he doesn't merely hog tie which is the description i think i heard before which is in and of itself of course a brutally sadistic act he takes the sock and he places it in the boy's mouth he places a pillowcase like i was bound by direct i'm sorry takes a washcloth down by a sock puts it in his mouth puts the pillow case over the boy's head and applies a ligature or rope to the pillow case that the coroner testified in and of itself look kill the boy in ten minutes any sense emerges the boy in the tub full of water you know that is that with the record shows it says he was found with the water running and but the drain was pulled and my impression was i think  by the body of arrogance so that's you know putting somebody into a tub with the water running but the drain open raises the question is what's the purpose of having a water well i was discovered later with water in the tub at the moment that he put it in him and i don't recall whether there was an attempt to establish exactly how much water was in there my point is and this it w a point found beyond a reasonable doubt by a state supreme court that no rational person i submit can deny the obvious intent inherent in that conduct and yes was it was it disputed was there some attempt you know some some far fetched claim in the guilt phase to do something i mean what else could he do he had to produce some effort to establish that this was other than an intentional murder otherwise we're halfway to the death penalty face being concluded well i take your point and i understand with that of the court found there is overwhelming evidence of brutality but each of the case in one of the cases is the person killed outright his argument is that if you if you're if there's no confession here the jury's left hander exactly what you're arguing which is these things he's doing exceptionally cruel and and whatever with a high risk a high probability of killing them or what is the primary intent really the real intent simply to prevent them from escaping well i'd you know we can go over to that i'm aware of the facts in the cooler i mean it's thirty two degrees he knows the thing is going to be open for ten hours and whatever but actually judge for sure the facts and the cool are important you know into other respects because when he leaves the boy or the boy's body and he goes to the pizza store he's wearing a sweater to conceal the boy's uniform of the manager who has the presence of mind to try to be very orderly with sometimes a party realizing that this is a robbery when the manager buys this him that they expect a delivery boy  houdini could not liberate themselves from that that mitchell sims would not have wiped down the room as meticulously see that for fingerprints my point i was about to make with respect to the cooler is that when the remaining employees are han by the petitioner that was standing again the theoretical possibility that this might be just simply the most painful form of into past the patient one could imagine the jury ultimately convicts jury would or wouldn't have had there not been this confession out there which really erases the need for a lot of all of the discussion about what other possible reason could he have this case from to make a metaphysical only my metaphysical problem is how does one top take try to apply bright compared to chapman and not enter in a realistic sense and try especially when you have this one piece of evidence which clearly everybody else agrees powerful which is a confession yes it's limited to the temple that was the operative issue so in a good faith effort on anybody's part trying to figure out what the impact is it gets very very difficult and i think that my time is up so what i was simply saying who kluge an is that brecht asks whether absent the alleged error a different result is reasonably probable not whether it is theoretically possible not whether one could conjure up a potential scenario in which this the murder was best described rethink by the prosecutor when he explained just in terms of the circumstances of this ordeal evidence other than the confession going to the harmlessness question and evidence coming the other way supporting the lack of an intent to kill includes the fact that mr simms cut the phone cord in the hotel room unclear why he would have done that if he was meaning to kill the victim in the found and in the bathtub and also that when speaking with those at the domino's pizza and saying when is the cooler going to be open and told it was eleven am the next morning he says well by that time ruby and i will be in san francisco that sounds like what you think would happen to the two guys you just strung up and these are almost you know thirty two degree temperature hanging in sort of position that any human being is likely that you finally give him i see that my time is mystery reaction to the two people he was putting in the cooler why would he tell people he expected to be dead by eleven am the next morning that he and his accomplice would be in san francisco when in fact where they went was las vegas except to try and you know get the police off of their trail so again i think this evidence is highly circumstantial it's the kind of evidence that could support a finding of intent to kill to be sure when compared to the highly powerful evidence and especially considering as judge fletcher mexico i think that the fact that this jury was out for so long even