ready for argument on our st case which is barnes versus thomas mr wooden house you please accord i'm gordon wyden house along with george curry and represent william barnes and this matter five years and three days ago this court wrote that mr barnes allegations raised a genuine concern as to the lack of juror and partiality in the case and did so saying that to the extent that a juror had a conversation with a rd party about the spiritual or moral implications of making this decision the communication was of such a character as to reasonably draw into question the integrity of the part that language was important because this court recognized the significance and the fundamental importance of having a fair and impartial jury i jury each one of the twelve who makes an independent judgment not collared by the view or communication obviously party at the time this court found the improper communication noted it was such a kick of such a character as to call into question the integrity of the verdict relying on a previous decision in the four would be leak case what's your best evidence from the evidentiary hearing that the jury was tainted what happened here i think the best evidence comes into respects if you're on one allow me to present in that fashion there are two things that happened that brought this improper contact to the jury the st was holly jordan a sitting juror in the case felt the knee to talk to her pastor about the sentencing decision she did so in the face of forty two admonitions not to talk to anybody about characters she went to her pastor in the middle of deliberation storm aeration started on a wednesday afternoon wednesday night she went to prayer meeting where think i'm at least aware of the underlying facts of what happened before at the during the jury deliberations but my question is in the evidentiary hearing wha t's your best evidence that what happened when she talked to the pastor and then went and pontificated to her colleagues on the jury that it somehow impacted or tainted the jury's verdict well she testified at the evidentiary hearing she was afraid she was going to burn in jail she mentioned burning in hell at least five times during a hearing that didn't last all that long and because of that fear of potentially burning in hell she sought counsel from our pastor to get spiritual guidance from a man that she testified at the hearing she considered her spiritual ment injurious effect or influence on the jury's verdict so i think judge stackers question there's also mine is what's your best evidence that there was a substantial in and jury a fact on the jury think maybe i'm not answering the question very well so i'll give it another shot a part of my best evidence of the substantial and injurious effect the natural effect is a juror is so concerned about burning in hell she goes to talk to her pastor which she is not permitted to do she violates her oh that one that single this year even if we don't look at the others that single tear perhaps the way she did as a result of her fear of burning in hell after she talked to her pastor well we know we know that she was afraid of burning in hell and she might have voted one way she  and talks to her pastor who says you won't burn in hail and reads her a passage from the old testament based on all of the record before the court which says life taken shall be six o six b what you have to do is take circumstantial evidence right all right to be able to in court of the particular juror but you could ask which you had the opportunity to do and your remember hearing asked the jurors that you called as witnesses will what was said with respect to returning a verdict as to wife or death so do you have any evidence from any of those witnesses when we know that m jordan testify i told the other jewellers what my pastor told me he assured me that we would not burn in hell she would not have taken that information to the jury if she didn't think it would help assuage jurors concern us that's the only reason to take that information once she gets it and is satisfied herself there's no need for her to talk to her fellow jurors unless somebody is concerned the whole record in this case indicates that at least one juror was crying the whole record in this case indicates that ms jordan jury if she didn't think it would have some influence on one of the other eleven jurors she is satisfied she says wants she's met with her pastor had a sufficient enough discussion that she spent fifteen to thirty minutes in the jury room telling her fellow jurors what she and her pastor talked about so however long she following up on judge what do you think mr jordan was trying to do she said i guess she was trying to influence a juror so that is some direct evidence from the evidentiary hearing that what she was trying to do according to your wedding then once convince a jury who was on the fence presumably about day half that it would be ok to do so and the court we all i'm sure and i'm just emphasize thought she was asked at some point i guess in your examination or whoever was doing the trial work did she say one way or the other what the verdict should be in the answer to that she didn't know she did there's no evidence that she said what the verdict would be but she was really the government takes the position of certain that by addressing this fear of eternal damnation that simply freed the jury to follow whatever the directions the trial court gave them it contradicted a closing argument by  lawyer for mr chambers if the jury was making a moral judgment which jurors are entitled to what want you address that question if and i'm not trying to preview what i would assume the government will argue but if if the effect of ms jordan's conversation both with the pastor and with the other jurors was that we can now we are now free to do our duty because we're not under strict or of eternal damnation but we are free to follow whatever the trial court tells us we're supposed to do have how has it been  a injurious effect on the jury if they're simply following the court's instructions cause she well the my st response to that is she didn't just read a passage said followed the court's instructions she reads a passage from the old testament that says life taken shall be punished by taking life that's different the master told her and that was her testimony that she said that the pastor told her that you were to follow the law of the land whatever that is if you know homewrecker judge in this case indicate she marked three or four passages juror peacock testified one of those was the a life passage that she ran in the jury room but did she but as going back to judge a days question did she also say that the pastor told her to follow the law of the land whatever that is there evidence and the whole record indicates that she read a passage about the jurors duty to follow the law by almost all intent in tandem with passages saying life you'll be punished by taking off and going back to judge floyd's question he asked about other jurors you put on the stand and you said weddington and we heard what a little bit about what she testified about i don't know how we could have stronger evidence that this was an improper rd party communication jurors jurors are supposed to mike their decision based on the evidence in the case following the judge's instructions there to talk that i'm with you on the improper communication but the next part is that has a substantial and enjoy its effect on the verdict on the jury sent so that in that language talks about what's the natural effect of the communication and obviously this court has to make an object of analysis of what the natural effect of these communications would big but you have twelve jurors that appear to be struggling with what sentence to impose we have twelve jurors that the record as a whole indicates we're bothered by a closing argument we have to twelve jurors ele regular churchgoers it's a religious jury and one of the jurors feel strongly enough that she needs to get essentially explore testimony about what kind of circumstantial evidence that the court will need to look at to determine what effect this improper communication might be is you have a religious jury you have jurors that that are religious to go to church and  goes out and talks to her pastor and her pastor tells her whatever he tells her and then she goes back into the jury room and spits fifteen to thirty minutes longer than i'm going to be spending discussing this matter with fendants the death penalty state ask for the death penalty for all three of them correct and so one of them got life in prison the one got i can present testified he wasn't in the hands when the murders occur and if the jury believe that they wouldn't be considering the death penalty for it because he wouldn't have been part of the killing it said that takes us down a very back to live right now at this point sitting where we are i agree and i don't think the court should go down a speculative road we have rules in place that jurors are not to talk to rd parties that is a hard and fast rule jurors are not supposed to do that i had to keep repeating pastor to get spiritual guidance about what to do if all we had was during jordan talking to her pastor and that and it stopped vire you have a different issue but she doesn't stop there she then brains what her pastor as told her to the rest of the jury the next day she would not do that act i submit unless she on circumstantial evidence about what would the effect of a sitting door talking to her pastor and getting essentially expert testimony expert guidance about what might happen and what the jury should do imagine if the issue before the jury was a question about intellectual disability or what we in the old days called mental retardation and one of the jurors went to her psycho therapist in the middle of the trial and said you know there's all this and then she takes that to the other jurors and the defendant doesn't know about it he has no opportunity to confront their the jury is giving expert guidance about the ultimate issue in the case which is precisely what happened here i mean evidence was the material fact in the case the timing of the receipt of the extrinsic evidence right in the middle of deliberations as to the penalty and then the strength of the overwhelming of the case evidence in the case and with respect to mr barnes he had substantial evidence of mitigation that i think the district court gave short shrift to the difference between frank chambers and where  responsibilities that he had helped with he had mitigation in the case that could have led one juror which is all it took one juror to return a sentence of life so that's the situation with william your honor and the date see you agree we would evaluate it we have to you can't yes i agree with orange counsel that we can ask a juror although we know in this case because she gave the answer and counsel from orange objected to it after he got the answer he didn't want to question we can't that shouldn't be considered under rule six hundred and six but and what was that last year and what was the question i answer you referring to guidance on what to do the record from the evidence you hearing specifically refutes that argument in the brief was that she was looking discussing with her pastor whether to impose the death penalty again the record refutes that i'm sorry but what i i really want to know the answer to my question well what was the question i answer that you are saying barnes cancel objected to it evidentiary hearing because he didn't like the answer it was in two different spots one was he asked were you worried about what this is on j two thousand two hundred and seventy two were you worried about what to do in the case when you went to talk to pastor lomax her response and this was begins another question and then juror jordan your hearing continues on it would have made a difference either way if he had said yes you're going to burn in hell it wouldn't change my mind about how often what he would have got and at that point mr wodehouse moved to strike that and six of said ok so it would have changed jordan's mind then why did she spend what are we to do with the fact that she spent half an hour discussing this with the other members of the jury the girl then sit she had already made up her mind i mean and it is does seem to be common sense that the only reason to talk to the other eleven then would be to jordan reading from the bible weddington doesn't remember the name of the juror but she remembers a juror reading from a bible both peacocking general weddington said they could not remember what verses whether it was old or new testament but testify a peacock did testify i do remember the hour for non tooth for tooth verse she didn't testify the evidence you hearing anything about a lie for a lawyer but she didn't know what it is is the old where and i are to mean in the context of a death penalty case well that would depend on whether it's coming from exodus or matthew i would assume and we don't know if it's old testament or new testament now counsel  argued that it was all testament and there is a hearsay affidavit from an attorney who was investigating jurors that supports that and and the other side that counsel makes in his attorney if jurors air jordan had already made up her mind and it didn't matter to her either way as if you just read from the record what possible reason would there be for her to talk to the rest of the jury about this well she said she was relaying what her pastor told her but why it's speculation as we're sort of stuck with i guess here but it would be too take out the salvation at stake part of the argument so that they would not be concerned about that in for the death penalty or for  because the pastor lomax's conversation with your jordan according to george words testimony was that it was not advocacy for sentence of death but it was that we have to live by the laws of the i mean i know that court did the she testified one heard what she was told by her pastor and that but the two jurors didn't say she told us to follow the law of the land what we do have is from dura peacock saying in response to a question from barnes counsel did she state to the jurors other jurors in your presence that these bible verses supported the imposition of the death penalty and your peacock responded she did not state they were for the death penalty she didn't stay either way when asked and that's it two hundred and twenty nine you joined appendix when asked by barnes counsel a little later again did she read those jordan's testimony was about what her pastor told her about following the law which your honor as you just point out would be what the trial judge said so the natural effect of that conversation of this communication with the pastor to defendants chambers and barnes getting death and politely giving life as the district court noted the jury voting against the death penalty for blakely provides further evidence the improper contact did not prevent the jury from judging each codefendant individually and it preclude them from rejecting the death penalty as a punishment i think that is also evidence i guess when you look at the response was a few look at the evidence from the he she is your trying to convince somebody it was ok if it is yes or and that was not but the next house is going to say is is that arguably for that lot however as the district court found that can only be speculation and and what more and what more could mr barnes counsel have done to prevent substantial injuries the fact you know what what would be enough well in six to six was not rigorously applied in this case my junctions were not sustained the only two instances of six or six keeping out evidence was the two up that i spoke to earlier and terms of what petitioner could do in this case  know exactly where the to draw that line but i can say in this case i don't think there's any evidence that petitioner could present because of what would have happened if in response to questions from counsel to jurors  and that's what i'm trying to get out here i don't think anything can be done in this case because the evidence just doesn't support any allegation time that i answer that would clearly support a substantial and interesting yes or no are so many i believe so because if you six of six because that's that rd party contact that's not internal and it's bringing it so that would be evidence that clearly would show a substantial injuries effect on the verdict here we have the opposite according to that he did not lead her to believe pastor lomax didn't leave her to leader to believe that the bible supported the death penalty or oppose the death penalty he did not juror jordan's testimony makes it clear pastor lomax was not an the the testimony from juror jordan does not show any of that it shows the preacher told follow the laws of land consistent with what the judge would say and did not mandate any particular result now her it sounds like she says wait because we're killing him and then she goes back the next day at the start of deliberations and talks to him about this for fifteen to thirty minutes that is what she she does testify literally to do with that well i think the argument from defense counsel was you're all going to lose your salvation or our account spiritual so it was collectively to the whole jury i don't know if your jordan was but even turning it that way if she is relating to the other members of the jury what the pastor told her that would not be a substantial injuries effect because what the pastor told her again was follow the law and didn't advocate for any specific result in the  strong case of guilt this conversation with the pastor in response to the improper argument did not have substantial injuries effect i really this court could not  unsure and sent this back and no evidence at the hearing from the jurors who testified supports i would argue a finding of this court by grave doubt about the harms of so there this court remanded to give barnes the opportunity to prove actual prejudice after an evidence you hearing with no limitations only evidence from the three jurors that are call says we were afraid we would burn in hell and certainly powerful evidence of why she would take this into the jury room and that it could have had an impact on at least one or more of the jurors secondly the passage that writ that is i for an eye tooth for tooth a life for a life is again a mandatory religious study that life must be followed laws like must be taken and response to that the reasonable inference the court should draw from holly jordan taking that passage into the room is at least implicitly to advocate for the death penalty you don't read that passage to advocate for a life sentence the rd point is it's clear that she would been reading old testament because it talks about a life  life it makes no sense for her to read and there is absolutely no evidence that she read a passage from the new testament finally with respect to the strength of the evidence of guilt in the  fact that there was no ballistic evidence no fingerprint evidence no physical evidence to put mr barnes in the house there's evidence that he might have had the gun afterwards that he had some of the booty from the robbery no evidence puts him in the house the case is simply not all that strong given cases where because of the ability of law in georgia might be different case comes back to life i want to close by just saying if the state post conviction court had had the evidence that came out at the evidence you hearing in this case that they did not have a chance to present because there was no evidence or here and the state votes conviction court had given mr barnes the rimmer presumption because it would have had to at that point we would not be like thank you very much will come down to great counsel and on to our next