was shot in the foot by a burglar in his parents home he was a teenager fast forward thirty years later to mr frank's trial in two thousand and eleven and did not include that experience on his j questionnaire however during the proceedings he did volunteer a correction and it's really important i think the words that he used when he did so he didn't say my parents were victims of a burglary period he said i was witness to the burglary of my parents home so he placed himself there at the scene and it was more than sufficient to allow to alert the court or counsel of the need for a follow up if they were concerned with what had happened that he that he didn't indicate that he'd been shot he did not indicate that he had an heart hardly something one would forget i would think i would not forget that it had been thirty years i don't think you know when he volunteers that the incident occurred i don't think that shows intentional concealment in any way i think that's under twenty to fifty four d two i think that's an unreasonable determination of the facts well if your case is complicated because it's under i mean if it were straight my circuit authority would have sliming to some other issues but how can we say without a precise spring court case on point we have a constitutional violation here well the constitutional violation i think does exist under circuit authority but of course hurdle i do think there was an unreasonable determination of the facts in this case which would clear that hurdle and i do think there's clearly established supreme court precedent including but not limited to mcdonald versus greenwood in that case of course gave us a test for implied bias based on concealment of information i realize it's  case yes it is a civil case the issue there the right at issue was the right to an impartial juror jury of the civil litigant and here of course we have a criminal defendant sixth amendment right a fundamental right the supreme court has told us that that right includes the right to be free from judicial coercion and it has spoken clearly on that i would reference jenkins versus united states one nine hundred sixty five the court said the principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no a lab aeration one thing i think that's important about this right is it's not it's not a broad general right it can't be violated and numerable ways there aren't a bunch of different applications i'm kind of having a hard time equating not indicating that you've been shot in the foot with some right that you don't want to give up i mean what what is his closely held right that he does want to tell the body that he was shot in the foot so i don't  not sure i understand the question i don't know about a closely held right to the juror nine you know what is i mean you're talking about closely held beliefs these not supposed to give up right  well i get what i was speaking on there was i think there's two ways that a judge could course a jury but how is the judge coercing the jury here i mean that's this is where i'm having a hard time well i think the judge is concerned was that this is a juror who didn't disclose in a in a criminal case that he had been the serious victim of a crime in abidjan and and then when he gave you this kind of amended answer so to speak he still didn't disclose that he'd been shot and i think the court was concerned about that that's true he still did not disclose that he'd been shot he knew he was going to be asked follow up questions when he disclosed and in fact he was asked questions he answered them all truthfully i believe that's not in dispute at all you know but i don't know of any lawyer that would just say oh by the way were you shot during that very i mean it's not the normal question that i mean you would think somebody would i suggest that if that had happened you would think yes  but i think the supreme court has been clear that that is not the burden on a juror the burden is to be honest and truthful the burden is not to be one hundred percent accurate or inclusive  they're not lawyers they're not prepared as witnesses are even i think that that's what the supreme court was speaking to in mcdonogh but the flipside of that argument is which we see from in criminal cases from time to time is that you have  a juror who doesn't disclose something and it turns out he's biased against the defendant and was not disclosed during for dinner and we say well that's that's depriving the defendant of a fair trial so that's the flip side of your argument but in the end the question is did the did the trial court have good cause to remove him and the only thing that would place that into question at all is the fact that he was  juror that's the that's the complicating factor here that is a complicating factor it's a very important factor otherwise we wouldn't be here of course as to the trial court's findings though i think that the trial court here was really concerned with the loss of the prosecution's right to peremptory challenge i would point to the trial court's finding was an inference of potential bias that's not a finding at all every juror potentially biased the trial court did not use the words actual bias nor implied bias i don't believe the trial court even found intentional concealment i think the trial court thirty six and nine forty one where after an unreported sidebar the court questions juror number nine and then the prosecutor is basically making out a case for how the prosecutor would have exercise bias actual implied and then so called mcdonagh guys so they are not the same implied bias is when someone is conclusively found to be biased even though  in the form of implied by the supreme court has not itself found implied biosafety constitutional theory they haven't found it is they haven't found that isn't the case cited in the reply brief that us we would somehow establish as it would is a case in which congress categorically precluded government employees from serving on juries and the court recognized there is a theory of implied bytes in common law but they did not in trying to do is a constitutional matter and they didn't need to reach that question because they found that it was irrational to conclusively conclude that government employees were biased so it is it remains correct just as this court has held and held in bank that the supreme court has never itself recognized jurors were having a problem with this juror and then these other issues so that's that's the element of coersion any time any time a judge becomes aware that there's a holdout juror and there's a request by the other that's when they that's when the concern about coercion comes into play so now you can start with what you're going to answer well you can't insulate yourself from being dismissed by blurting you know that you are a holdout there was a citation to brassfield which i believe also petitioner cited and explained no it's one thing if a court holds a hearing to fix try to figure out how are you split up but if instead the court is trying to figure out what the s this one or reversed a district court judge so that's i understand we're not dealing with ninth circuit law or dealing with supreme court law but that's the main that's the concern is that on the record was there when when the holdout juror was removed  usually when the jurors come in and they say you know we can't get along this person isn't cooperating the person is emotional and so forth and then we've said the trial judge has a has a higher duty in that circumstance to be careful once the judge becomes aware that there's a hold out you're so i've i don't mean to argue with you on that i get what i'm really eliciting from you is how you think that that theory doesn't come into play here and if you disagree with my with my statement fine but assume hypothetically and tell me in this case why you don't think it plays out well legally i don't think it comes into play because supreme court theory with me i'm just saying i'm asking you to go through the assume assuming that it applies in this case at all i think you have an argument that in fact there was a good cause to remove the juror even though the juror had been identified as a holdout so i'm trying to listen from you your argument on why you think it was a good cause was satisfied and that the california court of appeals decision was not reasonable determination of the facts no even after he amended that to include witnessing his parents the court asked can you think of anything else in your background or training the attorneys might find of interest and he says no and they point out well before that they had  the party said really focused on you know on people one who was attacked with ice pick weapon use someone start a fire shotgun weapon used shot while driving weapon use and when another juror said there was an armed robbery that occurred thirty five forty years ago they strictly as any weapons involved know so there was a fair basis to infer that he understood weapons would be of interest and he still didn't him in that and the idea that he thought well that really wouldn't be important sort of betrayed by the fact that he brings it up in the jury room so it isn't something that he didn't think was important he had plenty of reason to think the attorneys would have thought it important an so now returning to the theory do you really think that it would be constitutional for i stay trial judge to be informed that there was a holdout juror and based on that information along to remove that juror from the jury because i think i that's i i thought i heard you say that and i just want to make sure i understand i know my point was that adding the fact that someone is a holdout juror cannot tip the scale in terms of keeping him on right but would i want to make sure i understand your position you're not really saying that if the only issue is removal of a holdout juror absent anything else that that would be constitutional for a judge to remove the hol i'm not aware of any supreme court case in that it is and it's hard and i'm it's i'm not you're holding out you're off the jury and that's it that's constitutional well your honor can't i can't believe that you're answering the question in the manner in which you answered it just a joke chief judge thomas was not asking you oh you know is it wrong let's say we have a we have a jury of twelve in a criminal case and we have a situation where somebody just refuses to deliberate ok these won't deliberate they won't talk to their other fellow jurors that there's precedent for removing somebody under those circumstances there's no question about that they just refused to do their job as a juror what the chief judge asked you was if you have a jury of twelve and they've been deliberating and there's a person that's a hold out and the judge just wants to get a verdict doesn't want to retry the case and the judges as well this is a holdout i'm going to remove that holdout you're not suggesting that that's ok are you i am certainly saying that there is nothing clearly happening that is unconstitutional especially given that the supreme court has not held there's enormous right to a jury verdict in state court so to for me to volunteer beyond that they have not held that there's a right unanimous jury verdict that has been the principle on saying you can't hold you can't remove a hold up sure there is no such right constitutionally established in state court so for me to say that a theory that is based on  you removing a holdout juror is equally or more coercive then saying something in whether instruction or non instruction comment that would record cause the juror to surrender his his or her views that's cordial but there isn't any counsel there really isn't anything in the record here that would suggest that the judge just removed the juror without any basis at all principally and only because they were a holdout juror what you have is a basis though i know you believe it's pretextual ok i understand that but you do have the judge and the court of appeal agree with the judge that there was a reasonable basis to remove this person because they had made a material omission ok in a material omission can be as bad as a as an outright falsehood and that was the problem so we don't have a situation where we have simply a circumstance where the judge looked and said oh my goodness you know this person is keeping us from getting a verdict i'm going to figure out a way to get rid of him i don't see that in the record that's true i understand what you're saying once it becomes known as it did in this case that juror was holding out for acquittal and also the manner in which it came up it was clear that this issue came up from the deliberative process itself both of the other jurors that the judge spoke to were complaining that they weren't going to be able to reach a verdict that day which was only the second day of deliberations by that by the way that juror number nine kept changing his mind so i think once it came to the court's attention in this manner since we know that the supreme answer this question in perfectly and they're having all this trouble with them i'm going to declare a mistrial we would your client be here saying there is double well you'd be arguing the opposite i think you see i think what i'm saying i think if the trial judge had declared a mistrial right then yes i think i would hear arguing double jeopardy if i could and perhaps eventually miss trial would