of the case and it comes back from the just the court with the finding of no actual bias on the part of mr heller i think thank you your hon happened here the similarities of the crimes the discussions at night with the wife the effect that he'll you testified it had on him during the trial when it was triggering memories of the attack we have a juror that wasn't indifferent and wasn't impartial as required by the constitution where we have a finding of non biased view disputes that we have  reason dead we don't know if he found that titian or billy harris burden of proof maybe that's fifty one to forty nine that's not the standard here under maddox once we establish and there's a very low threshold some potentially prejudicial contact with the jerk the burden shifts to the state and they have to prove they bear i have the burden of proving that there was no prejudice that being true all you've got is extrinsic conduct contact that isn't prejudicial well whether it should or shouldn't ha the conversations focused on whether or fields could be the person who attacked ms hill you i think you look at the depositions and by the way we have a situation like dire where the court you i'm just saying the point is that if it's a broader picture i think just what was in the one declaration i misspoke i'm sorry your honor i think the depositions went way way way beyond what we had here the depositions confirm that they were discussing the case they were discussing on a nightly basis whether fields could be the person who had recently attacked the juror but we learned at the depositions for the first time that hilliard supposedly had these misgivings about serving which again he didn't disclose during more dire i think it makes the mcdonough claim stronger than it back the evidence triggers memories while he's sitting there listening to the case and we were something that i think this is appalling that the reason he didn't allow his wife into that courtroom is because he didn't want the jury so again i think we have a very similar situation too dire we have an excess of zeal to get on this jury using loaded words and so what would be helpful to me if you get off the use of the loaded words that are conclusory and just talk english he came to the hospital he saw our heart he's he's the one he sat up and right for a month after the attack with the shock and at the door he was impacted by this obviously of course so now we see and you know your honor  well that he did say that he also said that i didn't want her to come to this trial because what if she did identify him as the perpetrator then don't you think in fairness i need to excuse myself from the question what is what about that that is a perfectly proper thank you saying i don't want you in the trial you know i'm now you're in this trial i can't discuss it with you i don't want you involved in it for a variety of reasons one of which is it might compromise my position which is otherwise uncompromised what's what's inherently wrong with that well i'll tell you i think to me it shows that in fact there had to be some doubt in this man's mind given how close the crimes were in proximity of fields look like the guy and the crimes that were involved i frankly and i know it's not up to me to make the credibility of eternity asians but anybody who goes through a situation like this you're paranoid floyd would have been just as paranoid and he's the one sitting there and has to focus supposed to be focused you know on the evidence of the fields case and he's talking every every night to his wife about whether this sounds like the guy who did that and i'll tell you no the problem i have with this your honor that goes away from that let's assume there we completely belief lloyd hilliary my wife was just paranoid that's the way she is haha you know how women are that's so what if there was a point the devil he said that to me he still has a problem as a juror here he still can't be indifferent to her i'm sorry he still has a problem because he's got a wife who thinks maybe this is the guy who attacked her so even if lloyd doesn't buy it he has to vote to acquit somebody and doesn't necessarily denigrate from a fact finding that houllier was in fact impartial i guess and i have a real problem with the fact finding here your honor and i think if you're doctrine of implied bias exists for a couple of reasons one of them may well be a situation where you can't ask the jerk but it goes beyond that is the court noted in dire look this looks horrible the court has to write an opinion it's just describe or said to me the last time we were jury which is one of the things the doctrine of implied bias is supposed to protect and you know the other problem with that your honor this test case after case after case where the jury comes in and says i wasn't affected by what happened and the court say we don't trust dire was a case like that friedman said over and over again it didn't bother me that my brother was murdered i thought it was an accident it had nothing to do with the case i was sitting on i was fair and impartial i decided their case on the m francisco concurring opinion you wrote i think there are numerous cases that talk about what you're there is a case there is well your question is where are a family member has been victimized and that's the only fact about you know you don't get bogged down in categories in this area and u s versus would it thirty six supreme court case says we have to you know we're dealing with a very important right here it's a sixty member it right the sixth amendment to a fair jury off the top of my head but i don't think that's determinative i mean we you know if the juror wise that implicates a mcdonagh situation but i think it's pretty well established at this point that is not the only way to get t first far as it goes but i think the cases recognize we need more of that but again i think that's just one way that you can show buys and the cases falk about the potential for emotional involvement whether the juror was distracted by well i was concerned about who was called to testify at the reference hearing before the before the p b s you know  testified i can't answer i really just i'm unaware of what went on as to whether there was any orders in the meeting how long the hearing would be or anything like that i don't i can answer that is your understanding as you mr drivers that the penalty phase questions are not on the air to deal with penalty if necessary to there was a reference in the order i think that talked about a twenty a j brief should address a penalty phase but again i don't think we get that i think this is a very compelling case and i think if you look at judge to resume his analysis you know the whole analysis of what your honor said the last time we were here this is a very strong claim he denied a way on this and the whole analysis here is two paragraphs long when you when you get out the factual stuff and you get the actual what he's doing he throws teagan as you know on t v let me let me ask you something if i ma obviously that goes back to eighteen i don't like i agree and i'm not worried about what he did or didn't do and i'm asking you for me ok well your honor again i look at us wood which was a case as to whether employees of the government were automatically disqualified from serving or criminal cases and the court said the question here is implied bias and did a whole analysis based on implied ice and di references  which explicit way called attention to the fact that inquire they didn't need to decide whether dishonesty was needed or not and so my question is if it's an open question even so latest wire which was written in ninety eight how would this not be teed barred even on the latest possible date which would be one nine hundred ninety four we're relying on the doctrine of implied bias and it's been around it's not it's not it's not new law and certainly the notion that a criminal defendant is entitled to a fair and impartial indifferent juror is also not new law but both concepts are earning a pretty high level of generality and if you've never had a case which has in fact presumed biased in the absence of dishonesty and arguably that's a fairly different result it's not dictated by these prior implied by its cases where honesty has existed   you know it seems to me under the authority that existed back then it is still not kosher juror and whatever label we use i don't think it matters for purposes of teak certainly the right to a fair and indifferent and the soldier's been around for a long long before fields and the courts have used various tools in adult lives in whether a particular juror past constitutional muster and again as us vs which says you know substance over form here we're dealing with a very very significant right so as i understand the teague line of cases it's not really all we need to do it was establish that the proposition operation of law by necessity so here we have a situation where truly exceptional situations that the supreme court in mcdonough and we in tensely have recognized might call for just presuming by asking inherent in the relationship wholly without regard to whether the individual himself truthfully believes that he is in can be an impartial and without regard to whether everybody else around it would agree that he appeared to be truly a d impartial i think the answer is there is no lie here the court very carefully ran down the reasons why although as dire teachers implied bias has been around is perhaps a little a little cloudy until you begin to focus on it it seems to me that in the ordinary course of our dollar a group of standard questions  many of them have to do with with the prospective jurors own personal experience with law enforcement criminal matters and the like very often the court or the parties will ask questions about the victim's family or question to obtain a new trial a party must first demonstrate that a juror failed to answer honestly a material question anwar and then further show that a correct response would have provided a valid basis for challenge for cost i submit that neither aspect of that donna rule is present in this case first of all we have a finding and this is an exceptionally conscientious intelligent intuitive aware of some of the negotiations around the point as i recall it the state offered to put him up to pay for his plane ticket we were very eager in track to have him in front of just everything but it became a parent that that was not going to happen the parties went to the expense and the trouble and the hassle of going to and you know hapless and connecting the videotaped depositions by stipulation there's no that was the case and judge to reason when he was informed as i believe he was before the depositions took place i believe he was aware of this difficulty and i believe he was informed of the parties that stipulated to go to indianapolis and take the juror himself himself has been a victim of the very same crime that the defendant is on trial there is no per se bar to service on the jury and the reason is because we have a procedure for jurors that we don't have for judges and that's for them and the voir dire is the opportunity for the court and for the parties to perl and to test and to discern for example that there's a follow up sort of one of these kind of unexplored undisclosed aspects of this case like i find very reason was was very interested in their sister by the evidence of impartiality quite apart from the naked statement this is not a case where we're you know improperly impaneled yes he properly got on the jury correct then you have him going home every night with the wife pestering him about maybe it's the same guy who attacked me what do we do about that what's what's the answer to that conceptually two quite different right problems which is implied in the court's statement and of course the only question which receives a unanimous remained order was one of the discussions on the jury yes while the trial's going on his wife is communicating to him about the possibility that the guy on trial is the same guy who attacked her yes and it seems to me your honor that the and this is a little harsh perhaps but it seems to me a stretch to impose a rule that a juror whose wife is the victim of a violent crime quite similar in several particulars to those charges against a man whose trials he's sitting on are to be removed because his wife about the possibility that this is the same was not just a fantasy it's a fantasy that's communicated to him i mean she can fantasize all she wants when she starts talking to him about it when he's on the jury it's a different story but  knew that the only interim information she had was from him knew in fact all all that she was telling him what they stand this sketchy in coate you know i think the only elements that he i think he told her that he was sitting on a jury effect i don't believe it does your honor and it's gross yes indeed it is your honor but of course in order to get to that point you are necessarily putting wife's conversations to him a after night didn't affect his ability to impartially evaluate the case because he said so and why is it that six zero six i know he said so but i don't know why he's able to six i don't believe it can be when the question is this very question implied by us arising during the course of the trial it seems to me there will be a wholly artificial and self defeating for your analysis to suggested reasons for the strategic decision and one of them was that he was african american you know another was was that sure looks like a good juror and six or six me or not he turned out to  and i'm not aware of a case that has facts of a crime against the jurors spouse that are so similar and in the same case the crimes are not this race being the issue maybe it was but there's no evidence of that this is pure conjecture by the state as to why he sat there mute while this guy was talking about assault and a beating in a robbery and you know i there are probably this case that's the problem and just a silverman i read the concurring opinion last night and you made a comment that that we should defer to the board guy or through the trial court the trial court was in the best position to evaluate this jury that's a problem here she wasn't in that position because he didn't tell her about the rape he didn't tell her about the kidnap he didn't tell her what he told me twenty five years later i don't want on this jury this is too close to home i have misgivings i want off this jury and they have four chances to do this that's why we can't defer to what judge martin did she did the best she could based on what this juror did and that's why what this juror disclosed was improper and this claim got stronger at their positions because he said as soon as they read the charges i thought i'd be off this jury this is a smart man and he understood what the problems were here read two years ago i mean for the facts here it come out i think that's a four cause dismissal where where the facts are are so close in the crimes and the perpetrators a young african american and so i says notwithstanding all of that i can put because because well the follow up we have a claim against mr just there was enough disclosed here i believe to where he clearly you know look this is a death penalty case and we've got six jurors up there we doesn't even question  the point where judge martin is you know she she was a good experience judge and she didn't understand you know this notion that hilliard was trying to sort of be quiet about the sexual attack cheating get it and you know that's why under williamson and this whole line of cases the jurors got to be forthcoming the jurors got to be honest that's how we pick juries in this country and you know what i may have been something embarrassing but but you know we  married related to anybody in the courtroom she said no and that was a truthful statement that was her ex husband who was one of the attorneys she wasn't married to him at the time and they weren't related she answered the case question honestly but she didn't give enough facts and details to make it a full disclosure and the u s supreme court had a problem with that and the last thing i'd like to cover briefly is this question  of these horrible discussions that are going on and supposedly we have a finding the law that says but the juror said it didn't bother him and do we have to accept that and several of the cases say jeffries is one of them no and here's one of the reasons why there could be as very significant impact to two jury hilliary by hearing all of this that he's not even aware of and he may be doing his best in