concludes you'll feel that you had a chance to communicate your concerns and we had a chance or special concerns and both of you had a chance for the rest of the questions that we have i really feel pretty confident that this format we're not  sure may please the court my name is going to suffer a land and i'm here on behalf of ronald william your honor while mr william th amendment right to trial by an impartial jury was violated and a writ of habeas corpus and should be granted under the more stringent objective on the task i'd like to start today by addressing the questions in the court's mail evan  i hear some deep should i wait yet not i'm not sure what that means are likely laws are slowing ok this case has always involved actual bias on the part of the jurors because the facts that were developed the past two relief under the even under the objective honesty test necessarily involved an initial showing by mr williams about actual racial bias in order to demonstrate that the jurors  that and the question that she was answering was whether or not a white woman could ever consent to have sex with a black male and she said of course not and she was absolutely trying to sort of distress huge concern to the whole i don't object of bias seems to really the commonwealth and the district court could have tried to you analyze this case as one of unconscious bias even though it really doesn't fit given the evidence that there would be unconscious bias but i accept your honour's kind of assessment of the evidence the science on this is all over the place but neither the commonwealth nor the district court ever looked at this as possibly a situation involving unconscious bias simply did not argue that correct you've always accepted the subjective biased framing as far as i can tell from the papers well i i never argued anything about unconscious bias to this court in the district court i said that i was not conceding that it was a subject of honesty test but i believe that i could meet that more stringent standard  intentionally incorrect answer take that standard and apply it to this case the district court found that there was not an intentionally incorrect answer if you want to put it in the parlance of mcdon h but in this case the issue in this case also camp unfairly characterized as an honest mistake and they the cases that this court has addressed in the past substantially differ on their facts and the potential outcome of the application of the subjective standard and i would suggest that this court is not bound by those decisions involv substantially different factual matters to rule in this case that a juror could in fact actually buy it but that nevertheless the th amendment wasn't violated m mistaken i'm sorry when i look at your reply brief your heading number one of what you how you brief this argument is ronald william proved several jurors a lot when i re means it's not an honest mistake and that's how you briefed it and i understand you have an invitation vicki to talk more broadly but all of the briefing and all that the good the state has been put on  notice to be briefing here had been about whether they were lying or not and so maybe we can focus on the issue is your brief which is can you set a speed that's the burden and let's set aside whether that's the burden judge to give raising a different possibility but if we get bus preservation and that's the burden can you satisfy the burden of showing people ought absolutely i mean there i mean the evidence that was presented and i'll give you just one example from even not narrowly at the evidence in this case it demonstrates that the jurors here they understood what they were saying and the import of their comments when they used the racial slur they knew honestly answer the questions posed to them how are we on clearly erroneous review supposed to disregard the district court much better opportunity to observe and evaluate the witness a couple of things are on there the finding that you just referenced was based on another finding that the jurors had testified that they honestly answered the questions on why dear and if you look at the record the record devoid of evidence that the jurors actually said that the city ary finding that you referenced the critical finding that they were being subjectively honest is built on a house of cards it's built on a flawed finding that when you look at the evidence in the record is not supported not one of these jurors that they honestly answered the question that was posed to them when it was posed to them finding about the credibility of the jurors the word credibility is never used it doesn't reference the jurors demeanors their inflection it doesn't reference the totality of their testimony including in this case their prior testimony at a prior hearing where they were found to have not been credible in testifying about their services jurors in the case and the findings here i understand how you would call them credibility findings but there's nothing in the district court's opinion that indicates that he actually credited the jerk for the reasons that underpin the strong exclusion of the entire rest and that's what would happen in this case if this court on review were to find that those findings that the district court's findings were not clearly erroneous in the st instance the predicate finding is not doubt that in reaching its decision the district court had to confront the question of whether the jurors were actually biased could not have found that they were honestly mistaken had it not also found or rejected that they were actually biased and that's part of the reason why the honestly mistaken test doesn't fit here and why argued that if applying the subjective honesty test would allow the court to affirm a conviction when the jers are actually biased but believe that they want that's a standard that has to be set aside and looking at hodge and other cases of this court there is nothing in those cases that stands in the way of this court saying this case is factual subjectively incorrect answer which is which is quite a high standard when people saying oh i i was hurt in an accident i didn't know him in the dog and hog and richard does not enough but there's a sniff on the cases which is a separate line of cases that goes directly to the bias issue you're suggesting that if we don't allow or cover in the mcdonogh there will never be recovered you know a possible defendant would prevail but smith would get at that issue more directly if it had been preserved so maybe that's a segue to i see that your client's earlier counsel argued this in the nd p c r a petition in the state court but i don't see anything claim i don't your honor i don't think that i can point you to anything where the smiths claim as a distinct claim was preserved i think my argument is that the issue actual bias was before the district court and if you have to concern about whether or not that case that that issue was properly before this court a real man to the district court for about i don't know why yes i mean and i mean i would obviously ask the court that if it were going to remain either for further fact finding or for a consideration of  actual bias of these jurors under the smith framework that there be some time limit on the the time permitted for that because as you say judge mckee it was actually five years that it reasonable exception are met in this case i can take you through them one at a time if you would like them i think that the most outstanding factors with respect to the trustworthiness of the statement are the credibility of miss montgomery actually she was credited by the pennsylvania supreme court over the statements of the jurors in this case in vacating the civilian death sentence but also the fact that the commonwealth has had the opportunity had the opportunity to speak with and or examine this month grammarian the only reason you know that didn't happen was because the testimony was been barred under rules six  evidence and have been by this court in the past in granting hadiths release but the district court itself did not find that the statements were either admissible or inadmissible under the he relevant to the admissibility of the evidence the question is whether at the time of the evidentiary hearing which was in two thousand and twelve and when the case was decided after briefing on penny rodriguez whether or not federal rule of evidence six b would allow it under the standard the supreme court and now and so the issue is the prior issue is whether the state will success be barred the testimony back in nineteen you're testing my memory now i think one thousand nine hundred and eighty eight it may have been or eighty nine but the question in this case is whether at the time of the eviden hearing and the time of the district court decision whether the rules of evidence as interpreted under pena rodriguez would allow admission of that statement thank you does not answer your question court that this matter has been framed throughout the litigation as a mcdonough claim and i think that implicit in that is the assertion that the credibility of the jurors is to be viewed under the subjective analysis and i would submit in light of nd circumstances this case there is no other form of analysis that would be workable or tenable in that you are trying to decipher the internal thought process and mental attitude for lack of a better term of criminal case requires a jury to do exactly that you'd be using the hard basically to turn the intent of the person on trial so i'm not that influenced by an argument that was not can't go back and fathom what  has a record of using racial slurs and then the knife that that would seem to suggest in his expert testimony here to substantiate that that in fact the person was subjectively lying when they suggested that i said that they really did  also be consistent with a lack of prejudice rather than concealment of prejudice that actually existed i think that's my that's my question because they didn't show it because they said what if one witness denied making the statements and later workable alternative in fact water is kind of viewed as sort of the st line of defense to prevent situations like this from occurring so at least the process is given some value by supreme court and you know all the courts would would the defendant have relief in that case it would be very much of a different analysis and i think his case would be much stronger because and again that's what i tried to emphasize in my brief was looking at precisely the questions they were asked and had they been asked a question and had they been dishonest certainly it's different calculus so you know more than willing to concede to the court's question but i think that doing my dear or after the trial breathtaking you said it's very troubling other than the fact it would undermine your argument what is the difference between breathtaking and very troubling practically speaking i don't know that there's a tremendous amount of difference between those two terms counselor penya rodriguez involve the use of the statement at the trial in regard to the defendant's conduct with the way i read appendix one  three is none of the nine living jurors heard racial slurs being used during the trial or in relation that we're talking here about some testimony about statements that they made before or after the trial and  so that different i think that it is your honor and thank you for pointing that out again and that's one of the points i've been trying to make throughout these proceedings that you run the risk when you're looking to conduct or statements that are so far that would not so basically do violence the system in terms of trying to perfect it because it is again a question of drawing a line in that are we prepared to find be very much your honor and again try to come up with a workable solution here i think is where sort of the issue lies and i think that both opinion rodriguez court and the other courts have looked at this  recognize that as an issue and simply put i just don't know that mr williams has made out what he needs to show under the optical law ok thank you my