to share a couple of things st i think you're all familiar with our timing system and well we don't have our light because we're doing this by phone the timing still applies so the courtroom deputy does get it will alert to when you have two minutes left of your speaking time and when your time has concluded we ask that you please stick to the time limit if we have any questions for you that take you over the time limit then of course yes or those questions because we're below abused its discretion by not applying this tough standards by removing a juror although there was a possibility that the court acknowledged that she could proceed with deliberations and by removing the juror for a legally  one of the reasons is if the two are legally irrelevant reason and the courts the district court own words show that it did just that it said i'm convinced she cannot go on with jury service and if she stays in the jury room we will at best hav about is trying to avoid dismissing a juror because they're dissenting and if we're dismissing a juror because they're deadlocked because we're afraid of a deadlock and we're dismissing it ascending sure mr martinez has a right to a unanimous so considering that the juror on several separate occasions told the court that she can't make a decision that's a can't come to a verdict on the two can't judge these kinds of things  what else do you think that the court should have done to rehabilitate this juror well it may be that the court i mean i understand it's a very tough problem that the court had and the court has to tread lightly we don't want to get into why sometimes that the jurors voting feels the way they do but i think with able in some of these other cases what that what that the value judgment is it's better to leave it potentially problematic juror on the jury than it is to either invade into a jury deliberate secrecy of deliberations or dismiss it juror who who might be feeling the way they do based on a sincere assessment of the evidence me that we would invoke the presumption of regularity and presume that he knew what the standard was the standard was clear a bell had been out quite a while  that rises to the level of clear respond first as i think that the district courts all words rebut that presumption of regularity because it said even while it was saying i believe and convince you cannot go to jury service it was a fifty one the quiet is notice of the act other than that a party wants to court to take as to the the clearly erroneous standard i think that that has to take account of the standard of proof but because it didn't make that finding we don't know what the district court would have done under the under the correct standard the council this is robert luskin oscar the magic words were and said there in fact an oscar we said that there was no need for there to be any magic words and yet he still gave that deferential standard overview but isn't isn't the explanation the judge anderson gave that she thought she couldn't go on and that would result in applying a standard there was a very a much better developed record and the court was weighing the credibility of what other juror said and able to exclude a substantial possibility based on a much better some better showing that some other influences come to play i don't think that the juror self assessment that she couldn't go on should be dispositive you know i would compare it to h and made a self assessment of what the juror did just report believing what the jury said how is that not entitled to the weight that we would give if we were reviewing any finding the fact that any fact finder found when we're hearing live testimony v statement in the context of this entire conversation the transcript strongly supports that t v was having any clear melt down once the weight of the jury service me because as counsel for mr martin has pointed out that's exactly the opposite of what we should be considering when we're talking about the dismissal of a jerk and two when you go through the record of what the interaction between the court and the juror she is clearly crying and upset and says she cannot go on but there's not a whole lot of course if you look at it  she basically says that the st time the court says i can understand what you're saying and then she says it another time and then the court gives a longer response in which the court says i'm not going to lightly release you from your service but then immediately says do you think you can go on with this deliberation or not and she says no and then the court releases her without anything further out there saying i'm not going to let you release you from your servant so i think these things are a little bit troubling and i want to give you an opportunity to respond to that thank your honor i'll start by responding to your nd question st in response to that the government yesterday moved to supplement the record from the audio was having that she was out of breath and when she was talking to the judge at the beginning of the conversation her speech was slurred that she was she she could not speak clearly at all and in juror because she wants not in a state where she could call me explain herself and have a logical conversation and judge she's the enormity of jury service clearly dawned upon her that prevented  as opposed to too much question that it had to be careful not to invade the jury the secrecy of jury deliberations and that is that that that i believe sufficient sufficiently exploring the length of the the statement in the context of what occurred in the courtroom and that is that t v was having a complete meltdown that she was not even able to speak clearly to the judge and she what w this is robert look there seems to be i want you to sort of explain to me if i have this right with regard to the hung jury issue there seems to be two ways that the courts look at it way number one is in situations where the court and the parties or the court specifically is made aware that the jury is deadlocked for some reason and then based on that decision removes age or for some pretext will reason like a motion or whatever that that is what courts are saying is problematic and what we were trying to guard against an able on the other hand you have to two asians where jurors for whatever reason are not and cannot deliberate and therefore would cause a  hung jury or some sort of paralysis in the jury in the jury deliberation and are removed for that reason that they are unable to follow the instruction that they are required to deliberate that seems that the st thing that i described  objected to dismissing see that this was a too short of turn to make any sort of decision and this timeframe altogether as well as to be emotional distress that he sh inability to participate in jerusalem aeration because that she could not make good as she said she could not make a decision about somebody else's life and she clearly refused to proceed with a jury  and interested are tissue because it was on the scene and he was it directly observed t v while she described her problem and that that included what does not come through the record which is  extent to which that she was having a meltdown lurker speech was because she was being so hard that in fact she was crying throughout the conversation she was out of breath and she was as difficult as she was having poll error as to the jurors being emotional we don't have any evidence that she was emotional in the jury room when they were deliberating d i don't know that that's a fair inference to say that she the court was referring to the courtroom clear who wouldn't have been in the jury room the court said more that's the courtroom clerk for mr for judge lawson and and i was going to say i think that it can be pretty intimidating talking to the judge in chambers and it could have very well been her emotions just sort of boiled over as she's sort of thanking the judge to let her off the hook we did not hear from other jurors that she was in any way  the the deliberations up to that point and i think sometimes a juror may need to just be pushed to do their job that happens when we give an allen charge a lot of times jury will come back and say we don't think we can come to an agreement where guilty that can't be a reason to a place to replace that your best to the point standard but i would say that i think we satisfy that even if it applies and i don't believe it does i think the issues were