not in the record counsel let me make sure i understand what the argument is about and say understand if you're not arguing that no matter what kind of crazy ideas this  judge was stuck with them once the jury was sworn that was the jury and the judge can take out one it's going to hang it up and put it in an alternate you're not arguing that what you're arguing is that the investigation into the jury into th reviewed the trial court's credibility determination the trial court's decision that juror morgan mrs morgan was telling the truth about what mr marshall had been doing in the jury room the trial i'm sorry the appellate court  reported several facts to support its reliance on the trial court's credibility finding but those facts just don't appear in the record and perhaps before turning to the trial court's credibility findings themselves it was judicial intervention and in the process of deliberation the less interviewing you could do the better and once the judge interviewed the foreman and the jerk that the judge took off and the juror who said that marshall said no i use analogies and i try to make myself clear but i would surely convict if there were evidence to support it and although i i made an analogy to my son excuse me my analogy was only that mr robey the much younger codefendant who knew that mr clark had a gun might have felt himself in a position of fear and so what was the other what might the other jurors  you look at indeed they do give a very strong impression that marshall was playing for an england before this court didn't have any of that information i understand but the point is there was that the trial judge should have done something more something relatively simple to decide whether the defendant was honestly saying that he now believes the judge and the lawyer were part of the conspiracy against him now remember the honor are part of this conspiracy and that this court said the trial judge didn't conduct an adequate investigation before just dismissing this defendant as someone who was trying to fire his lawyer again so it might have turned what's what's important here is the defense asked them to rely upon no well the defense did ask them to realign it but post trial drew i understand what you're saying i understand the post trial now you're saying but they should have  impartial jury under the sixth amendment and this was not relevant at the time that mr martin was excused because it didn't exist so you're saying that this should not have been third by the california judge did not have that information and we can't make that kind of post hoc decision it's the trial of the how the court made other findings of fact purportedly that also are not that are simply not in the record in addition to saying that application of the evidence to determine the facts or you just going on i misstated that formula right there i have just been saying are we just going on that second branch yes and i'm reasonable determination of the facts in light of the record presented to the state court of appeal that is the record that the trial court had so that the state court of appeal could adequately review what the trial court did and the trial you know now why if we're if we're looking at unreasonable determination of fact perfect a more perfect idea of what the truth was i don't i don't get that part and it seems to me that the other jurors are like any but any anybody reporting what was said orally when a whole lot of people were talking about a whole lot of different things you have to expect different people to remember different details of what was said the fact that they recites different details doesn't mean that they're in conflict with each other and the interviews the judge did i don't actually see why he couldn't make a reasonable determination on the basis of those interviews i just that's what i'm missing i guess i think the problem is that we don't know what would have happened we never know what would have happened if there was more information back to you but i think simon is instructive on that point and i realize it's a direct appeal case but i think i'm not writing it for the proposition that it's controlling only for the the the put the notion this that it represents the kind of in forty that a trial judge can do when he's faced with this very very delicate question of how far chewing fire given the privacy and secrecy pretty well known experience california trial judge knows what he's doing been around a long time and he says you know i think i live from one marshal told me earlier on what he was asking the earlier on about aid and abet and from the way he presents to me and from the way she presents me i think she is absolutely on his visa him so i've listened to two witnesses saying the contr is that there is no way to tell whether whether her interpretation of that is based on a fundamental disagreement with him about how he viewed the evidence in light of his understanding of the aiding and abetting instruction now it's true no that's not so the primary made you think that there's no dispute is one on one and she said he express a problem and on the other hand she also said that she said it to everyone in deliberations and yet when le blanc the foreman the one who was eleven and by his own admission frustrated and wrote complained out that you're basing this accusation on and rule of law says well that's it would it be fair to say that the hallway conversation is the critical statement it's before any evidence and he says i'm not going to come back no matter what and what you're saying is room if you spoke consistently with that in the jury room or corroborates that he said that and if he spoke inconsistently with that it tends to rebut that he said that and what you're saying is the judge not that the judge didn't adequately investigate i'd like to reserve the rest of my time special deference it is supposed to be afforded in evaluating juror credibility that the petition should be denied me ask the question  abetted on the robbery then i have to apply that separately and decided to be aided and abetted on the murder and the judge said no no no no no if you find he didn't bet on the robbery school's out he's guilty of murder fact during the session where the court did explain the aiding and abetting in the felony murder instructions and how those instructions intersected with one another during martial three different times three separate times  to state his his his beliefs about what the instruction should need and each time germ arsal was was ordered by the judge the first time he asked whether the aiding and abetting and abetting instructions instructions excuse me can be applied separately and the judge explains if they can't be then asked if they can be applied to both robbery and murder so he restates the same question in a different form finally he gets even a little bit there's pictures pictures of the judge a little bit and he says well you know this instruction says crime in the ending is that it doesn't say robbery or murder even though the latter part of the instructions justifies it it's for robbery and the court you know i just can't convict anyone of certain crimes one of those crimes being murder in say robbery he said murder is a very serious crime because of the evidence that they do a voice that they find that he is guilty of robbery and so they get onto to the murder marshal at this point is thought he can separate those two and he won't have to convict on the murder when he finds out that really no reasonable person would could argue that the victim did die during the course of this robbery realize that he  either it's all or nothing and that's when you have to vote not guilty on the robbery and following that we get the no to the court like to dress for a have made a statement let's just leave during deliberations you know i don't care what the instructions are i'm not going to convict and that's definitely that's most likely the statement that caused the jury to be concerned now i think when the judge inquiry i think the judge is in line to the fact that during deliberations things can get heated and people can say things and just because a person makes a statement doesn't mean they're necessarily will follow through with that rea deliberations where he's clearly saying he's not going to do this also he compares foreign wealth with marshall marshall also mentioned a lot of talk a lot about the ministry he was and he apparently talked a lot about his son so there was really a lot more well what is your position on all of these questionnaires we're speaking of in the days of the jury process all these questionnaires that apparently were put to the trial court half the facts and then the  if we had talked to these other jurors we may have found something else out there would have made the judge change his mind and yet when we have at least some information that's in the record council of churches be forced to disregard this information and they present it after the fact now i should think that the time we focus on is when the judge makes a decision to me that's the relevant time and that's the time to decide was there an error in the california court court should consider it either but i would like to say that fischer's main argument is  is some minimal evidence to show what what they were thinking if it is in the record and to the extent that it's considered all of that i don't think it should be considered i think it has such minimal weight that it does not  anything it does not show that if the judge inquired further he would have changed his mind it doesn't show that the judge's decision was an unreasonable decision about what was said in the jury room in order to prove anything at that rule doesn't seem to have come up in this case so i guess we don't decide anything about it it's just not there for our purposes right it hasn't been we're the only thing i agree your honor but that's not the only thing the appellate court also relied on the trial court inadequate investigation it said that all four jurors corroborated each other which certainly was not the case is that the jury marshal questions on how to interpret that instruction came from mr le blanc mr le blanc was clearly having a big argument with mr marshall in the jury room about how to reconcile the two  guilty and the two prongs to say he's not guilty and that the judge although he made very admirable efforts to clarify this for the jury really wasn't very clear if you look at this sounds like you'd be happiest if california videotaped jury deliberation so that we could then go over them and see if they properly considered the proper matters not at all your honor under the constitution i think it would be very instructive as a private legal you know as a part of my own training certainly now to give us the most complete evidence on the