counting down the great thank you to enter a constitutional principle that manifest itself across numerous dock trial areas of the criminal law is that racism that contaminates the impartial decision making guaranteed by the fdic them and that is categorically unacceptable and when you read the cases that address the vestiges of racism in the criminal justice system you see language that forceful hi minded unequivocal and really oftentimes beautiful and of course that's the area of law i would like the panel to concentrate on the area of law that we're going to discuss this morning  going to talk about this morning specifically starting with twenty two fifty four g two unreasonable determination of fact there are a couple of independent albeit related factual findings made number two that this discussion of mr d f s gang membership played only a fleeting or transitory role in the in the deliberations and the reason that this is  these findings are so critical you know preface my discussion with saying this is that they they went directly to the large holes in the evidence presented by the prosecution because the prosecution was pursuing a theory that mr was involved in this murder this horrendous murder for financial gain for he was getting paid and that was his sole motive for doing it but yet there was no evidence of any payment or any connection indeed between and the fellow who was proven to have arranged all of this mr wu so there was that big gaping hole in the in the prosecution's case that could be filled with a racial stereotype we know was voiced in the jury room which is that asian hoard money they don't trust banks and therefore you would expect that the paper trail through a bank that explained that away and in addition mr wu did not seem on the surface to be the sort of fellow who would be knowing a fellow like mits and yet many years his junior and apparently in different social circles and so a comment is made well the asians are a tightly knit community and so they know each other because of that i'm having trouble with i guess is just great for definitional questions of were raised or racism or race related because you know there are certain social patterns that's permissible evidence and what find is a social pattern like i don't know college boys drink frat boys drank and that seems to me perfectly and most of all at what point is it's attached to a can we talk about the social pattern of attacks to some other kind of group is admissible well and i would add that it's a social pattern based on race or ethnicity that has no empirical support for it other than through a juror's bias is problematic and you know i think there are several cases out there that say exactly that that you jury is not permitted to infer guilt through the use need to bring to the court's attention a case on all fours with the case before the court that we don't have to produce a spotted calf and this general standards in general principles can indeed be applied unreasonably and  so i can see that there is no supreme court case directly on point that is addressed the specific issue and come out in favor but i'm asking the panel to apply the general and the argument is not so much this is not an objection to was presented that somehow the jury engaged in misconduct in the conversation in the jury room that's correct and my our point about that is that the even worse then if the jury was considering erroneous lee admitted evidence because had the evidence been coming in through the jury process through the trial process in the courtroom even though it was there or at least the defense would have then had a would have then had an opportunity to address that challenge and confront it and rebut when the information comes in in this manner there is no opportunity to address the stereotype that asian poured money cultural bias inside the jury room what's the significance of that in connection with the wheeler challenge to the  government excused any more minority jurors than the defense did so what's the what's the nexus between these peremptory challenges and your idea that there might have been some  stereotypes going on in the well i guess i would answer that by saying that the babson line of cases inferences the rules regarding the racially based use of peremptory challenges is one mechanism established to prevent jurors from sitting on a jury that that would decide a case through cultural racial ethnic stereotypes but it's just one means of doing that and it's certainly not full proof as we see all the time and in this particular prejudicial constitutional air but i get them down to minute thirty now so why don't we hear from the other side and then you've got the time reserved thank you very much happens in the jury room to expose fleeting conversations things that in passing to try and overturn jury verdicts there's nothing as this court has suggested there's no u s supreme court precedent that identifies racial stereotyping whether or not racial bias is something that would allow you to penetrate into the jury room this case doesn't involve racial bias and that's precisely what the state court found in its extensive questioning of the jurors when you have juror stereotypes mentioned those stereotypes are not based on analysts that you don't have a bias and as was acknowledged that we have in this case a cultural expert who testified and the only difference between stereotypes and a cultural expert is that one is based on extensive knowledge of community and one is based on ignorance but that ignorance is not something that is going to allow the court penetrate what happens to the jury room and undo a verdict this is particularly true with regard to the mention the gang evidence because every all of the discussions with regard to gang evidence are precluded under six zero six being there is no cultural or stereotyping overlay that would allow the court consider that at all and with regard to the to the juror comments about possible stereotyping asians keeping money you know i'm not sure this is going to be critical to how i view the king east but i have to say i'm not at all sure that the federal rules of evidence should control us in terms of looking at what was  a state court proceeding well i believe that the announcer has already held that six of sixty does apply to this context and the reason it does is first of all the question before this court is how can we how you know how to review what the trial what the state court found but in looking at whether or not the state courts determination was reasonable or unreasonable it's precluded by the federal rules of evidence of as to what it can consider this the body of information before this court is governed by the federal rules of evidence and secondly if this court yeah i'm not sure i agree with them well if this were to find the state courts germination reasonable then it would make its own independent germination and that that stage would also be bound by the federal rules of evidence once you set aside the state court it would submit it makes logical sense because the upshot of setting aside the state judgement would be to conduct an independent review and at that stage six hundred sixty would most certainly apply and so you are left with you should be left with the the state court considered the sevens understated entry rules we now know what we know and i'm not sure the medallist tells us whether we should ignore what we know or whether we should say well we know it because we probably admitted under state law well i  believe so but i also i see what you're saying your honor but i believe that this is a in a federal proceeding you can only consider the evidence that is allowed to come in under the federal rules so even if the state court permitted far more information to come in even though you may say well now we kno what happened in that jury room it can't be considered in terms of evaluating whether or not the state courts terminations is reasonable or unreasonable well as i say i'm not sure makes a difference to how i determine the case because even if i look at the evidence that's in here  convinced that there was a dream is context i think ultimately that's that's where you know we don't need to resolve this court does need to resolve the application of six zero six zero whether or not there should be an exception because as they did in the in the third iteration of fields even accepting all the information as as presented to the trial court in a court there was no racial animus here and nothing that would cultural expert at the trial that's a total red herring because the expert did not say anything about asians hoarding money or agents not trusting banks or any anything along those lines as far as rule six zero six b application i w just point out that there's an exception of course in the rule for extraneous prejudicial information i would say i would contend that stereotypes are just that they're extraneous because they don't come in through the trial process obviously prejudicial information because it's not just i don't like asians it's asians behave in a certain way and that's information that was then relied on to infer or at least on the current record certainly you know so i  really wonder why didn't your client get all of those supplemental juror declarations in the record before the california court of appeal right and i don't have an answer to why they didn't do it i can tell you that our office ma e great efforts to try and locate them they seem to a fallen off the face of the earth but they were quoted in the paperwork submitted by the defendants in the course of the new trial motion proceedings and they were relied upon by the state  had a separate section dedicated to those supplemental declarations and in fact there was some direct quotes from from them so that's what we love we relied on and just just finally of course if it isn't in the record it's not part of the evidence i presented t state court proceeding so how do we reconcile that well what we suggested given this unfortunate state of affairs is to rely on the state appellate courts treatment of those supplemental declarations and we're not contesting that the state appellate court got it wrong in sending out the substance of what those supplemental declarations that and just quickly and finally you know where it will bring it we're bringing an intrinsic challenge right what the jury said they don't reconcile the contradictory evidence they don't take into account anything that favors mr de apps but only cite that the information that supports their results there was an unreasonable fact finding process the second the second submission of declarations were never examined the perhaps most importantly the juror who makes the most troubling allegations was never questioned at all by the trial court and he had already been dismissed from the jury so there was really no reason to worry about contamination or the interaction between the attorneys and less than at least it was an error of law that infected the fact finding because the state court believed that if just one or two or a minority of the jurors were impacted that would not