boils down to whether this appearance of impropriety is the per se reversible there are many potential problems that could arise what i want to focus on here is they actually could have on the other j to appeal this court said quote on this record we decline to address whether jury service by a trial judge a spouse in a case in which one that judge presides and to defend it has not acquiesced in that service m so that we know why mr canal did not use a peremptory that he made a mistake of law so based on the record now before this court after the evidentiary hearing this court should decide whether was the mistake of your the mistake of law he made was misunderstanding the waiver was to challenge in a motion to strike because and also he renewed a trial motion at the evidentiary hearing he said that he did not understand it was a point the way our argument is that this case boils down to whether prejudice should be presumed because of the appearance of impropriety by motion for cause he did have her memories like that time is this where you know that this court said they found direct appeal that he had acquiesced affirmatively acquiesced to the church service and so now we know that it was not an affirmative strategic decision on his part he did that because he made a mistake of law and did not understand that it was going to be way we did not understand by not using a jury not being our countries that you may correct or yes furthermore there's also th on the jury deliberation room is is a sacred place that we protect and we can't know what goes on in there it's possible that the laypeople non trained jurors in there who treat the husband if him under the influence with his connection to the judge this case why or treat him kind of like an agent of the judge especially in an overnight trial that lasted several days hypothetically if the jurors had admitted they gave him undue influence it's highly unlikely that this could have been corrected jerzy cannot be impeached and the reason we do that is because we separate the power of the juror is a trier back from the judge and so this is a situation that comes with a high risk of impropriety actually happening and addition there's a very low chance because of the sacredness of the jury room that if something wrong did happen that it's going to be revealed to be very hard to detect and that's why as a matter of law this court should hold that it's her say reversible error when the trial judge allows her spouse to serve on the jury other situations would be the husband could look down favorably upon defense counsel when they're arguing heated emotions the husband may feel that he needs to rule and in such her render a verdict in such a way that would please his spouse is the judge and the judge is also put in a situation where potentially she could have to investigate misconduct of her own husband it also poses because defense counsel of has to worry about all the things that are going on a trial now he also has to worry about stepping on the toes reasonably be questioned these this situation on its face raises questions of ethical concerns in the mind of a reasonable person and the ordinary person in the public further can in three also describe situations where a judge show this fall by herself when her spouse is involved in the case for example when her spouse is a party in a lawsuit when her spouse is a lawyer or a witness and of course this list is not exhaustive and i think those situations party lawyer witness would be analogous to a trier of fact also the public has an interest at large and that's what the two out of state cases that have addressed this issue have said in part is that the public has an interest and to the appearance of a fair trial the issue here is the impartiality or impartiality of the vehicle to send somebody to prison the public has an interest that and the due process claim judge's husband's presence on the jury the printer was not a put convicted of attempted murder right and that's why this case was down to is this a purse a reversible error because if it is we're asking the pressures would be presumed and in the event this court but also the in effect of this claim the per se or personal question is relevant there and that's because in that question isn't bad it should prejudice be presumed actual prejudice can't be shown in this case because and if his counsel was responsible for a buys jerk being on the jury and that would be deficient performance and it would also have prejudice it because he was convicted before bi so that would be that is why the per se reversal question is relevant to this strictly  also just to last point out here the fear is that impropriety is also great because the judge denied a motion to strike for causing her own husband she was essentially put in the position of saying whether or not her husband could be an impartial trial or fact and that's just the situation as a matter of law the judicial system should avoid here we have new facts from the evidentiary hearing which makes this addressing this question of per se duty in answer to that question your honor and i think i've set forth my brief quotes from the defense and quotes from this court about the overwhelming state of evidence court already knows that an imaginary cube around the heart there were several stab wounds there so if this case were remanded for a new trial i think nothing would stop the state's attorney from charging several which is i think something that no one has addressed and but i look at this a little bit differently at the third stage it's their duty to make a substantial showing that all they really did mr case and i think this i'm sorry mr mason was the lawyer for defendant they called two lawyers mr case and mr cooper or who had not been present in any proceeding in the case who had never talked to mr canal if i'm pronouncing that right the defense lawyer who never read any transcript basically what these two lawyers said was you know i personally made a challenge for cause it was the night i would use of record that's all they said who are talked communication going on between the judge and her spouse thanks don tics and twitches and whatnot my point is this testimony was pretty poor mr mason did a pretty poor job that's wrong i'm sorry that's judge bach is somehow pro prosecution had and there's cases i think out there there's an open warfare between this judge and the state's attorney's office for ten years and still going on so the idea that she's pro prosecution telepathically communicated this to her husband through twitches and kicks and stuff i think is ridiculous she could really he could just as well be the other if i will my point is if this third stage it was their duty to make a not a good idea here's a things that can go wrong but in this particular case they did not go over i think the message is out my pleas to court were not insinuating that the judge was pro prosecution pro prosecution in any sort of way this is the appearance of impropriety itself also did anything counter point out that nothing went wrong in this situation but that's kind of the point this situation it would be so hard to find out if something did go wrong it be so hard to even know that or prove correct it but the risk of something going wrong is really really high in this situation for all the reasons that i had stated in my brief in the opening part of this court should address this issue but what can you write does it make any difference can you but he made a mistake or war it was a strategic decision he knew that they just decided they were good he didn't make a decision as he was operating in a misunderstanding of the way know how does that matter what race but does that matter because this how does that make something that would be so fundamentally unfair or just a big automatic reversal were not reversed or difference somehow it's not even known if he would have been allowed to use a peremptory especially based on the fact a judge the judge denied a motion for causing her own husband also if she was not on the jury if the husband was not on the right correct then makes no difference whether it was objected to or not i understand the reasons for not a perfect order not it is an accurate right and this course stop just short of addressing that question is very