and i think we're ready to begin we'll start today with brian versus stephen and let me just check with counsel mr ross are you there can you hear me court held the state adjudication was an unreasonable application of supreme court precedent and an unreasonable determination of the facts and the disk report was wrong well mr ross the p c r court found that quote indicate that she missed material but in fact the juror herself testified that she had trouble hearing and missed some of the material so how is that not an  all that defines what a competent juror is and quite frankly there is no wall or standard from the supreme court identifying what is a competent juror and what is not a competent your what disability one are you saying that if someone can't hear the testimony fully they are still competent to dump it as a juror without accommodation i mean it maybe there's a reasonable accommodation but as i understand it this  year refused to wear a hearing aid or was quite defensive about her hearing according to the testimony of her husband and perhaps that's the reason she was sometimes reluctant to admit that she couldn't hear although she did ultimately admit perspective a quantitative perspective we look at the amount of testimony but the jury her look at whether or not the testimony missed was material fit based on what based on what she says over and over again and she says she then how how how does she know what she can and cannot hear if she can't hear she can't tell you what she didn't hear because she didn't hear it but looking at the objective record the trial judge repeatedly had concerns with the jurors hearing the solicitor the state even had concerns with the jurors hearing and wanted her removed and then the husband also testified of course that she had a problem hearing so i thought i don't know how we're supposed to take her word for it that she could hear everything she doesn't know  heard or i know we're not just ahead we're not taking her word for the amount of testimony she heard where the notch in the city at the end of the day there was consensus by all the members in th judge believes she was qualified state believe she was qualified to defense attorneys believe she was qualified and most of the fans attorney testified at the p c r hearing that she never that you're never should have been on the jury right he justified in hindsight and that's another error that this report made is in reviewing trial counsel's performance we don't judge that in hindsight and that trial counsel's testimony is riddle with an assessment in hindsight he says when i read the transcript i didn't realize how what matters is at the time whether or not that trial counsel with this particular person was qualified and the juror statement that maybe i missed something she's also saying she heard everything as well the burden is on mr bryant to show who won what she missed we can't read in english blah blah blah and it's written in english so if i can't read english tales that sign any good to me and it that sort of mind we have this if she can't hear she can't tell you why she can't hear so i don't bryant could have put her on the stand and asked what do you recall in mitigation what he will recall in aggravation give us your recollection of the facts of this case and then compare that to what not actually overbuild in the transcript so a showing this record order was material and that that raises the issue of going back to what is the standard that the supreme court has given us there really is not a standard in place  best precedent we have on this issue comes from jordan versus massachusetts an aversive the united states they both recognize that you have a right to a physically mentally competent jury but again the supreme court has never defined exactly how we figure out whether this particular juror's qualifies so so you so so if i understand you correctly you're not saying that she did not have any difficulty in hearing that's not you it's not your position is it your honor if it's clear from reading these things to her when she had an impairment and number two she's not now we're so so from that perspective my point is do we need to come to a conclusion like that to hold for you that that she didn't have any difficulty but i think simply having a hearing impairment standing alone is not going to disqualify someone from service that's why the devil is always in the details you've got to afternoon or during a period of time as they are you aware of any court that is a stab or some kind of standard how long you can sleep before you have to be disqualified in other words this is a little bit along the same lines as you're talking about what evidence was missed or not and and you and you have agreed that or you've suggested that the test what might be material evidence i'm wondering whether there is any suggestion as to how much time or what percentage or what degree of juror can miss before that juror becomes incompetent because i think most of the cases have allowed not allowed but overcome a certain level of sleeping during during a trial without disqualification and i'm just wondering is there some standard or something we should be looking at in terms of time period or preoccupation with with sleep or with not hearing as i understand the case law here are the various courts have looked percent seventy percent are they missing something that's critical to the issues at hand or are they missing something that's jim with so as i understand there's a whole there's a host of case law dealing with sleeping jurors and orts of addresses in  various ways which would simply reinforce the reasonableness of the piece your court in this case because there is no firm standard in place and when you don't have a firm standard ports have a lot more it's a difficult call because this record is somewhat speckled i mean every time the trial judge asked woman whether she was hearing that she would say yes i heard that i heard on the other hand i think she gave the juror three tests at least three and she passed two and failed one and so i don't know where that leaves us either it's in the same never never land between the two posts you were talking about are or in the case of sleeping jurors between the length of sleep and the amount of material messed one thing is clear from the needed to read lips to the judge and one point she's asked were churches and she gives a description of where to get to a church so she's not answering just yes or no questions we also know that the lawyers are making trial attorneys basically picks up the odium and moves that so that he can be within iran so the jury can actually see his lips and read its lows you mentioned one specific instance where at the culminating moment where the trial judge is assessing this juror's qualifications the issue about the weave a blue dress from experience when a judge looks you in the eyes and asked you a question sometimes you can see the judges lips moving and you know the judge is talking to you but you're not listening to what's coming out of her mouth you're thinking of something else looked like she clearly passed one or two she was hearing something there's no question but we had a blue dress she did say d i didn't hear that and us so question whether she wasn't paying attention or she didn't podium around and face directly toward her underscore the argument that she was mit could have been missing as she a think indicated part of the testimony if somebody did not have the podium turned around directly at that sort of cuts both ways for you that particular incident occurred at the beginning of the guilt or innocence so it appears that they had begun making am thank you thank you i'm having trouble because you're breaking up i don't know if there's something we can do  can you hear me now i can hear you but it's jerky movement and jerky sound that's going to be with recognize that but what about the fact that everyone involved alternately concluded that including the the solicitor or the defense attorney the judge concluded that she should remain on the jury given the deferential standard the fact that he not we're here and not only a direct appeal and you will know better than i will ever know the deferential level of review to give these matters here so there's a fundamental question here that we've oh i mean we can keep saying she couldn't hear it isn't here to move to podium things like that but that's not really the issue that we deal with in a hay vs capital appeal it's a very very high burden that we have here to to to deal with from your perspectives address it specifically there because we may i don't want you to spin your time talking about the hearing problem in sounding like it  going somewhere pointed in of the day that's the issue we're going to address and we're going to have to address it knowing just how limited we are as of federal court and looking back at that that a jury has to hear all the evidence we had a case the johnson case think a jury missed the whole opening statement and we said it was all right so or is this all that all of the you heard me speak to mr ross about that and it was a clarification what did you mean what are you reading that to say when you said miss material that they're talking to the now like everything as opposed to  isn't it burton really own you and you didn't present any type of doctor's testimony and don't we have to defer to the trial court so apparent conclusion that she could still serve given that you know if you want to challenge that it would seems like to me you might would have brought in a doctor or so one to present some testimony to be yun concluded her statement that well it someone who can tell you that someone with this kind of a disability would not be able to do that i mean doesn't it seem reasonable that that that you would at least have to bring in something of that been it's a pretty powerful thing to bring in you know a doctor who knows about hearing this is a person with this we know i know this from a she would not be able to hear from that this is a unit that i'm a suit would it would compel a result but it would the juror was not able to hear all of the evidence that was presented to the bird it cannot possibly be that evidence that was prevented in this trial for those is a violation of mr bryant fair removal it would have likely been placed with an alternate that he didn't like so if he had pressed the issue if he had actually asked to have that letter one of them been admit women have been a myth trial rather than a replacement certainly not entirely clear how the trial or would have ruled the solicitor when he made his objection he asked to give it your you know so that it gets you capable alternates here why not just use one of them so it's completely speculative to assume that the trial court would have gone the mistrial route as opposed to replacing a juror with an alternate and if you're sitting in trial counsel shoes at that time  very likely that that trial attorney is making that decision in the heat of the moment is going to make the call that i want to stick with this juror who i think is better for my case as opposed to  is your court specifically said he acted reasonably based on his assessment of the alternate juror so i'm implicit in that finding is he's your own during the piece juror that was sitting miss jones the one the alleged hearing impairment and in relation to what would happen next so the in addressing the alternate juror and that is your court was addressing those other issues implicitly it's implicitly finding that it was russell i find it difficult to think that a mistrial would be a possibility unless the evidence corrupted the jury or there was something that got the jury on the wrong track if a driver gets sick or dies you just put on an alternate and if a jury can't hear i would assume that's the same thing that's correct and there's there's some state precedent to that effect state v are d court appointed and i want to recognize that fact we don't i don't know how big our audience is but everybody should know that that's an important service and we depend on it and i appreciate very much at you know at this point