charles currie for mr berlusconi to please the court i think you can summarize the reasonableness and reasonableness of this case in one sentence one sentence and that's when the judge the trial judge at the end of the interview a juror a one hundred said to her i wish i had known about this yesterday and then proceeded to do nothing he had three alternates with just been sworn in in that jury the day before the trial had not started the witnesses the trial lawyer i wasn't you know young or i was in the trial or i'm appointed by by the court he proceeded and the district court and you you a trial lawyer and i've tried cases that's the first thing you think about and i've tried this fact situation out to try to save two minutes i've tried this fact situation around other attorneys they all say what happened the alternative they had by  truck with their no alternate what's going on i mean it's so obvious well i think under noble review you'd have a better argument on this record but we're here on hevia srini so there has to be an unreasonable application of clearly established federal law as articulated by the supreme court what's your best theory as to the unreasonable application of clearly established five words with my best supreme court of united states case it's an old case to a good case to me versus ohio we're talking about structural error here in other words when you that was a biased judge he was the mayor of a small city and he he only got paid when he found people guilty little bit of a problem a bias judge jurors are judges ok that's to me versus ohio that is my case that is clearly established federal law that you that you it is structural error to have a biased judge slanty your factual determination that she could be fair and it was based that was unreasonably unreasonable factual determination because of the process through the whole colloquy oh the whole colloquy i read it and i put it in my brief ok remember the prosecutor comes out and the first thing he says well right now if you had to go to the jury room how would you find it stages you know everything was guilt well wait a minute don't you need to let me first read the comic i found it troubling like you did and i couldn't quite figure out what was going on here and then it caught my eye that this all occurred after opening statements correct both sides they had opening statement opening through eight minutes in defense counsel when he gives his opening statement he says  jury you know it was wrong when he did it was illegal what he did he just didn't engage in force it was voluntary sex with these young girls he committed a crime but not the crimes that are charged something and then they spoke out and that's what he that was his you know his you're going to hear him to bring an expert on and all this stuff i mean he laid out what his case was going to be right and that's at the end of the day after they select a jury right that's right and the next day the next morning the juror during one twelve comes in and says hey i got a chair some information with the court use me we had something i have a problem a problem with this teacher i know teenagers i have children her child was in the same class as her colleague who taught and molested other kids she is never ever ever going to forget that your honor i'm sorry never never never i'm a parent any parent the minute they found out that their child and she was more than a parent she was a teacher that's a huge question she makes that's the madonna case i cited and i started them all i cited the supreme court case that's the civil case to make any difference the extreme court said we have to have good for a diary or jurors get seated who don't get shouldn't be seated and then there's a criminal case on page fourteen in my briefs the result is case where it says how important more dire is to get an unbiased jury that well but that's the heart of the question in this case what they're biased are seated in this case and you know sitting here at the court of appeals very difficult to review a cold record really that and i'll judge that's looking at the charter you know she was pulled back and forth there's no question about it and some of her answers in isolation  would seem very very troubling that would indicate i have some sort of buy it up the trial judge to explore that and figure it out so when the trial judge says i'm not going to excuse or i think it's not an easy situation but i really don't think it's that close of a car either this juror struck me as very sincere and it seems to me on the whole indicate that she could follow the court's instructions what are we going to do with that because we're going to have a chance to assess that turn by looking at her  what you're going to do with it is ask the same question that all my practitioners of asked me the process was faulty and unreasonable we have process we have alternate jurors just for this why how could it possibly be reasonable for that judge not when it's when it's when these facts are so there's they're so pointing towards baez giving the doubt to the defendant and saying thank you i know you're sincere and he did say i sure wish i could have found out yesterday what does that mean it means that she wouldn't have been on the jury if the sound offense or that was he said i don't want to run my jury i want you to issue  and i he must have felt two feet tall how did this person escape while she escaped by being quiet i'm sorry and she knew once again reasonability is that's not a forgery i think he was in shock i really do i think it was in shock that that jury that your state on the jury he was in shock because he said oh my god a lawyer is worst nightmare i've got a biased juror and i can't do anything about it and that's unreasonable don't you know this this let's look ok you know you want me to keep turning my hearing aids off and i'm also not leaving any time you mistake may it please the court california deputy attorney general kimberly donahue on behalf of respondent of holly the district court's denial of the hey b s petition in this case was proper and this court should affirm that there was no unreasonable application of clearly established federal law by the state courts and the trial court cannot make any unreasonable determination of fact in this case about whether or not juror number one twelve was biased petitioner has failed to meet his burden of establishing that bias of juror number one twelve either  and why the defense of jury didn't suggest that that's another mystery but it's such a simple thing to do end you're right although i don't think that what the juror articulated in this particular case amounted to what would be grounds for a challenge for cause it may have been grounds for the defense attorney had been disclosed during the primary was grounds for us so i think what the trial court essentially was discussing when he discussed that you know he wished he had learned of this information during voir dire is that it may have been a challenge that could have been grounds for a peremptory challenge that the that the his me that the defense attorney could have used and i think we know that because there was a second juror that was actually interviewed mark that the six they actually spoke with after speaking with her once well and in that exchange at the end of that exchange the court said again i wish that i had known this because i think it could be grounds for a peremptory challenge but the court it seems was clearly stating that it did not believe that what she had disclosed was grounds for cause and when you look at what she was talking about your honor mentioned that her daughter had been honour's disagreement with that also makes sense sir you can talk to somebody else i think you know it when you take everything in its entirety and i understand your concern and i think there were as the court has pointed honor ultimately in this case though the juror did come once it was explained to her that she could only rely on the evidence as it was presented at the trial and that she would have to follow the law as instructed by the court she indicated that she would be able to do that and the court crediting her as being a believable as being believable and what she was talking about believable in the sense that she did not believe or she did not recall this that incident during voir dire and as the district court court pointed out during voir dire the questions were specifically with respect to family members or close friends or the jurors themselves being involved in crimes that  similar to those that were charged here and none of none of those categories meet what this juror was describing in this event it was an event that happened by a former colleague of hers after her daughter was no longer a student of that of that colle e and when she describes whether or not it was a significant event in her life but this the defense counsel actually asked her that she says no not not in my life and she specifically started referencing her former colleagues saying they felt betrayed and they thought it may have been significant but she no longer work with those individuals the daughter was no longer a student of this individual and in that sense the trial court credited her as as not having remembered it the day before and as the district court also pointed out the juror coming forward with this the very next morning after of wazir after opening statements for any evidence is inconsistent with any sort of  don't think i would be able to vote you yes she did make those statements your honor the court did however then clarified to her that whether or not somebody turns himself and that in your have and i think that that again courts have held that this level of perfection is not something that our judicial system requires for jurors jurors do come into a courtroom with their past experiences and in this case this juror did say that she could follow the court instructions including the instruction that whether or not he turned himself in is not evidence so ultimately the fact that she when it was explained to her what she could and could not consider in rendering a verdict which is the evidence presented at trial and the arche the judge's instructions as to the law she so if she said that she could absolutely follow those those instructions and that she would rely only on the evidence and while against those statements and isolation are troublesome i think all the courts have recognize he was sentenced to one hundred twenty three years to life and state prison mother was one hundred twenty three years to life a life hundred twenty three years to a yes or so this all occurred after the opening statements it did your honor yes and so as as as was pointed out previously the juror was basing a lot of her answers to would you vote guilty or not guilty based on that opening statements the themes that were presented by counsel there and then but then ultimately when i was explaining to my i mean i found  juror is not expected to understand at that moment given that hypothetical that opening statements are not evidence and that she cannot rely on the little girl and the judge allowed that question by stupid well if you know i think what the judge did afterwards is actually been explained i believe the prosecutor was the one who asked that question when the judge then that's why we're here today and the judge didn't clarify that the only thing that the juror could consider when rendering a verdict was the evidence that was was actually presented at trial once the juror understood that and again that's a distinction that we don't hold our jurors to understand absent we even missile crisis one hundred sixty two i was in south china sea but i went i got to tell you the story because the distillers broke and we only had enough water for the batteries so no one could shave no one got haircuts and then another submarine said we want mr curry he's supposed to be on our submarine the the midway sent a helicopter to pick me up and they took me in this state with a huge afro and my sitting on top of it a big beard to the to the midway drop me on the flight deck to transfer me by to ybor cooney marine air base over you know where you must clear is the japan it's in japan and that's where my of marine was i was there when they took me out of the brig i didn't i had i was the marines were shocked and they said who is this with this afro and smell so bad because diesel submarine sailors smell awful especially when there's no water and you're submerge for days and days and it was the colonel tracked me down because for some reason there was something in me that you see now that liked i mean the judge asked what its defense counsel's right there was no force he said i don't care he's still guilty he would i mean that's in the colloquy what if defense counsel is right and it was proven there was no force she said even quote even if it was no force i wouldn't be able to vote not guilty and it's because he had a health teacher tell her that in his position of trust in this position of trust as a teacher he was a teacher this person is a teacher in a karate teacher you can't it would do but that was not a defense he'd still be guilty she couldn't get rid of that even if the opening statement issued but we was proven the defense counsel was right so that answers your point thank you so much matters to me thank you very much counsel