n hopefully about five minutes i can bullet point three aspects presented to this court by petitioners position in the ruling below from a news source that manslaughter carried only a seven year sentence so defendant would only be serving two more years this was obviously in the aftermath of some discussion about for applying the presumption set forth in ram or to the state trial court in which a juror is not approached by a rd party but offers her opinion about the appropriate punishment after being instructed not case it was not and that was a mistake to say it that way but the court did say the result would be the same ok so ok if we give you that the presumption applies is that i spearmint then was applied in really the leading case here judge holes opinion fifteen years ago in cali endo and just recently sure what i struggle with here is  having been a former trial judge after you finish the trial and you tell them exactly what they should do when you get a note or whatever and find out people are doing what they're exactly not supposed to do of course you're not very happy but i don't really see what the trial judge could have done differently here in terms of questioning determining who would be affected by it who would be affected by it and then you have a completely reconstituted that that the person that sent it removed and then the other  that was bothered by its remit you have a reconstituted jury and everyone else says hey you know we told her not to talk about it we're not going to do that we're going to fall the law why isn't that ok why don't we and the trial judge was in the position to decide whether these people were being honest or not the trial judge could have decided hey i think this is too bad i don't believe that you would be affected or whatever but the trial judge did everything that i would have done fine within the circumstances i think you would have done something else judge tell and i think you would have asked the attorneys to present their position to and allowed them to be heard because then they would have made the record that does not appear in the decision of itself or the court of appeal in reviewing what the trial judge did and it certainly doesn't appear anywhere in the excerpt the record of what the trial judge did he did not question the jurors who perhaps were most significant about what journey five as we pointed out in  have been as many as four were thinking about going a little further down and that of course means the verdict here they were faced with the wrong information the judge never told  court it's been there for years and years all of that would have been considered because the jurors were wrong juror number two's extrinsic evidence was wrong and the germans were  real was in a case like this he had to have least disabuse them of the possibility that they having discussed this and with at least fo jurors possibly of twelve involved at least four was the reference somewhere in the record here and i could give you an e r site of i'm sure you know it it was once a page one dollars more than four that were thinking of going about manslaughter and possibly going lower than the st or nd degree murder that many of the jurors we're talking about doing it can't just what the attorneys would have done would have been too exposed to the judge in deciding what to do with this and one of them would have been to grant a new trial mistrial or a new trial is that it was the jurors were too badly infected with this idea that manslaughter would have been punishable by only two more years and a jury would be out which was wrong  yes that is exactly right because all the judge had to do was have a kind of hearing that involved participation of attorneys with input and to make the arguments that appear nowhere in the lea justices california court of appeal opinion which is why there is an unreasonable application here because none of this is reflected and that is the standard of review this court must apply it's a tough one for consideration of what to do with this case besides just upholding it on the fiction that the judge's questions and the admonition to the jury may have disabuse the jurors of thinking about what they thought and then he he put in the alternate and then he instructed them right to go back yet again ready liberations a new right and he told them if i'm not mistaken who told them they're not to consider well prejudice then is the last step isn't it d is the the step of of applying breast and i for one am happy to to to reasonable doubt standard what is the language that we have and barrel magu for instance beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict well beyond a reasonable doubt is not something that  that a judge's admonition is good enough to cure but assuming that that makes it a close case we still don't know some of the things that we would have known that maybe require an evid ary hearing which is the solution the curry a decision in clarke last year followed we're speculating we don't know that and we can't assume in every there is no rule your honour's that giving the admonition cures the whole lot no the presumption of prejudice being rude but it requires that that a showing be made and it isn't o the one that's created in the in the in the trial court yep yes yes and i am very happy and comfortable and roll lying on this gush ans on places like  six but not others like five and saying don't consider punishment that that ins that well no case the i've ever found fans for that proposition and i believe the rule really goes the other way with cases the toughest good dory and and hall and hostess and judge halls decision and even clarke which had the problem but decided we need more information the solution is not objected believed reasonable for the california court of appeals term in that there was no prejudice from them's conduct the record shows that one point during very lengthy deliberations there was a short discussion about the penalty for manslaughter there's no question that was improper in the constituted misconduct the only issue was whether or not the california court of appeal reasonably determined it was legit ishall and there are numerous reasons why that was reasonable terminations st the discussion lasted no more than five minutes and the jurors themselves put a stop to it they referenced the jury instruction that they weren't supposed to consider penalty can anyone by sherrilyn came up on several days when the for lunch after lunch on friday on monday yes what and i'd like to clarify exactly what happened on those days on the st day wednesday before lunch that's when the discussion took place and the juror said we're not supposed to talk about it and referred to the instruction after lunch or number six came back and said she was the scrub troubled that they even talked about it and the jurors basically again reference to the jury instruction and said we have to put it behind us the following friday journal for six who apparently was very troubled by this whole discussion brought it up again and said i'm troubled this happened the other jurors again basically said you know we're not supposed to consider this we need to put it behind us and then journey six brought it up again the following monday and then that's when it was brought to the tension of the trial court but a reading of the responses from all the jurors shows that it was adjourned number six who was really troubled by the discussions all the other jurors essentially said that it was just a  comment it was just short discussion and they were able to put it behind themselves and move forward and it appeared that they were surprised your number six was having so much difficulty and so eventually the trial court removed juror number six  says that time i mr fisher seemed to indicate they had no impact far and that's that's not that's not true the lawyers were present at the hearing the trial court said that it would ask any questions that the lawyers  had he just didn't want the lawyers to directly question the jurors and after each question the trial court turned to counsel and said do you have any questions and on several occasions the attorneys did and defense counsel proffered several questions for the court to ask the jurors so the comp the concept that that the tourney's were not involved in this questioning was completely wrong they were allowed to present to the court any questions they had and as far as their input once all the questions were jerks were excused after at the hearing the attorneys were allowed to make their arguments about what they thought should be done so there was a full hearing and in a lot of ways this case is very different from a situation where you where after a verdict comes in there some evidence of dermis conduct and then we're left to speculate about what happened in this case it was brought to the attention of the trial court the trial court held a hearing question each juror about it allowed the attorneys to present any questions they had and then made a ruling based on a complete gathering of information and and as such it was pointed out the after the alternate the judge instructed them to start their deliberations anew instructed them not to consider ten only and then they went back and they deliberated for another two days it was in a situation where they were they quickly came to a  it appears that they followed the jurors the court's instructions deliberated for two days and then reached a verdict do you concede that when your magic applies to the facts here i do not applicable across the board to all jury misconduct or even the at the introduction of extensive evidence they may concern rd party contact with jurors which did not happen here we don't even know where this juror got the information it's quite possible she got it from a news story but it but we don't know that there was not going to be no authority that you have any authority that suggests that the presumption set forth in ram or does not apply to a situation where less we're a juror sort of intrinsically engages in some sort of misconduct like here well i think that that's that's the case but i think perhaps that's because it's sometimes it's easier just to dispose of the of the prejudice you so so i think that that is the case but i do want to point out and i think this is very important is that we're guard less of the application  remember the california court of appeal did apply the presumption of prejudice and i'd like to explain that under california law all during misconduct is considered prejudicial and in this particular case the court of appeal  the standard that is applicable to the presumption of prejudice that is whether the since there is a substantial likelihood of jersey bias that test is based on a presumption of prejudice so while the california court of appeal  not explicitly state it was applying a presumption of prejudice it applied the law referring to people versus nestler and set forth that law and that law is based on a presumption of prejudice and that's what was applied in view that there was no prejudice even if you presume prejudice and explain to me exactly how you get there so so the presumption of prejudice was  rebutted for a number of reasons st in this case we had a trial court which held a hearing and question each and every juror about what happened after doing so it took remedial action by dismissing the juror who brought up the issue of penalty and also dismissing the juror who said she was troubled by it all the remaining jurors essentially said the discussion was for us that it was just a comment in passing or something that wouldn't affect them and the specifically asked the jurors are you able to set aside this discussion and reach a verdict without considering the penalty and the jurors who remained said yes in the trial court felt assured that they could do so which is essentially a credibility seem to be aware of the fact that no one man i'm aware the fact that he could just grant a mistrial right there oh he was certainly aware in fact petitioners counsel move for a mistrial and the trial judge denied it  i think there's nothing to suggest in the record that the trial judge was unaware of its power to grant a mistrial if it felt that it was so prejudicial it was necessary  you know the judge took remedial action admonished the crew to new alternate admonish the jury to begin the deliberations a new does that just end it right there i mean can why can't you look at the idea that you're one can look at the nature of the substance of the misconduct and say you know it's just so offensive that we can't we just you know we can't  go along with the idea that it didn't have some prejudicial impact especially here when they were i you know the jury deliberated for a total of eight days that was six days when they got to this point and it was a debate over whether or not the period to be a debate whether it was going to be a murder count a murder conviction or manslaughter conviction so what does a defendant well have to do while person well i would disagree that they were debating about whether it was supposed to be a murder or manslaughter conviction that was just wrong but apparently that was on the table well i think what happened was they were the top the jury was instructed that it might be helpful to them to reach tentative conclusions as to all of the offenses including the lesser offenses before reaching a verdict so the fact that they may have discussed manslaughter doesn't necessarily mean they were leaning towards it heard any jurors were going that way they might have simply been following the instructions you reach offenses even if they are charged right and then there's the jurors how to approach that bakley exactly so and so the fact that they discussed it doesn't necessarily mean that that that they were seriously considering that but i mean you know i mean think of hypothetically let's just say that juror number two had sat in the jury room i know for a fact that this defendant was previously convicted of  assault with a deadly weapon or attempted murder or something like that if i mean judge has was asking you could there be some situations where prejudice could not be  overcome hypothetically i mean a situation like that i would absolutely agree there are circumstances where where there might be such prejudice prejudice from extends again but instead it can't be overcome and in your case judge callahan your hypothetical that would be more prejudicial than in the instant case so i think every case has to be looked at individually and i think it's important to remember in this case that what came out was just her opinion about what might possibly have been the manslaughter sentence for manslaughter and overall it was a very very small portion of lengthy deliberations and most of the jurors the jurors who were not dismissed essentially said they thought it was just made in passing or it was a very short discussion and they were able to put it behind them they were frankly surprised the juror number six had become so distraught by it and it appears that journey six was very emotional during the deliberations at one point she said she cried but the other jurors said that they were able to put it behind them they themselves did not recognize the instruction not to consider and they moved on so while there are definitely some cases where extrinsi urge strongly in reading the best we could do in rebutting that in the appellants reply brief there is that error on pages twenty to twenty nine where it mentions juror number six should errata which i discovered only last night because as juror number five one of the jurors who stayed on the jury i'm wrestling with that along with how to answer these things  disregards the statements of jurors that after one of the jurors said she couldn't sleep at night if it was only two more years now the vast kind of evidence it was not explored by the judge it was not explored by the lawyers questions apparently but it's not up to the lawyers it was not explored by the california court of appeal and the presumption of prejudice that it was one of the jurors who remained on the jury is one of the state does not rebut it and it is extremely important here that this case unlike almost all  still requires that the presumption of prejudice be over overridden by the state and that includes in its application of the breck test at the end of the game if the california can't show and hasn't shown because there isn't enough evidence in the record there wasn't an evidentiary hearing in the district court cannot show beyond a reasonable doubt that the extrinsic evidence didn't affect the outcome that's the test i have no not heard mr ted if addressed that yet and he has not answered the quote court questions which raise that concern if there is a problem then i case may be asked to be has to go that route because judge judge lewis wonderful trial judge holding in of an injury hearing could cure could could could deal with these problems and and come to the answer of things that i haven't heard i haven't heard decided on either side here we just don't know all right thank you thank you mr fisher mr test thank you want to thank you