intention to challenge the hardships we're not challenging the hardships our complaints in our char constitutional challenge lawyers to or cause strikes and just to be clear my understanding is they are also not challenging the factual situation but now they get these these documents right away the questionnaires and review them and said here's here's the twenty that we think you didn't you didn't you know we disagree with you want as a practical matter could could the judge at that clear that dismissed they were never unlike regular jury pool they were never called right to the to the court out so that so what does it mean that they were dismissed like where they actually were given notice that you're no longer in the jury pool they had been informed by the jury clerk arrest the idea was that you were going to come into the courtroom and she was going to sit there with a piece of paper and you were going to sit here with your pieces of paper and you were going to talk about strikes that nobody could see but people nobody could say was that the  justice and that's why the court has repeatedly held it and it is entitled to have that instruction whenever two conditions are met st that it's a correct statement of law and nd that there's some evidence to support it  what the district court ended up basing its ruling on and in doing so the district court abdicated the role of the jury that was a factual question of the jury was entitled to decide not the district court that you don't t to be perfectly candid there's good arguments that the government could have made to a jury in order to argue against the fence and that's what i'm saying the problem is here is that line was drawn where the the court took away the jury's ability to decide that question and that was the only defense the defendants ever intended to present so you took away not just and it's not just an instruction it's  misdemeanor whether we have a jury trial or not that we did not that they charged a class b misdemeanor there is no class b misdemeanor charge in this case but they charge was a knowing violation of a specific regulation and knowing violation what point did it become the government say well we said knowingly but we really don't need to prove nothing after the conclusion of the evidence in the mr meter court trial they argued in closing argument when the district court was questioning whether they had submitted any evidence to support that these crimes were committed knowingly the government took the position for the st time that they didn't in fact approve that but was there any discussion earlier about whether a the misdemeanor charges and then the court in a status conference question whether we were entitled to jury trials on those charges and whether or not they were petty offenses and they start the part is a breach issue there are two rounds  the the language of the government used in charging these misdemeanor offenses is it from a different regulatory section that was authorized through a different statute and so there's just no way to end these line of authority between the statutes related to wildlife refuge is the regulations governing behavior on wildlife or of idiots and it's worth noting that what we're dealing with here is still the criminal law and the potential defendants are in i don't notice else looking i asked earlier you said and i had note of this before but earlier you said that the judge i think you said at the end of said but they but but they but they that they've demonstrated knowing for all of them anyway that those two things don't jive don't make sense to me yeah so that the court conclusions of fact and judgment was reduced in written form i can remember the exact time because sometime after the actual person presentation in court and so the court asked for argument after the presentation of evidence which was while the jury was deliberating on the downy charges and that oral argument is when this exchange occurred later on when the court reduced its findings and conclusions to writing that's basically knowingly but they really didn't what was the problem well you know i think you're have to read one of the other sections out of the charging instrument in order to make sense of this unknown just because as i said it i'm some of the familiar with those but there are aspects of that that i don't have access to so i will begin and we were there five minutes if the court has questions about the sealed matters again they please the court jeffery barrel on behalf of the united states the jury selection process in this case was anything but secretive it was a process that began right the beginning with the judge soliciting the party's input on how to select a jury for a case it was very unusual is the matter that that gener kind of publicity involved a large number of defendants who sought to go to trial very quickly and eventually one of the things that the defense asked for was the some of the jury from the entire state of oregon that is not normally how we some of our jury answering a questionnaire in trial two and the parties were of course familiar that that's what was going to happen in trial one all parties were familiar with that intro to the court expressed concern that there wasn't enough time for the bifurcated process in other words there clerks but she was doing that here because it was a high profile ever said i know of and i'm well again i think it's important to remember this you were not talking about a traditional cause based on bias all of the strikes we're talking about here are jurors saying excuse me from this jury i cannot be on this that didn't seem correct me i guess i thought to be frank i'm not entirely sure that's breaking down into things i think that the clerk could excuse a juror that asked to be excused now wouldn't ordinarily be the case and including i would assume a juror that was asking to be excused for hardship that may be different in this case than the ordinary case is that the questionnaires were given to a juror so jurors had some facts specific information forgive me if we look carefully at what happened in barbaro it doesn't tell us when what the year begins what dell really says is that what happened in that particular case which is that a judge question jurors in the court e who actually knew which case they would be deciding and i think if you look at part although the significant problem we have about all of is that there is a murky record at best as to what happened the opinion notes that it's not even clear who was there clearly the defendant was not there but it's not clear whether the government was present and it doesn't seem to be clear what questions were asked it's just clear that jurors were dismissed based on specific relationships with with bergdahl oh i think ray has a much more useful case for deciding what happened there here clearly were in person questioning their seventeen jurors who were questioned at sidebar after what he has begun and there's one that is actually i'm sorry one jurist question at detail about the case sidebar there are seventeen examples where there's a bench conference where they talk about whether the jurors should be dismissed including for archer bias and because there's no in person questioning in that in those seventeen examples that's not why they are it's a legal determination questionnaire and case specific os essential correct and the reason for that is because the defendant had the knowledge of the questions that were being asked had access to the answers and i would i would i would differ with my colleague the record suggest that the all the questionnaires they weren't handed to us in other words the court didn't distribute the four hundred and thirty that were dismissed but they were in the clerk's office an available party post they had asked for don't we know that where they already notified their dismissal we the record is not there's nothing in the record about whether they were notified i will concede that what the judge said is she has dismissed the jurors but i would no i think they could be recalled if they were jer in that pool that the defendant wanted to rebuild rehabilitate for some reason i see no reason why the clerk's office couldn't call those jurors and said you need to come in person they wouldn't have been exposed to something that would have tainted them in some way i mean what would they have talked about preserved so i don't know what why why there be any suggestion that the defendants could look at those records but i think to add to add to what resigned just said i think it's two things one is where the record  but then also sort of what happened to this jury pool like if they have been told ok you're done and you're you know you're off this case and it would be odd to you know maybe you could bring them back but that would create a weird situation for that particular juror to have  been sent sent home i guess metaphorically in this case and then to have been recalled that would have been so can i ask a question about both those things if the records just if we don't have anything in the record and there's nothing available as to what the   the th amendment guarantees the defendant a right to an impartial juror so the jurors we're talking about were all jurors they claimed the jurors i guess now that are begin to judge it too which is clearly a smaller subset than the four hundred and thirty  state they go the jury service i think they do have a right typically to sort of test whether or not it's a juror saying they're going to partial whether or not they're really just you know out or making it up because that happens and so i don't think that's really the response i mean to my question of happened here the way this were and your response seems to me to be to follow out there they could have if they wanted to they could have talked to these folks but that turns on two things the availability of these of these documents and whether that's been enough i guess that they were just a bailable  roger i don't think the record shows what exactly they were told but i don't think it's true that if a clerk of a court of a district court calls a potential juror and says you're a freak your request to be excused from this panel has been granted i don't know why that same clerk couldn't return the phone call to that jury and say unfortunately you have to come in there's just that doesn't strike me as as comes as a problem and the there is a juror is going to respond to it just that what happened in that case which was in person question by judge of jurors was closer to what the urban ministries screening process and i think the reason it's so problematic is as the opinion alludes to the fact that the record was extremely murky sea don't know what happened not to mention the fact that presence is critical as res discusses the fact that a juror is questioning in person is something very different than a paper on record that there would be arms here then constitutional harness your analysis and there seems to be some disagreement as well about whether what we know about those jury by the decisions wasn't observed in that instance would have been the judge reading the questionnaires and making a patients on the on the request to be excused i don't know i think the public trial was clearly it was clearly a veil in this it for this procedure that of course occurred on the public record so i think the parties agree generally on what the cases the role in cases are i course would point the court to the steel case which defendants also referenced and specifically says that a broader definition of officer the court is appropriate based in the context of statute is in eight hundred and seventy one dollars it's passed and it is called an act to enforce provisions of the th amendment it's also informally known as the ku klux klan act and so as we know at that time the ku klux klan was terrorizing if you look at the other part of what's criminalized by that statute it criminalizes conspiracies deposed by force the government of the united states to interfere with jurors and witnesses it even criminalize a conspiracy to come to interfere with state misdemeanor issue the statute in this case charges class b misdemeanor years it's was delivered to argue to address the statutory authority question i understand that particular regulations it it includes the there is no penalty provision in that section surfaces of these options and the government's view is that the government had bia right to be able to pick which penalty to be an important question whether or not it actually was under for sixty k or nah i agree will follow up with the letter at the one point i'd say though and i think this was touched on earlier the mere fact putting aside the statutory issue but the mere fact that we've said knowingly doesn't mean doesn't change the penalty provision the statute and you can imagine the reverse information didn't charge six hundred and sixty eight or sixty eight d f one we could later say we want that penalty that would that would  defense issue i see my time is up i believe i said i was to give you five mins of it the i don't believe that self defense is that i don't know where the immediacy well and i guess that is my stronger point you know obviously it applies when there's a reason to believe that the use of force was necessary to defend against the immediate use of on lawful force there's no immediacy that the trench took an extended period to dig there was no law enforcement in the area of the time and there there was no unlawful force coming up in any way shape or form so it's just factually doesn't apply to the scenario here whether it's and still another case i believe don't know i don't think w resigns getting out is is at what point did the defendants know that you weren't actually going to include knowingly and because it was in the it was in the charging document so low point that they know because even if even if you're correct that you didn't have to prove knowingly as a matter of law if they didn't know that then maybe there's a profit that's what i'm curious about that why should you because your fish will answer was we were trying to prove knowingly with regard to this one of them which i don't think for that question well here's what i recall of the record i think initially it was the government position was that we did not have to prove knowingly there was the formulation of jury instructions that the defense included that included knowingly and it was only afterwards again at the point that defendants allege where we realized when discussing this issue of of the of the vehicles and whether they knew the vehicles were owned by the government that's when we reverted to our original position  conclusions and as to the public trial that is simply that something has to come out in public but it isn't necessarily about what has to come on right so as i guess i'm asking you to respond to mr barrows point when she says that if you had something going on in public what you have going on in public would instances where were there is a bench conference that's not a deliberate process there is a public people can see that there is a bench conference but there is no requirement as i understand th to criminal trespass i mean they were they are there is no disputing that they were there and i can only say from the perspective of j prime might find that our argument was entirely that by the time maintain that they're actually in charge so it doesn't matter you were prejudiced well if you're on i think whatever you're faced with a criminal charge an instrument you have to prepare based on that and it's not just