of petitioner appellant newberg would be tempting in this case just to go straight to the group my greatest weakness which is what if any when the if anything was the end adequacy of the hearing if you want to call the hearing that actually occurred is really just question because and i'm pleased to say that it's clear in this twenty four d litigation that there is clearly established supreme court law firmly on my side that dates back to eight hundred ninety two so as a federal he is practitioner i'm very pleased to be able to say that the parameters of the legal tests here are well established and if there's any doubt about that the recent opinion from the score and go  exactly what the supreme court present this is this is the test you have to apply and this is the application of those tests under good or what are we in this case clearly step prejudicial could this contact have been prejudicial and it seems to me that if i look at that i have to look at cali endo and cali endo tells me when it's prejudicial and when it isn't right every influence and given this reality if an authorized communication is de minimus then the defendant must show the communication would have been could have influenced the verdict before the burden of proof shifts to the prosecution so i have to look at the factors then to see if it's to minimize sort isn't the first factor did the communications concern this case i don't even think the chair was certain about that well that's that's what she says well that's all we have well that you know the only arguably i mean are i but i'm just trying to look at the evidence i think that we're making the same mistake brief we don't know well that's what i mean there's nothing in anything she says which says it's any more than brief impersonal and based on what she said i think ambiguous you be clear that any factual things that any factual speculation we have to make in this case any dearth of factual matters is firmly charge of the prosecution but what her and about how i'm trying to do is get you to look very carefully at the factors if i go to the third factor identify the it in a t and rule of the parties involved no parties were involved right why see that's your argument it's not it was it is the standard in modest meant that that the trial judge gave to the jurors every time they they left the jury box and it wasn't given after it i mean the immodest event was  standard it after this event occurred the judge and specifically instructor and say well this is what you need to do with this information but look it's going to step one though could do at least this out step one the court asked whether the contact was possibly prejudicial meaning that it had extent they're inconsistent it's it on bank opinion which you find in the family court asked ok did that give you an indication as to anything doing with this case i mean it was this court room and no and that that is that is the strongest argument for the state either and you say we don't have to pay any attention with the jurors is under oath it's not to think that the case close clear it's not enough if you look at r resumption is is we're looking at a call i'm sorry right i don't mean to interrupt you you can go on say everything you want grammar is not president for this case in that case the man approached the juror told  jury he could not profit by voting to acquit that's rumor that is not this this ager looks at a t v one time in her home well ok let's look at this first of all this whole trial the judge carefully segment there was two trials going on here up there's this trial first and then there was a second trial with two more rape cases two more rape victims in that the judge carefully segmented  judge disallowed it this is supposed to be a trial specifically about the facts there is no evidence in this record that my client ever i mean to the jury that my client ever done anything like this before the argument was consent the defense was consent is such a core right there can't be any room for mistakes here the problem comes in that good door which you like talks about whether it was possibly prejudicial if i look at possibly pre prejudicial myself i could have one idea another could have another so when i look at what is prosody presidential press prejudicial that's why i went to colin callahan no because it tells me how to get there and then i weigh the factors and therefore i know because kalyan know was very straight the prosecutor doesn't have any burden there is no shift to the bird which is what good boy is talking about the shift in the burden that they're saying what if this is prejudicial then we move to step two in the state's got to come forward so when do we shift the says we only shift the burden when they can show these five factors and that's why i went through those with you i'm not trying to be i'm not trying to t down to me that that would be the weakness in this case because serial rapist she sees her courtroom other news there's already all this media exposure and one of the issues that my client lost is that immediately after this  seventy seven on the record the jurors once again exposed to media exposure prejudicial it and the argument that the state made the district court made as well this jury was probably already tainted by all this i mean this is my clients for trial that the jury was already so teenage by x extra extrinsic evidence a little more like saying he's a serial rapist didn't tip the scales well it seems to me that this is not an impartial jury it seems to me that your best argument is that once you get past what is possibly prejudicial then it's deemed presidential and then the state's got to come forward and it's heavily on the state to establish it was harmless well i'm saying i'm with y my problem is is that in reading our case law caliendo is dead on as to what i've got to look at on possibly prejudicial it was it was a conduct directly about the defendant it directly went to propensity we know from n c the evidence is me possibly prejudicial not all contacts or possibly prejudicial they have to raise a credible risk of influencing the jury chance encounters an oculus encounters don't meet that standard if an exposure does then it's deemed presumptively prejudicial and the burden then shifts the state to prove harmlessness and harmlessness in this case is no reasonable possibility of influencing the verdict that's the exact same two step framework the nevada supreme court applied here mr honour's pointed out the judge and even register whether this was about whether the two words were about this case and under those circumstances again in about a supreme court concluded that the average hypothetical juror would not have been influenced by this exposure that is a step one determination and at that point that the analysis could have stopped but both the trial court and the nevada supreme court then went on and addressed the actual prejudice under step to the trial judge asked the juror no words that you saw can you still be impartial she said yes i'm paraphrasing but this is at one thirty four to one thirty seven of the excerpts of record she said yes i can still be impartial i understand that it's my job to make my decision based upon what happens here in cou of the courtroom the trial judge then asked her so you have your positions even if it goes to the prosecution carried the burden of proof well i think i don't think we need to get to step two it was a step one terminations but the prosecution understand that even though it could have stopped both the trial court and the massacre in court did go on address the actual prejudice but it didn't necessarily need to at step one the court determined so your answer is to my question was the prosecution did carry its burden of proof yes with one tab yatta because mr newburgh never triggered the presumption the prosecution didn't have the burden here at step two but if this read about a supreme court went to step t court was correct and it was at step one that's enough of the present that no no burden shifting occurred no presumption of prejudice occurred and that's the end of the now else the trouble i have with the is this and i didn't get a chance to talk to counsel because he ran out of t ime after everything that was said everything that he and i went through i'm having a tough time understanding how that nevada supreme court made in the unreasonable application of the law before it not mean even if he's right and i am my questions were going in the wrong other direction because i was trying to be the devil's advocate i can't find any case which would suggest that the nevada supreme court made an unreasonable application and that's why i ask you the question have i got to find that they didn't make in their unreasonable application as a rule let's relates to step one and step two because they went to step two in their analysis no no your honor i think step one is sufficient i would point your honour's to the case of murphy versus florida which was cited by the district of the federal district court here and murphy held that a jury's exposure to media reports about a defendant's prior felony convictions and even other facts about the case is not presumptively prejudicial so that's further a further bolsters that aspirin court step one determination at the average hypothetical juror would not have been influenced by the exposure at issue here and that aver his last point about this case was just so tainted that really what they argued here was this is just a drop in the bucket so who cares that's not at all what the prosecution argued that's not the argument that anything about it corey accepted the point was simply that this innocuous and it version exposure to media answer how could any objective lee reasonable person who saw on the t v for only two or three seconds in the courtroom that she just beneath him think that the anyone did you recognize or have any idea that was happening here her answer was flat out no no and then the trial judge gave the defense attorney a chance to ask any questions you want to to develop the record so it was a litany of rhetorical questions in the briefing that would have been a proper subject to cross examination but defense counsel never made the effort and so that you have the record as it sits that the juror said i don't think that having did anything to do with this case do you think that her answer was i didn't know what it referred to or it referred to somebody else who would there's no no means in that situation where the courtroom that she's just been sitting in in the case involving sexual misconduct describes the proceedings as involving a serial rapist can can the juror really have any other reaction than the talking about my case i think or i think her answer it's clear that she didn't have a reaction we even even assuming for the sake of argument that the answer and therefore what they did as record did is not up is contrary to rammer and maddox and even smith and therefore no added up on supplies and there is no if you look at it you know are forty nine fifty there is no argument that they apply the property step analysis but let's look at step one and this is what to do i says at step one the court determines whether the allege external conflict was possibly prejudicial to meet this low threshold the defendant must present evidence of an external conduct has a tendency to be injurious to the defendant in objective test that's clear in the law this needs that step one burden and the problem with this case is that all of the speculation the engaged in here was brief was a few seconds how did the husband know to mute was she talking to the husband about the case why did he leave the case when she came and how do you know that was her case he's not supposed to do that there's all kinds of questions here all kinds of speculation all kinds of things that get to the heart of whether this is really prejudicial and it didn't happen it didn't happen why because the core didn't fall clearly established procedures and about us from court and fix it killer established procedures that are set by the u s supreme court this is a classic is a clear case for the issue of a read and i would urge this core group of your physician is the understand of the regardless what the juror said she took from reading those words that if there is an argument information reaches a juror that that needs to step one low threshold then we get the step two so you disregard totally what she says and ahmed saying that your honor what i'm saying is that the government has a heavy burden and it may well be that in a case with that kind of edgers sees the word serial rapist that she jurymen they are able to be rehabilitated that could very well be but what we do know for one hundred percent true is that the prosecution and not make the attempt to not meet