misconduct and an uncertified claim of germany's conduct and this court should review each of those claims de novo because the california court of appeals the resolution of each of those claims was based on an unreasonable by beginning with the issue of prosecutorial misconduct the california court of appeals denial of this claim rested in large part on its conclusion that the evidence of mr pop as his mental state implied malice for second degree murder was overwhelming that conclusion in turn rested primarily on an undisputed and clear cut mistake of historical fact concerning the nature and circumstances of mr papa says prior conviction if you look at the court california court of appeals decision that you are three six and twelve you can see that they conflated two prior convictions of the state doesn't even  watson they rely that was the primary fact i don't do the facts didn't they and they say there was make reference to the facts they say when they do go through the facts however when ruling on that claim they  mention two things they say the evidence was overwhelming for this reason of the prior conviction which mirrored precisely in the erroneous construction which mirrored the facts of this case and the california  that a prior injury accident when driving under the influence is a very significant factor in the implied malice inquiry they also mention that the court gave you no sustained objections to the prosecutor's comments however it need not be under this court's and the supreme court's case law the only factor relied on for instance in wiggins v smith which was a similar case of deja vu ever in that case it was a capital case and the state courts that erred in what certain social service records indicated they thought that they had included evidence of the petitioner sexual abuse whereas in fact there was no such evidence in there that wasn't the only fact they relied on but because it was fact so critical the fact was so critical because the jury was specifically instructed on how it could use  prior convictions or arrests for dui and for dui alone it said so it said you are permitted to look at the prior arrest there was a two thousand and four arrest in the prior conviction in two thousand and seven to determine whether he had the required mental state and the california supreme court has said that that is a high standard they approved of this charging practice but they say you know this practical matter may be hard to meet and the jury was instructed that they could bring well under else to be done to make or we look through to the last reasoned decision of the state courts and here that decision was the decision of the california court of appeal and they did give a reasoned decision on this claim prosecutorial misconduct and i think the supreme court's jurisprudence while saying a state court need not always give reasons to receive deference under richter and so forth when it does give reasons  context of a prosecutorial misconduct claim since the standard under garden is so infected with the trial you know as to deprive with unfairness so as to deprive the defendant of due process this court index said that practice of soon within the prejudiced part of the prosecutorial misconduct claim so in that case it did not separately go through brecht so i think as long as this court finds that the the prosecutor's statement still infected the child trial with unfairness it may not go through brecht separately but let me let me ask you about whether this factual error was material w know the court of appeal made a factual error in describing the conviction but i guess i'm not really understanding why it has to be under the law a material factual error an important factual they're right  otherwise there is no relief under twenty two fifty four d two you agree with that right ok so explain to me why this was an important factual error i mean it seems to me that the court of appeal made sensually is that it assumed that mr pop us received the watson admonition twelve years prior to the accident whereas in fact he had received the watson admonition one year prior to the accident and beyond that the error is just you know was it two convictions that he received one for you know escaping the police and one for dui or was it one conviction in which he did both at the same time when you put all that together that doesn't sound like a very important error and if anything it was an error that might have cut in papa says favor in the analysis yeah i would argue that it's important because that instruction seven eighty three  mean the way the d a characterized he says he's a good drunk driver and there is a difference if he had there is evidence that he had driven under the influence twice before either of those events involved erratic driving but the jury still but the jury still learnt the jury learned of his escape conviction right his fifth conviction for failing officers and learned that he had a collision in that incident so the jury learned that he was convicted for escaping a police officer and when he tried to escape a police officer he was he had a collision the jury learned that he was convicted for drunk driving and he received the warning and then what he did was he went and he tried to escape a police officer while he was extremely drunk so it sounds like i mean i guess two points one is it seems like the strongest evidence of his  state of mind was not whatever happened with his prior convictions but the fact that he attempted to flee an officer while really drunk with a passenger in the car like that in itself is evidence of his of his of his state of mind but then when you look at the prior convictions it seems like his his prior convictions put him on notice and the jury knew that he was on notice that it's dangerous to flee the police and it's dangerous to drive drunk which means it is certainly dangerous to flee the police when you're extremely drunk when you have a passenger in the car who might die your honor the the trial court your one nine hundred sixty ninety seven said it wasn't certain it could use the felony conviction for evading as part of that watson advisement certainly the the prosecution could argue that he was travelling at a high rate of speed but the instruction directs it to the conduct that day when he took over the wheel that he knew that would result in a high probability of death or using the jury couldn't assume that his prior incident of fleeing from the police put him on notice  one cannot be contacted and one refused to come in at your one sixteen the minute show that when the court contacted them and told them are you asked them are you willing to speak to counsel regarding mad affiliation that specific question  and we have argued that that by privileging your privacy and the state hasn't argued that that would override this report this is a right to a fair trial here that it should be remanded for a full and fair evidentiary hearing on that he should have just asked them to want to talk to you willing to talk to counsel about the trial i'm not certain your honor but i think if the juror had refused that should have granted  you know i've i served my time i attended the trial i'm finished i voted and i don't want anything more to do with this i'm done that that is what the juror said seemed to say though what is the judge supposed to do you know sure what the records would show now historically as membership in two thousand and nine but as a start would that would i notice that the there were some mention in the briefing in the records and whatnot that the transcript of the vor dire itself was not fully transcribed you're on it was it was written with taken down because the court reporter's notes reflect that it was taken down lawyer and state court ref apparently conducted a review of that and you know has some notes on that attorney's why didn't you why didn't you get him put it in the record i was appointed to this case on appeal and this district court so let me ask you this let's say that it comes back from the subpoenas are served and information is back and these women's names don't appear on bad records that in the whole thing your honor again it would the district court would have to order these jurors in for for to be examined i'm not ruling it out but i wouldn't say that necessarily the resolution of this claim depends upon it but again the first step i think  prosecutors conduct however every view of the entire opinion in the case the court of appeal was not unaware of the fact that there were two convictions one from twelve years earlier when when mr papas was convicted of the evading and then the conviction here and a half before the incident here at play here where he was convicted of driving while under the influence and received the watson advisable although the court of appeal in its analysis failed to identify both of those in the opinion that the court decision as a whole and we look at that and conclude and have to decide would reasonable jurists conclude otherwise here would there be reason room for reasonable debate here there is no prosecutorial misconduct here yeah the prosecutor made some mistakes every one of those mistakes were protected and the ones that were objectionable the trial court did indeed sustain the objections and it was admonished and given to the juries and there were also instructions given to the jury that bush shouldn't the should the trial court i'm not sure i'm not sure your best strategy is to lead with the you know the idea that the prosecutor wasn't that bad in the trial judge did a good job of fixing problems because i don't i don't think there's any reasonable argument that that happened i mean the the the trial judge should have instructed the jury to disregard these repeated inappropriate statements by the prosecutor and the trial judge did not do that  d then it seemed to me the that the trial judge was taking a pretty laissez faire attitude to that to the closing argument towards the end of the prosecutor's arguments the trial judge did instruct and did admonish the jury look you are bound to the and i agree that those statements of the d a made should not have been made but we also have a huge chunk of the of the argument that was appropriate and we do have the instructions by the  was there is nothing here that rebuts the presumption that the jury would not have followed the trial court's instructions so the court of appeal in analyzing everything and looking at what was going on here the court of appeal reached a reasonable conclusion that there was no harm here it was harmless though are you arguing that the factual error was not material or are you actually are you arguing that under did novo review we should conclude everyone said no yes except for one juror there was one group where that question was not presented to that particular group of jurors but that's not clear that's not exactly the judge the trial judge said well i think there may have been one group that we didn't ask this to ask ask them about this right it's you know like certain that they that they didn't or didn't he says then to maybe a month group we did it right that's correct that's correct and i can see why and then i went looking for the for the bar diary transcript to see what happened right and it's not in this record right and i do not know why it wasn't and why it wasn't but that's part of the borg are a transcript that is in the record seems to reflect that the border was transcribed by the court  taken down yes but not transcribed not only was a transfer was transcribed was transcribed ok it was transcribed and appellate counsel on the direct appeal had those records our office had those records and that's why i'm surprised that it wasn't lodged with this court when the or with that with the district court when the answer was filed because usually that would have been lodged with the with the district court which is that transcript show that every juror does that show in fact that some jurors were not asked we remember a man i don't recall so i have actually handled the direct appeal and what i do recall from the direct appeal and the and the issues that raised was that there was that the transcripts do reflect that one juror was not asked that was juror number twelve but jour twelve was actually one of the four jurors that's that talked to the to the counsel and indicated that she was not a member of madd and she would have been she was not on the mat lists when that was when those lists were were subpoenaed so how do we know that we're verify your figure that out for ourselves i mean i'm not i'm not just being that you're not i'm not saying suggesting that you're not telling us correctly but you're doing this from memory right part of the record that was transcripts as far as what happened here we had an evidentiary hearing we had one jerk turn up or one come forward and suggest that there was a member of madam on the jury we know a lot about this juror because she also talked to the press she talked about how she didn't like this to this verdict how she wished that a different conviction was available for manslaughter we know that as she described what happened during polling  that that was not reflected in the record at all there was no i guess guilty statements made by her when the jury was polled she was the first to be polled and she said when asked is this your verdict she said yes so we know that this is a juror who she's she's emotionally distressed by this verdict and she who remembers things differently from what the reality of the facts actually are oh i know that that's not in the record that ok not just so emotionally distressed at the distress that the trial court itself the trial court itself may have expressed some misgivings but the truck court itself also expressed and it is in the record that she was emotionally distraught by this verdict that she was that she was  i don't remember the exact words but the trial court made an observation as to what she is sensing and feeling about this verdict then we have so we have her testimony and then we have four declarations from jurors who all agree no one on that jury made a statement indicating that they were a member of matt and those declarations were produced by whom those are produced by the by the counsel they talk to the attorney by defense counsel i think so ok to defense counsel produced woman on the jury that said we had mad so they wrote to the six other female jurors for responded and said yeah i would be ok to conti contacted by by counsel and so then that then that the attorneys were able to contact these four jurors and then the declarations were produced from that contact and they were submitted to the trial court so the trial court then had stuck aeration with forgers saying no that kind of statement was never made nobody on this jury was a member of met the that's not exactly what the declaration said but but did they did the did the did the trial court actually make a factual finding that her statement was journal or ones assertion was incorrect court made a finding that nobody on the jury was a member of now based on the evidence that was before it the trial court was careful not to call her call her a liar the trial court said look i'm not going to say that she's a liar i think she's an honorable person she's remembering things the way that she remembers them right and that was a matter of respect for her and for her personal dignity but the trial court did make a factual finding that there was no member of matt based on the evidence that was worth that finding in the room i don't recall that specific i don't recall him saying specifically i find that no member of the jury never did you know if he would because he was somewhat cautious that he didn't know whether or not every finding that she had second thoughts that you know i think you're correct and i know my recollection will look at look at e r one thousand and three and i think this that's where they're discussing it but i think i agree with judge pious i don't to the other two jurors about not interfering with their right to privacy that he was going to do anything further the court was concerned about that the court also and this was quoted by the court of appeal the court said i concluded there was no misconduct because there was not a mad member on the jury the california cure yes in townsell there's a superior court the california supreme court talked about this compelling interest and the danger is if we just willy nilly are able to penetrate that privacy interests because of what would happen is jurors that know that they can then later after trial be interrogated about what happened oh we used to do that all the time state court we can identify jurors by numbers everybody knew who everybody was and over the over time there has an interest as as as losing litigants tend to want to talk to jurors and want to interrogate them and find out what went on there is the danger for potential harassment and then there's the danger for potential jurors in memor privacy interests as well and it takes a compelling showing of misconduct to penetrate that that veil of privacy would have been reason here for the duke he went to the to the trouble of having the bad records subpoenaed for the do have a finding by a trial judge that got to the body to know he didn't he did not do he could do to get to but that's not what's required our supreme court has never said that a trial court is supposed to haul in every single  unreasonable process we have a reasonable process in which the trial judge interviewed found out from journal or warm her view of what happened and from jersey numbers whatever their numbers were the four other jurors what happened and was able to conclude that there was not a mad member on this jury that proffer when said it would but that's what our stand is i mean it sounds like maybe elsewhere he reached that conclusion but he said in the you know it you are one thousand and three we just don't know it's it's too nebulous know that i don't know at this point what was said or by whom really we've exhausted anyway to try to find out what he's talking about that point is not whether someone is a member of madd he's talking at that point about what statements about mad may have been made mad was in the record was that he says he says there's i don't think that i was that's not how i read it he says there's no evidence that a member of a of the jury was a member of madd we just don't know nebulous if you read in context what he's talking about we have two kinds of things going on is a jury member a member of madd and what are their statements made about matt yes they're most likely were statements made about matt there was evidence in this record that a police so this jury's going to be able to talk about madden said ok i guess i get that i see that so that's a plausible reading of it and so when you look at that was this process defective you know does the trial court have to overturn every single that the ultimate declarations that your nine hundred two were submitted and obtained by the prosecution was there any dispute from the defense so you you said the defense counsel and the d a s office spoke to the jurors together i think not at that time at the are ninety two however before before the declarations were obtained defense counsel it said i've talked to them and to remember at some point there was discussion of two people who mention a common about mad and one woman who mentioned that they heard that someone was on madam remained on the jury so that did not make it into the declarations filed by the da however they weren't challenges inaccurate as to the points that the declarations did cover what was the trial court's finding and whether or not there was a mad member on the jury he found that there are no misconduct had occurred because on this record he couldn't find that there was a mad member on this jury and and i think importantly to the d to the sort of the two are raising here that there was he couldn't think of anything else he could do and that's the the unreasonable portion would argue of this process when the defense counsel had offered one you know fairly moderate step as you know once they learned that matt was responsive to the subpoena which the trial court did prevented him from doing that even in a case where mr office had raised at least the colorable and i would say a substantial claim of juror misconduct and so the remedy would then be would be to grant the me his petition on twenty t fifty four d two on the ground that it was a it was the fact finding process with respect to germany's conduct was defective and then send it down say that there needs to the state court is required to have it in a court in the district court would have to have an evidentiary hearing on this on your question and the overcoming to two is important because there cannot be an evidentiary hearing in federal court until the one  two is satisfied and then what would happen at the this is just guys asked this question earlier i realize but i want to hear further about what would happen at the evidentiary hearing which witnesses would be called what subpoenas would be issued what would the fact finding and what else would happen at that evidentiary hearing and then i think before that there would be discovery which the district court could stage in milk rewriting the brady case that this court ordered the state to produce the officers personnel file that was issued at their right but what i'm asking about in this evidence you're hearing let's say you're continuing to represent mr pompous and not proceeding what would you do what witnesses would you put on who would you call what discovery would you do who would happen if you were on discovery of the jurors identify find information probably as a first step to subpoena mad for those records if such a records historically are available if not i think there is another way to prove that there was a mad member on the jury if other jurors heard it now when juror one spoke about it she said that it was said mostly to this group of three maybe jurors who were aside and discussing some issues so not  not necessarily the case that everyone would have heard it and then you know it depends on whether these two other two jurors are available we would probably want to re interview juror number one she seemed to have a very firm idea of who the juror was who made this comment and it probably would not be that difficult to narrow it down i think she was a woman i think she mentioned was an elderly woman  once we have the identifying information it would be i think much and the work matched against of our dear it would be fairly easy to narrow the issues as to who might have said this and whether they are one of the people who already