to a trial by an impartial jury and that's because one of the jurors on his case committed misconduct journey two hundred in defiance of the court's order had an unauthorized conversation with his neighbor who is a police officer about the case juror two hundred dollars told his neighbor that he was a juror on a criminal trial that the backs of the trial were sickening to him that he was really struggling with this trial in fact he told his neighbor that the trial was making him lose sleep and his neighbor who as a member of law enforcement should have known better engaged to a juror two hundred about the case in the culmination of this conversation is that the police or the nature of the crime that statement is precisely the type of rd party contact that triggers the presumption of prejudice under clearly established federal law so it seems like it may have been an improper conversation but how and maybe this is what you're just leading into how is it harmful in this particular case in this case it's harmful because what the state court should have done is that they should have recognized that the contact was possibly prejudicial and therefore triggered the presumption of prejudice and required the prosecution to attempt to rebut that presumption that actually happened there were questions the district court brought the juror in and asked them questions and the juror assured because this all happened this didn't come up until after the trial was over right so that's so the trial's over the conviction happens then they find out this conversation occurred and as i understand it the district court brought the  juror in and questioned him and said could you be fair and he said yes did this affect you or your decision and he said no and in fact he said i went i waffled back and forth  on conviction or not conviction so why doesn't that satisfy that standard under the controlling cases for extraneous influence the courts do not no court has found that ager's subjective opinion about whether or not he was influenced by the extraneous influence is enough to rebut the presumption and in fact maddicks said that the the jury could not testify as to how the extraneous influence operated on his mind good boy and doing this court in the decision noted that the most relevant evidence on remained for a hearing is the actual content of the communication i mean he can tell whether the jurors being cagey in his answer and maybe it's not dispositive but why can't that be part of determining how this subjectively played out well under under the controlling cases the courts have looked at the content of the communication the surrounding circumstances of the communication entering though this court said it could consider limited evidence of how the content affected the juror but not whether the juror cast his vote based on the content so it does appear that courts can consider limited evidence of what about his statement what about the jurors statement that he apparently waffled back and forth on a conviction or not conviction that seems to be a little bit different that this seems to be an objective fact that isn't necessarily related to whether he was prejudiced by the state but i do think the court can consider that the juror waffled back and forth and i think in fact that that helps mr von tobel as argument if the juror was waffling back and forth that means that he may have had a reasonable doubt and the statement from his police officer neighbor is the type of statement that gave juror two hundred permission to find mr von tobel guilty at the end of his waffling back and forth and then he thinks to himself well you wouldn't be here if you didn't do something that's the kind of statement that really gave him permission to say i'm going to find him guilty evidence that he didn't say what caused him to waffle back and forth he didn't say whether it was the evidence or the content of the statement he simply said i hadn't made up my mind and drew out deliberations i waffled back and forth and  fact the entire jury did the jury took just like the other jurors and they all had a problem with the case right it appears so the jury really struggled it took the jury about four days of deliberation it was approximately twenty hours of deliberation the jury sent three notes to the court telling the court they were deadlocked they couldn't come to a decision finally they did come to a decision after four days i'd like to point out that under the extraneous influence under parker regret and if a jury struggles that's actually evidence that there was prejudice that the extraneous influence was prejudicial they come back at one point say they had they could have a verdict on certain counts but others they did the st no they said they had agreed on all of the child abuse charges i believe it was five child abuse charges that did not involve sex assault charges and that they had agreed on one of the sex assault charges and in fact that was the one charge for which mr von tobel was acquitted on another note they said they had agreed on sixteen counts but hadn't agreed on the other counts and then finally after the four days of deliberations they came back with a guilty on twenty six of the twenty seven counts of the standard of review what are we looking at the district co federal case law on this question so if we find that to be true does that automatically give your client the relief that he's requested or do we still go need to go in and say well even though you played the wrong incorrect if you applied the incorrect legal standard is that the facts would have still been enough under the correct legal standard if i'm understanding your honour's i think i think yes so we're asking this court to review the hypothetical things that the state could could do to rebut the presumption is clear is that it's a what were those things me so this case what with the state have to do in order to rebut the presumption the state would have to bring in witnesses that could somehow rebut the presumption i think it would be very hard if not impossible so i've tried to think about what the state could possibly do to rebut the presumption i suppose if they brought the police officer  in to testify and he said i don't even know juror two hundred i mean that might be something that could rebut the presumption but would wouldn't help a juror two hundred dollars was lying would it no no i mean if the police officer came and said he didn't know  hundred that would that actually wouldn't wouldn't go well for juror two thousand two hundred for acidy correct correct which goes to my argument that i think i guess the problem i'm having here is i'm trying to figure out what more some court was supposed to do here we have as soon as we find out the court that just the trial court conscientiously brings the juror in asked about the circumstances allows the juror to be cross examined by counsel what what more was the trial court evidence not within the record to rebut the presumption and evidence like that would be for example did the state could have brought in the police officer and asked did this conversation happen what was the nature of the conversation the state could have brought other jurors to ask was this information told do we have to have the police officer in because he that because the police officer needs to corroborate what the jurors saying because the judge can't make a judgment that the that the that the juror is telling  that the judge can decide that the juror is credible but still find that the extraneous influences affected his verdict right that that doesn't need to do with what evidence you have to bring in whatever evidence the state possibly bring in and if there isn't any evidence that they can bring in a bin you're asking for a person a rule your honor i do think there's other evidence that the state could have attempted to bring in like the other jurors and if they could bring in any other evidence then we have all the evidence before us that we're going to have again the just the trial court has conscientiously tried to address the problem i think the court could have brought in the other jurors and asked them whether juror two hundred shared the conversation with them rebut the presumption at a hearing had she done so that evidence may have been available to the court but again good voice very clear that it has to be outside of the record evidence and hypothetical evidence that the state can bring in such as jurors testimony and things like that could we also stands for the proposition that this is a really heavy burden and a really hard presumption to rebut and i see that i've been out of time for good morning and may it please the court my name is natasha gabriel on behalf of the state of nevada this court this court should affirm the district court's order because von tobel fails to demonstrate that the jurors conduct triggered the presumption of prejudice petitioner pointed to good boy heavily as to what the state could could have presented in addition to what he did present good joy is distinguishable in the sense that good joy the state  rested on a declaration that triggered the presumption of evidence that's not what happened here what happened here was what the juror said after the verdict that's what i wouldn't say triggered the presumption because the supreme court did not rule how that the trigger the presumption was not triggered but it did it alert the court that there may be a situation where they needed to inquire a little further and so it wasn't that the state was relying on the original evidence it's that the state actually put on extra evidence and that was to bring in the juror and to hold an entire evidentiary hearing to determine whether this contect submit that the contact was de minimus and that the presumption was not triggered but even if this court were to say that the trick the presumption of prejudice was triggered the state rebut in that presumption by putting on enough evidence boy the state that there is the length of the some of the factors that they can look at is the length of the contact the evidence of the actual impact on the juror the possibility and the possibility of eliminating prejudice through a limiting  instruction we have that here your honor even if the contact was not demanded miss we have how long we have how long the context was it was at the mailbox it was a quick conversation we have the evidence of the actual impact on the juror he was questioned multiple times and pretty thoroughly by the trial court on how this would have impacted him and he said what about i agree with you on that but  we should be looking at the subject which responds to that well even looking at it objectively your honor a good voice says that you could consider the actual impact of on the juror how do we consider the actual how what best way to consider that if not to put him on the stand and ask him what was the actual impact of this statement on your decision and he said there was he said and quote hey it's a nice day outside that's how he felt about that comment it's just an opinion it was just an opinion of his it did not affect his presumption of innocence and in fact he was the court did provide instructions on the presumption of innocence after this contact happen and a jury is presumed to follow those instructions i would also like to point to the district courts agree that it's misconduct here though this was this is misconduct on the part of the  your honor i would see likes in about a supreme court said that this conduct might have been improper but it was not enough to trigger that presumption i mean i understand but i'm just wondering if you if i mean do we need to get into objective really whether there was misconduct at all or do we assume that as a fact here because both parties have conceded it and then just get into whether it was prejudicial well your honor you need to look at whether the presumption of prejudice was even triggered so although the con so you could say that it was harmful you could say it was it was improper but not improper enough to hit that threshold correct your honor and that's that's supported by even good joy that says even the contact even contact about the case can be insufficient to trigger a presumption if the surrounding circumstances show that the contact was innocuous we don't even have a case where he was talking about juror two hundred dollars was talking about this case he said nothing about the facts of the case only that the facts sickened him the fact that he said the facts sickened him that's where the nevada supreme court said that contact was improper but it was not enough it was too innocuous to trigger the presumption although it did i mean it does not it doesn't seem a stretch to suggest that assuming as i think we have to that the officer said they wouldn't be there if there wasn't something to it or something to that effect that that wouldn't have been related to this case even it was two separate parts of the conversation the jurors left with the idea i mean it's not implausible to think that the jurors left with this idea of hey i told him i've got this tough case and the response was well he probably did something because every you know no one's there without doing anything and your honor i would that's exactly on point of what the district court kind of said what they said was the district court said jurors are hardly insulated from a multitude two to of casual contacts over the course of their lives if exposure to such opinions at the dinner table coffee shop on the way to work proverbial water cooler rendered jersey incapable of following court instructions on internet presumption of innocence courts would have considerably difficult difficulty and be able to seat a jury and that's true here we hear we hear constant comments like defendants wouldn't be charged if they were not guilty  there are circumstances where and it doesn't have to be about the facts of the case the contact is so prejudicial that it that we don't even have a rebuttable presumption it's automatic prejudice which is a little bit more than what the federal rules require the federal case law requires so nevada recognizes that there are certain circumstances and they don't the case law doesn't specify that it has to be a the about the of the case but there is contact that exists that is so highly prejudicial that the state can't rebut it it's done it's prejudicial and the inquiry is over and it doesn't necessarily have to be about the facts of the case but we do have to look at just what us as humans here on a regular basis how many times have we heard that somebody that does not testify is must be guilty but we have to say that when a jury comes in and when during voir dire and during the entire selection process that they will that despite what they hear on a daily basis a judge and attorneys in the state are sitting there telling them look no matter what you've heard before last week today these are your instructions somebody is innocent until proven guilty and they have to be proven guilty beyond a reasonable doubt those instructions are explicit they read those instructions they follow those instructions we have here a contact that was so innocuous and meant nothing to this juror and he didn't he didn't go into the jury room and it wasn't like for example i believe it was good boy yes it was good joy where the jury was in there texting with the judge friend and kind of you know saying oh this is what my judge friend of saying the attacks that's not what happened here we have we have a contact heat he came back he listened to the presumption of innocence he deliberated he in fact said hey it was a he said she said when i went in there it seems like the jury went back and forth and ultimately they decided beyond a reasonable doubt that this defendant was guilty of the charges one i believe is what he was convicted of you have any case that that applies maddox and say go is the closest case only because the this court stated that it wasn't against clearly established federal law it was that that contact was a communication so was it was a police officer following a juror for seven miles but even that one that police the the case involved a  a lot of police witnesses and i believe police victims so that's even a stretch to see terrain go this is this is unlike any of the it's unlike a doorway to rain go kelly end ram or because you don't have someone that's really tied to the case imposing their influence on the jury and i see that i'm out of time your honour's for that your honors this contact was clearly prejudicial the st thing that juror two hundred said after the verdict came down the st thing he said in response to the question how did you come to your verdict was well it's like my police officer neighbor says he wouldn't be here if he hadn't done something that's the st thing he said in response to the question how did you come to this verdict that statement is clearly prejudicial whether or not juror two hundred then comes back several days later at a hearing and says no i wasn't influenced by my police officer neighbors statement is not relevant under these facts had a conversation with a police officer before he was selected as a j and a police officer should have they must have done so that he would be there but well what about that i think if if that were the case and the juror two hundred dollars credited what is police officer neighbors said then we would could expect anybody to say anything different right i'm sorry you really would expect somebody to say something different that is i disrespect i just respect the work that the police do have and that there would be an odd and odd comment to make well that's true that's true i want to ask  the same question i asked miss gabriel so what's the closest case to this what is the closest case in which we've got what i'm really looking for is a case in which the comment that is made to the juror is made without knowing anything about the case got any case this close that's the most striking thing about this case as opposed to the other ones is in all of the other cases where you have a bailiff who says something or the officers following somebody  it does appear to be a specific that is the person who makes the comment to the juror knows what case the jurors sitting on your honor i don't believe i have a case where the common is made in i don't believe i have a case like that however i think the question is did it affect the juror not was the person who not was the person who made the rd party contact involved and how did and how do i get how do we tell all of the juror was affected by the surface surrounding circumstances one way we know this juror was affected is because his response to the question how did you come to your verdict was it's like my police officer neighbor said he wouldn't be here if he didn't do something that is the strongest evidence that this  absolutely was affected it's not surprising that days later when he came back for a hearing he changed and said well i wasn't affected he may have even wanted to believe that he wasn't affected but the strongest evidence is that the st thing out of his