the california court of appeal said there is a presumption of prejudice there seems to be more of a debate in the federal law about whether that presumption of prejudice still applies it didn't run there's argument that the smith case that came in the eighty's seemed to pull back from that so the dividing line to me seems to be that the ram the presumption applies is either intentional tampering which you don't have here or really aggravated circumstances or several circumstances and so my position is there is a presumption of prejudice because the exceptional circumstances here is that the information in the article is so prejudicial that it creates the so you have the hearing you don't have a presumption of prejudice and then that gets to i think the principal point on appeal is the adequacy of the course inquiry into the misconduct and the cases hold that there must be including reasonably calculated to explore the jurors misconduct and i think that's what we can all agree about you know that there has to be a reasonable inquiry the real question is who's burden of it is it to conduct that inquiry opposition is at the very far in the trial court and the court of appeal the state court of appeals position was that the bird really fell on the defendant and i think it falls on the court in this picture in this case and unique situation because it has to do with juror misconduct that it had to do with misconduct they have an agent turning over his notes or something i think defense counsel would have to drive  by bringing the article up maybe the prime facie case that triggers the duty of the court to make a more thorough investigation because this article is so thank you michel i mean with the evidence  had this record maybe we should go easy on him because we we don't want to punish him so much because of this so it's prejudicial but i just disagree that it's so pretty i my point is we don't really know because the court didn't make the inquiry to respond to your question what the court should have done having seen how to get a court thank you first of all the court agreed to hav hearing let the defense counsel put on a hearing as he wished he called one of your asked if you perform the questions and the court only asked one if you question what your he called juror number one family of the defendant didn't know that so subsequently and that became an issue but that's why i think juror number one was called counsel defense counsel through his relationships with the your who originally it was voting for the swings or whether he was affected by this tuesday for article that's certainly what that sounds like a good approach doesn't it's a good start and then the question that i'm raising is the jury comes in testifies there was a newspaper article and it was in the room i don't really remember the details of how much we got into that and then the article is paid to show and i think it's relevant about how is concerned you have no problem now are you criticizing the defense counsel for not calling other jurors i just certainly think he could have done a better job but i'm really being critical showing that your jury was improperly influenced by this article and called on your are you saying that the judge should have called the other jurors rather than yes that's what i'm saying with the article comes in and you see the contents of the article and it's really what happens from investigating this one juror the duty now is to get to the trial court to have a more thorough  if you can make that sufficient be more specific and help us give us the language i can  to introduce any other evidence that he might want to provide so clearly at that point he had the permission of the court to contact members of the jury he did yana why is it a due process you would have a very different case if the judge had done nothing and his simply said you know i don't care you haven't supplied us with any declarations from many jurors who say they were influenced by the article he did hold here and he did take testimony from one of the jerks yes sir and as i understand your argument in response to judge officers question you think you should have called the other eleven as well or at least some of them but that is that's the that's the that's the position  by the california court of appeal to decide that a the inquiry that the trial court conducted with adequate can be there was no prejudice to the petitioner because he was caught red handed during the course of the burglary i think  i think that's why as i did in the brief and i am now this case moves towards the spectrum of the straw so our because that's really realistically what i need you know the one response on i n a harmless error is if you go through those factors that are laid out in addiction case and i think in the jeffrey which case you look at the material and how long was available to the jury how often the jury discussed it whether it was introduced before a verdict was one each well whether it was ambiguous you apply all of those and i meet those factors all the way this was ok i think but argument is playing down here based on what you just said  harm you either but you either win or lose on the structural error analysis in other words you want us to declare that there was prejudice in violation of the due process clause no matter what because you can't win   and a third juror asked the student newspaper but he doesn't know whether or not he actually saw the article itself and the article wasn't discussed the article was before the judge and after the judge heard the testimony from this juror and presumably looked at the article that the judge decided that there wasn't any need for anything more and although it's not stated explicitly on the record i am sure that analysis well yeah i don't believe there's structural error and i guess going back to the point i was trying to make was not just whether or not the judge made an adequate inquiry i think it did because i think what it implicitly decided was i have heard related crime and here the article said it would be the third strike for watts who was convicted of two burglaries four robberies and two raids all in the ninety's and then we have another case that says we presume prejudice if the jury finds out what the punishment and the article goes on to say but they went to trial anyway probably because of what was convicted he faces twenty six years to life in prison and the three determined that based on the fact they couldn't find that there was any prejudice and they would presume that the jury tampering they could or not jury can bring during this conduct and but they couldn't find that there was any prejudice given the facts of this case so it's article the trial court conducts a certain amount of investigation and then determines implicitly that ok there's nothing more needed we don't have any supreme court law that mandates that the trial court take any for the rationing health insurance and exercise discretion decided that was guilty was because of the circumstantial evidence instruction that he misunderstood and i think the inference was that perhaps what this jerk thought was you couldn't convict based on circumstantial evidence alone in this case as we know with the record although i could be mistaken nonetheless i think given his explanation of why he voted not guilty it appears it was unrelated to the newspaper article in fact i believe the juror said  day and reached a verdict later that second day if i remember correctly i'm not positive about that i don't recall for sure i think that that was that was the scenario in this particular cas that's despite how long the newspaper article was actually available to jurors are there the testimony showed that it really wasn't considered in any of them and nobody was reading it so i don't know if in fact it was present from the very beginning on the fourth so we've had two and then sometime between three fifty and five pm that day that article was read and you reach a verdict they came back the next day at nine thirty had a verdict before noon so are you saying there w testimony that effect or because this is just as likely that if you're going to vote your article in the next morning it could have i suppose it was lying around the courthouse that's a possibility but the articles drive it home and brought it to the the congregation has reached the settlement agreement first by demolishing a single family going that was the subject of that so many agreement i think the thirty four hundred square foot single family dwelling that was the subject of the complaint litigation for a number of years by building and eight thousand square foot structure in its place there's no mention of any thousands square foot structure in this i'm going to be in and then by not disclosing to the city's virtually the most damage that could be done the fact that there's a whole division of the city that process of building permits and that if you want to get a permit you have to submit an application so that division of the city is your physician that this language in the settlement agreement bypasses city ordinance and practice you know we would never argue that it would have been sufficient had the congregation in one sense  like we've got an argument that i would expect from the city the size of los angeles the right hand didn't know what the left hand was doing as i read the record you had a person in the building department who received an application to process the permit and somehow that person found out that there had been a dispute and got an assistant city attorney involved and at some point he had a copy of the settlement agreement with the pain but that this was a different assistant city attorney from the one who had been involved in the negotiating of the agreement so are you taking the position that the city did not have actual notice that the pendency of this application was in progress at the time that the our so the city i think the answer my question is the city had a chance to go through the building permit application that the congregation intended to demolish four thousand square feet and replace it with  attorney's office and nobody bothered to ask anybody else in their respective offices what's the history behind all that only someone who had an insight enough to know that when the settlement agreement w the left hand doesn't even has a right hand that we have an agreement here we entered in agreement sacr to prevent what happened should not be interpreted so as to allow i have to say ms henry i still find it incredible in light of this language in six say that the person listed double pane windows maintaining the fence around the property and removing some concrete paving and replacing it with landscaping so if the city had this which really is communication shall be in writing and delivered mail there are sent five wire or other telegraphic communication and it provides the names of the representatives for each party to i'm i'm hung up on this point maybe you can clarify it for me but it just seems to me that in six a yes there is an obligation under the settlement agreement to submit any required plan and permit application to the city within ninety days correct and then i go to eleven again i find that any notice tender delivery or other communication pursuant to the settlement agreement shall be provided to m parties to a contract may agree on a method of giving notice of what they desire to implement absolutely or and do you agree ng demolishing and leaving out only two wall now don't you think that that is considering the spirit the spirit of the settlement they remodeled it contemplates that there will be building permits and you know you're probably right in terms that if it does not actually refer to the remodel  in terms of the notice the city truly called me in january after the permits against ned and requested a copy of the plans which i sent to him along with a copy of the settlement agreement the per permit application which was granted and to the pool that said no i do not need them i can get them elsewhere in addition and that's it the record a supplemental administrative record page twenty steps in terms of my tran the building the problem had noticed they sat down when he went all through the settlement agreement so the other lawyers have the opportunity you know certainly from our perspective we thought we done everything in gone over and a absolutely i take issue with that that's not reflected anywhere in the settlement agreement certainly was never my understanding and that's what the district court found and i think the other thing you need that is important here in terms of when i use the expression the single family use of the property shall be restarted and maintain her act would you say that that is pursuant to the settlement agreement absolutely yes all right so i camped and it's a form of notice any your delivery or other communication pursuant to the settlement agreement so forth and so on line and making the reference now how do you get what is surprising to me that the congregation or the attorneys did not with of with this project did not consult or even notify mr green why because we didn't believe it was require actually in front of the magistrate judge so there was a hearing in june there was a hearing in august where we actually came to an agreement so it was you know in terms of the actual face to face negotiations maybe four or five or six hours in  green somehow had discretionary authority over that and again i would think based upon the record here the city had asked rule knowledge of the settlement agreement he spent three months going through the settlement agreement going through the plans there was nothing into negotiations to know what their plans were going to building officials going to criminal prosecutors presenting plans to them talking to them doesn't get you to those who have insights into negotiation