circuit we have two cases on our docket this morning i want to make sure people know that it's was mostly three originally but it's now to just a brief  caution of course all the standard rules and norms apply to this unique setting i want to thank all the counsel for putting up with this obviously less than ideal setting but we'll get there written hopefully be with you orleans proper and justice of the peace courts are our sui generous in louisiana in that they are pretty much self funded and and self managed the justices of the peace themselves get a small sour i believe it's around two million twenty five thousand dollars a year but most of them do not get any sort of funding from the state or the municipality of the parish which they serve so they've got to provide their own office space and some of them even operate out of their garages etc so the way that they make money is through or the way that they they earn their funding is through filing fees largely  f and the other issue but i think it's as relevant to this court's consideration at least from background purposes mr day's own as a young lawyer that he was around thirty or so when he took office and whenever justice of the elected they have a constable that is elected in the same district and that casa boy was essentially the equivalent of a sheriff and performs the same functions that sheriff us to the district court which would be assisting with service and then handling the garnishments and those types of things that that occurred unfortunately in mr day's aunt's case the cost of that was elected to serve with him had it been there for a long time and there was lots of friction and  quite frankly he just was not doing what he was supposed to be doing as a result mr de zone took over the handling of garnishments and he would was not typically supreme justice of the peace or not supposed to handle c serving time this because he had a gambling problem and the government put on evidence at trial that i was a compulsive gambler mr day's all withdrew over two hundred and thirty four thousand dollars from nd justice pretrial attempting to keep some of this evidence out or at least limiting it so the trial court the trial judge was was aware that this was an issue and to judge women's credit she is one of the few  judges that allow some more detailed questioning of the been here and she did allow us some limited questioning of the jurors of issues that we've chosen obviously gambling was one of those issues not a lot of time but it was it she did allow the lawyers to conduct some questioning and that's that's what brings us to the case here so that and i just wanted to make the point that  on himself he worked in law school in the eastern district in the u s attorney's office so he knew a lot of the people in that office his wife as was an administrator in the office and as a result of that the eastern district actually from this case and it was handled out of the western district of louisiana and the reason i raise that point is the bridge the way that federal government got involved in this case at all was because mr days on himself sought assistance from the eastern district u s attorney's office when he was having issues with this constable he was saying i need help and they he reached out to one of the u s attorneys i knew and  as corpus case a post conviction matter that was filed by a prisoner in texas and part of the ineffective assistance of counsel claim that he met eight which was essentially recognized and granted by this court related to his counsel's failure to object to five jurors or potential jurors this court ultimately focused on two of those jurors and the challenges that h case and i think it's worth just very briefly focusing on what that question was there were two jurors and virgil there was someone and there was sounds in the st questioning of someone  pattern of past behavior repeated offenses the attorney responded ok but have you had any association of the past with police officers in your family or friends mr someone responded yes i have a relative i'm just saying from their experience that they've told me about repeat offenders and the defense attorneys so so therefore you cannot serve as an impartial juror in this case mr someone perhaps not is the answer yes or no i would say no that was the extent cause you not to be a fair and impartial juror and mr burgess case in this particular case at this particular time in this courtroom and mr sims responded yes i don't know if it's going to be partial or impartial but my mother was mugged and they never found the mother the thought keeps crossing of monel we're talking about this as far as assault on an elderly person so it's weighing on me because of the fact that they never did find the person i'm thinking about that and the attorney responded would you call it with this cause you to be a juror who cannot be fair and impartial in this case mr sims said yeah i believe so not believe or is it so was the defense attorney's response he said yes i do believe so critically this court in the in the vir and not doing so was deficient performance in the critical case are the critical holding i think that applies here is that this in this is directly from the disservice decision the jury box is a holy place our criminal justice system is predicated on the notion that those accused of criminal offenses are innocent until proven guilty and are entitled to a jury of persons willing and able to consider fairly the evidence presented in order to reach a determination of guilt or innocence and this they found that mr barrett was denied these two basic principles and whenever his attorney failed to challenge these jurors and just as a direct quote there was little doubt that if he had preserved do these errors that such an error would have been sustained by the texas courts on  enforcement family members talked about repeat offenders who didn't make any specific talking about that being an issue in this case although that he essentially said the same thing when questioned about that because of his discussions with family that he would find it difficult to be impartial and that's the fear with this journal her thirty one dollars she said it was silly but she also said i know family member members that have had trouble with it she said in other words you cut and let me read it directly i think it's a silly way to spend your money but that's what you choose to do that's on you but i mean i've had family members in the past that have had issues with gambling so i think she's taking it back in the same direction that mr someone did she's a den of trying with the problems in the issues that her family recognize that the silly comment on it's on is not what we're hanging our hat on it we're not complaining here because she said it sure we're here because she said that in addition to her but she recognizes the of the issues that we raise in our briefs is that the the whole jury selection got somewhat compressed because of some significant miscommunication between the court and the jury administrator and on their judicial temperament some judges are fine they just want to roll with the punches judge lemon is is a very she she likes to keep things on schedule and i think she was frustrated and agitated by the way that things have happened with the jury administrator and and it was clear but she want and two parts your honor it was the the jury questionnaire in the biography information that's provided to the judge in the attorney's whenever the panel comes in was delayed for some reason in the jury initiated was not able to provide that to us until approximately forty five or fifty minutes after it to the judge ready to get started so we were delayed just from the start and then the jury administrator had under judge lennon's understanding  already had already screamed for people who had caused hardship problems and i was lee that didn't happen and so i did end of the trial that's when the juror thirty eight issue reared its head and it just all of that to say that this was not a smooth statement in response to defense counsel's leading questions and out of a desire to end the questioning the court therefore concluded that the juror statement did not undermine ern initial some indication that she could be an impartial juror and d read the district court's elop we did judge women says there wasn't the context of her testimony she said she wasn't going to waste for money she didn't care about what other people did in my only concern about that was that it doesn't fully articulate the reasons in real time to the extent that she did in her order to not a mistrial so and so i acknowledge that but i think a lot of this is apparent from the record i mean in the judge's order she said that she made that determination based upon the question is do you take a very leading top rate intent and she said so you're saying you know you might not be able to be fair and that your response oscillate so you're telling me that because of that you should instead of this juror if she says yes i think it's apparent from the record that those are leading says are agree that they shouldn't sit on this case why is that not wait but that's quite a statement or quite an abridgment concession why is that not the basis of the justification for at least rehabilitation for two reasons your honor the st is the juror wasn't asked by defense counsel given the views of gammel that you just expressed you know would you be able to decide the case based upon the evidence used at trial that is the standard for impartiality the jury was asked and somewhat leading fashion given your views you shouldn't sit on the case right well it sure doesn't know the standard for whether or not she should set up a case that jervas what she feels and it just goes the standard and it's up to the here was this really ambiguous and after i think we should agree or at the very least somewhat miss b questions but the dummy point is that the court is that it's up to the court to decide that not the church i do think that's one of the distinctions your honor with the wrong you probably know these cases but i do didn't we say that the rehabilitation questioning after the fact was important given those more critical response was i don't want to see the record use of the crime issue or alleged which is a fraud probably she did not say that she would be biased in favor of the prosecution and she did not say it would be difficult for her to decide the case the contrary she suggested at the beginning of o peer that she could do that she did suggest that she had a family member with gambling problems and gambling would be silly way to spend your money but that doesn't rise to the level of once you and then she had to respond to the leading questions about sitting on the jury and we for rehabilitation not a spiritual from the facts the other cases where there was a great or at least initial cause to be concerned about the jurors ability to be impartial turning to virgil and hughes cases which were raised in the  whether or not he could be impartial and infertile the court again said that there was no statement by that you're there as that he's that he could be impartial that's different from this case the facts are also different as i got two which is the church being mocked and the family relationship with law enforcement asserting himself and returning to this question and just one point of clarification for just comment on i'm not sure if this got lost but beyond the issue with the jurors returning for her chip reasons and losing three and getting three more that all happened after if you look at the transcript the judge conducted herself fairly extensive or if you're each of the three groups of your members asking them introductory questions based on their answers the judge asked her own questions so somebody indicated it that they did  their views on gambling i think perhaps some other things that came up either in the questionnaire which is not in the record or in their court here but it does but the best counsel to follow up and use able to go through every every juror and ask the questions that he wanted questions for the particular jerks and march through them all and then defense counsel march through them all and and then the prosecution rests your questions of the particular jurors but there was i would i would submit adequate ability to ask questions this court and supreme court has also reiterated the there's no hard and fast rule about how to conduct work here that's one other reason why courts give extraordinary discretion to the district court i didn't see any indication here that court here was anything but thorough and fair and as i noted that much i think to the discreet issue in front of this court today is absolutely the trial court is entitle to great discretion to the credibility of witnesses as a make decisions on their qualifications to sit on the and the issue becomes when it's not evident in the records from the old record whether or not starr let me restate definitely when i'm doing the code when the cold record raises questions about the suit ability of that judge and that you're a potential juror to be fair and impartial juror it's understandable that the disquiet will give some discretion to the trial court to make decisions that are not although there was in fact greater questioning a rehabilitation question in there there's no language in our cases saying that that was required that there would have been relief granted had there not been the  them i don't i don't think that this is something that requires a bright line rule and i don't disagree with that but i think that the record has to show that there was sufficient questioning that would permit the court to make those and franc and i don't think that was the case here and the court the government relies on the initial questioning that was made of an ear when the court asked the multitude of qualifying questions when it brought each i think there were three groups so the st one was twenty five and there was fifteen and fifteen if i recall or something along those lines she had she had the page of questions that you go through you understand that you cannot draw any inference of g o p etc and one of those twenty questions  so was the question when you firmly put aside any feelings of prejudice sympathy etc and there was no affirmative statement from juror number thirty one that she would do that she was essentially i guess not in her head i think we were all doing our best to monitor that the issue becomes if if if you look at this entire why dear in its entirety judge lemon was was very attentive to this panel and she asked questions and i will to if you go through this this transcript masonically any juror that raised a response similar to that of journal or thirty one did judge granted our four cause objection said he made similar responses to juror number thirty one in the the court actually followed up and asked questions to rehab so this is the transcript the court let me ask one follow up question the idea and the reason for all these cases is we need to determine whether you can be fair and he says right in the course of so can you listen to what happens here in the courtroom and then make a determination whether or not the government has doubts if you observe this defendant the other reasonable doubt and he responds i feel like i should be yes i'm i'm just saying that if you look at the full transcript of the of the thing this is something that this just disc juror fell through the cracks of judge women's attention it because it's what happened she cheap she missed it because i thought i assure you she would have followed up was impartial has six a minute rights were were violated and that's why we ask that this be vacated remanded thank you all to both counsel for good argument the case