if i understand jeffrey so your question correctly is the question one of could control the the state of california for whom these individuals state of california  state of california or production was to sort through them and came from the california highway patrol and these are not the individual officers that themselves maintain control of of the documents all  all the materials come from the state of california these would be the california highway patrol judge their judge credibility he came out with a certain answer and i don't see how you can go behind that i want us to judge your credibility because so it's always more credible and so on so i understand  whole bunch of conversations going on at the same time it was noise the trial was over and people said and thought lots of things and i just can't find the way you want me to i mean i don't know how we second guess that well the wind through i mean i watched what happened exactly the whole bunch of conversations going on and people were saying this and that and maybe somebody actually thought well they should have known that he would favor the police and that comes out then as being something they heard rather than something that they themselves thought two responses to that justice run are i think that is what judge lawson at the district level honor it in brief directly ties because all of the evidence issues will kind of band back together however hollenhorst claim to the court what during the most neutral proceeding that was at that time that he was given access to the sheriff's department well he had access to the sheriff's department's records of course initially but it was at that time that he took the testimony at trial it was my belief that there could be additional photographs that would prove enlightening to the jury and indeed i was advised of the booking photograph it was at that time that i came across it's of the two twenty five in a smaller form it was blown up maybe want to have two times for ease of juror viewing but my entire intent there was simply to show the jury and impeachment that the truth of the plaintiff's testimony was frankly not established that is that he was not bleeding profusely at the jail that he was not pummeled and beaten nearly to death by officer collins and it was based on those reasons that i sought to introduce the booking photograph exhibit two twenty five i want to add that at no time was that pho h in the possession of the defendants it was at all times in possession of the riggs i counted sheriff's department the photograph was obtained by me during trial approximately one week before it was introduced  trial discovery of course was long since expired and the only discovery requests that i believe this part of the record in evidence here is the request on officer collins and there's no evidence to support the argument that officer collins ever possessed or of the right with us that photograph nor is there any evidence that there was a protocol by the california highway patrol that would allow them to go to the sheriff's department or require them to go to the sheriff's department to secure that photograph and responding to a discovery request with regard to the alteration of the photograph your honor let me make clear that the district court found that there was absolutely no foul play there was no evidence and there was none in the record that there were changes in the program actually dr lacky my understanding was going to testify as to the little impact on the jury that the color red had but there of course was no evidence of the color red if you will being or marking him as a dangerous felon or as a criminal moreover the just for court caution the jury that the jury is not to consider whether or not the color red has any bearing moreover we have the photographs that were also marked as exhibit and introduced without objection that display or depict the plaintiff moments after the arrest at the hospital with recognize and i believe it does that the district court went to great pains to understand the evidence re support and support the motion for new trial on that basis there were three hearings two at the denture e me one are clearly differences as to what people heard but the most important issue is that mr chavez came forward seven months after the trial he was involved in a hallway environment there were pockets of conversation admitted lately he was not speaking directly to mr holland horse although he heard his mouth move and there were a number of individual speaking with mr hall horse at the same time so there was a number there were a number of things going on in the hallway at that time and this was not probably the most impartial  during these discussions i'm not certain or certainly no evidence to the fact that he is the most impartial but he doesn't have based on the evidence in the record any interest in the case but i do find it important significance to it and bring it to the attention of the court or bring to the attention of mr miller now that's something that i haven't addressed but thinking about the case i certainly think not as a criticism of mr chavez but i think it's important because we have to analyze and this report indeed did analyze it in this way statements were made testimony was had and there were a number of things going on at various times and when you look at mr hall a horse the fact that he was a law student or awaiting bar results his father was a fourth dca justice court of appeal just as the fact that he was a prospective lawyer if the course pass the bar the fact that he repeatedly categorically denied having a bias in favor of law enforcement either actually in favor or not against the law enforcement so he was basically of the opinion and when it came time to actually understanding that this was being imputed to him he was very adamant in his tone that he had never before and never had had a bias either in favor of law enforcement or against law enforcement and that he would have brought that up during voir dire questioning so i do not see based on this record either considering the statement that chavez attributes to mr h horse or the statement that mr miller and miss lee attribute to mr court wouldn't let that evidence come in and indeed when an expert testified make mention of that during the testimony  the jury that they were not to consider it and yet we do have testimony by hollinghurst that he he was aware of appeal code section one forty eight and it was an issue in the trial and he was also the foreman of the jury and i can't help that question whether his knowledge and his honor a couple thoughts there were no questions during voir dire regarding one forty eight in the many openings that counsel provided to the jury there was no mention of one forty eight it is understood that mr hall and horse had dealt with one forty eight in the past while he was a clerk at the d a s office who testified that he trial clearly one forty eight was an issue a trial because at trial the fact of the penal code section came out that indeed this was a case where an officer collins had arrested mr macgregor for a penal code section one thirty violation so that information certainly came out although he had worked on a couple one forty eight in his tenure the d a s office i did not know at the time of wired year that one forty eight or penal code section one forty eight was going to be at issue did not make that connection during voir dire and even if he had he did not entertain a bias either in favor or against law enforcement and the one issue that i think speaks to this or the piece of evidence that i think speaks of this  is that mr holland horse testified at the second evidentiary hearing on the most new trial a jury misconduct that he had been involved and three or four one forty eight and that he had at one time decided based on his conversations with the police officer involved the charge not to charge the one forty eight because he didn't believe that there was sufficient evidence to go forward so i think that that assisted the district court in its evalu as as to the issue and in particular with regard to mr holland horse these of the mr chavez and then mr miller and mostly that was really the issue of whether or not the statements occurred and it was the just reports finding this matter because the question is whether he was dishonest in responding to avoid your question in such a way as to indicate bias may not be your answer but that may be one of your answers but the question i mean what she's asking you is not having to do with my dear but rather knowledge that he had in his head that may have tainted his role as he drew her or it could have been you know extensive evidence in his mind the driver points out one of the prongs to this whole analysis is that there has to be a showing that there was a dishonest statement or response to a material question posed during voir dire that frankly has not been established but to go to deliberation whatever mr holland horse put together in his mind based on the evidence and what he took to the deliberation there is no evidence to suggest that he at any time harbored a bias in favor of law enforcement there is no evidence of that and so what we're left with is speculation and i encourage the court to of course look at what the district judge in a twenty nine page ruling determined was in fact not juror bias in his opinion and as this court knows there has to be a showing of clear air a firm and definite conviction on this court's part that a mistake has been made and the showing frankly has not been made mr holland horse came in and testified twice once in january once at the second eviden hearing a believe it was in may and convinced the court based on his demeanor based on his responses to the questions that he did not harbor a bias in favor of law enforcement the quote the statement that is attributed to him by mr miller miss lee with regard to the one forty eight issue i think is problematic by virtue of the fact that mr miller and mislead of course are advocates for the plaintiff but in addition when you look at their declarations the statements by chemical inclose and yet mr miller didn't know morea lies that statement until about three days or so before he filed the motion for a new trial about a month after he heard the statement testifies that she took down the statement and wrote it into or typed in injury computer about a week after the statement was made and yet notwithstanding the fact that on cross examination she says well i didn't really hear it that way she to