negligent leave or perhaps deliberately withheld necessary disclosures to allow him to prepare for trial and because of rove juror sabotaged deliberations in this case this case involves virtually all the protections guaranteed to criminal defendants by the fifth and sixth amendments there's been extensive briefing there's a lengthy trial record there are future excerpts of record so i'm not obviously going to be able to disclose everything few linearly without sounding like a tobacco auctioneer so what i'd like to do is just hit on the main points that i think really deserve the court's consideration and perhaps were not thoroughly enough to explain to the groups i want to turn first to the due process violation which i consider to be a very significant error here because obviously what we have to do to see if we have confidence in this verdict before we can uphold it first of all let me say that the legal standards that are before the court realistically for rule sixteen violation and a constitutional violation need very well be the same rule sixteen violation warrants reversal if one can prove deprivation of a substantial substantial right the constitutional violations obviously are substantial rights the question is only one of prejudice and i could admit that the prejudice here was ample i'd like to give the court a brief synopsis of the timeline here because i think that that really explains everything that happened the declarations are quite lengthy and they may perhaps be confusing if one was not actually there what happened in this case is that for two years during pretrial preparation both the defense and the prosecution purported to rely on a single expert mackoff sas whose testimony would not have inculpated the defendant may have tended to exculpate him she indicated that there was no gunshot residue in this case right on the eve of trial the government decided apparently having for the first time reviewed miss haas as a submissions because they didn't find a lot of discovery that they disclosed belatedly to the defense including the specifics of her swapping techniques that miss haas as his testimony was insufficient and then developed a series of disclosures which were at best sloppy and at worst intentionally deprive the defendant of due process the timeline as i have it is as follows on the twenty eighth of may just before trial about two months three months before trial the stipulation in period in which the sole discussion is of hof sas a month later the government first mentions they're going to send these test results out for mr dallal to go and re evaluate mr dow conducts the test results during a period of time which has of the a stipulation the government knew was reserved for the defense experts vacation there could have been no better opportunity crafted to deprive the defense expert of an opportunity to observe these tests when the defense expert gets back from his vacation of july only two or three weeks before trial is set to begin after the defense has pleaded for a continuance about a month before trial actually began defense counsel almost immediately moved to secure funding for the defen expert to do his own testing continuance requested at that point the continuance was requested at the july twenty third and was given until august twelfth and then august twenty sixth a continuance beyond that would have been fruitless what the defense did do is they attempted to move for sanctions in order to exclude mr gal's belated testimony once they were saddled with the hobson's choice of having to go forward with a trial perhaps without another court defense witness or to have a continuance defense counsel chose to go forward with trial but it's a hobson's choice because the government didn't disclose the necessary information to allow the defense meaningfully to prepare they sat on their file for at least two years without looking at it without apparently realizing for themselves that they had a bad case he needed to make it better then they attempted to make it better in precisely a way that would hamper the defense in preparing that but once you get past that i mean the remedy for that is for the insufficient because of the realities of trial practice and what actually happened the government dawdle in its disclosures even of mr gal's testing for a number of weeks they provided a skeletal report in late june they provided what they themselves admit  are legible copies in july and july twenty third by their admission this is the government's declaration they provided quotes legible copies were less than a month before trial and it's taken the government approximately two months to get this information to the defense the defense only has a month to get its stuff together defense counsel gets a letter from her expert that very day i mean obviously a one day turnaround this is what i need to do in order to go and go forward defense counsel and white sort of twenty one requests to the court rule that says you can't go forward and i'm sure the expert would not have gone forward without funding this is an expert it's quite expensive history too expensive lab analysis an independent laboratory she gets that request and on the third of september the judge sits on that request for another test firings involving four sam samples it takes at least overnight perhaps more for each of the sam samples to be sampled in a meaningful way he gets the first chance he gets the test out on the twenty first because he has to coordinate with that's the government's problem i mean they want him to come down to their range in this process was going to be present at the gun is in the custody of san francisco police he does the test results on the twenty first of august five or six days later he gets his first test results that's much more timely than the government did he is constantly even as the trial is going on trying to get more test results and the problem is is that the test results he has which practically prove mr coleman to be innocent simply couldn't be obtained until after the jury was to help you here is the question i have if the defense was aware that the prosecution was getting a different expert why did it have to wait for the results in order to if if the results in order for the defense expert to do additional tests well there was no need to have the defense expert test fire the weapon because the defense expert would have reasonably believed as did everybody that the evidence exculpated the defendant was not until mr della came forward with his report the future was a need for the defense expert to come forward and testify and do more tests in fact if you look at the record the defense expert first notifies defense counsel that he is troubled by the results enough to require new testing on the twenty third of july that's when the defense expert feels that there's a trigger for his own expertise to be employed before then he was working on a record that indicated that there was no evidence of gunshot  realistically it's apparently at the sanctions hearing and then the day after that they start talking about the fact that dow is going to be hard on the defense the report is actually given to the defense think i can't i think it's around july sixteenth by the it very clear in its order for the continuance that it was going to go no further than august twelfth and then there's colloquy at the beginning of the transcript that apparently the court found it convenient to go until august twenty sixth there was absolutely no way in which th court was going to go further with well if it correctly it would have been made on that they have trial are you know i calendar call or something that we're still not ready can we have an additional continuance and the judge has said no that would have been a clear  record in terms of whether or not a continuance was possible perhaps it would have been a clear record but the record now is clear enough you have government misconduct leading to a very evenly discovery of defense protest over and over and over again that the defense isn't ready request for sanctions to exclude the evidence for which the defense wasn't ready exploitation by the government of the fact that the defense wasn't ready and then at the end after it's too late proof that the defendant is probably innocent i mean you know the prosecution made hay of the fact that there was a test firing which was then immediately analyzed and that the real problem here is that they sure should have been left standing for several hours so that it would you click the squirming and the wiggling and the that after several hours of wearing the shirt that he wore after he test fired it mr barrett analyzed the sure and found that it still contain numerous quantities of particular unique particles in other words to get a first test in wh fired the gun there were according to dallas there were just a couple of unique particles more than offset by just a couple of unique particles barrett fires the gun there are tons of unique particles on it the prosecution tested and that's being analyzed and we'll have the results shortly but unfortunately those results don't come in until after the jury reaches its verdict those results are the results under circumstances which according to every question asked by the government duplicate the circumstances that issue show that any person who fired a gun under those circumstances would have had a ton of particles on it and there are and that result never gets before the jury and that sure it does have a ton of particles or not mr coleman sure which has only a few unique and distinct particles so my submission is that this verdict is the result of sandbagging the defense to which the defense object it in its the sandbagging that the defense has to object to in order to have this court grant really it doesn't really necessarily require that the continuance be denied although i submit the continuance would have been denied and we have a fallback argument on ineffective assistance in case the court is dissatisfied even with that the objectionable conduct here is the government's discovery violation and nothing more could have been done to preserve the record on that no counsel has to be put into a difficult position of going forward with possibly a theme or a witness missing because the continuance was granted or going forward without their expert but i don't think we even have to reach it there was a motion made to sanction the government for discovery violations that motion was denied well but that's not compelled i mean that's the trial judge that's kind of the last resort the remedy generally is to allow additional time for either party to prepare for whatever the new evidence is and i see them as the myth that the record reflects that the court said we're going to august twelfth grudgingly then the calendar got in the way we're going to august twenty sixth grudgingly don't even person mr coleman was his influence over jamaica perry the murder rate in oakland and how it's necessary to jail mr coleman in order to protect oakland all of that is extremely secure evidence brought in by these jurors beyond that there is significant evidence that this juror was actually biased some of that evidence is he under the rule six or six b because it doesn't occur during the jury's deliberations and it doesn't deal with issues that the juries were deliberating that's the statement she makes about the type of person this recall many isn't that she's sure he's a drug dealer and the necessity of cleaning up oakland there's also a comment made about her absolute belief in police officer's veracity and her comment that she couldn't be persuaded to triggers the court to bring the juror in for an inquiry and the court looked at these affidavits and said my gosh this rule which is designed to protect the integrity of the jury system by removing pressures on drivers they don't want to be william pan's jury they don't want to be impeached for having acquitted they don't want to have their verdict question that's why the rules they're it's a longstanding one what the judge should do is realize that there are other influences that can buffalo a into doing the wrong thing and that this influence may have been done here and the way to win why are into it just to give the lawyers a chance to question the juror did you lie or your when you said that you could be fear even if the witnesses were cops are you a to make the judge do what she should have done which is to have an evidentiary hearing at which evidence which is admissible under six or six b could have been a ask the judge to get admissible evidence and that doesn't sound right to me well it doesn't sound right to me that a verdict which is plainly questionable as a violation of the most fundamental of jury guarantees by a biased juror who appears to have lied on board here because i'm sure she was asked if she could be fair with police witnesses and i'm sure she said she could and he then goes and apparently says that she believes police officers no matter what they say it surely is not the case that this rule was designed to subvert the constitutional guarantee of a because i am pretty sure i'm right it is not admissible to impeach the verdict if you can't bring on a statement made during deliberations in order to impeach the verdict but you can bring forward evidence to the judge to trigger an inquiry which legitimate questions can be asked what purpose is to impeach the first line is you're speaking to impeach the version you can't do it by bringing in nothing more than statements from jurors about what happened during deliberations but there are many ways in which this germans warrants could have been examined without violating six and six b but the problem is in order for you to get there you have to give us that miserable evidence to use for you to or to twenty eight i certainly if this is of of consummate importance i can certainly give the court the citation well what this case is is there some jurors were writing to court in a carpool and one of them makes a racist remark the middle period after the jury's deliberated in a motion to a new trial because this will somehow shield the corrupt verdict from constitutional scrutiny and i say no he couldn't do so constitutionally with subvert the jury system it would violate confrontation officers hearing gunshots turns out upon inspection that object that was in front of mr coleman it was literally a smoking gun he now claims among other issues that his conviction should be reversed due to discovery submitted to the court approximately four months after the verdict the supreme court has held that allegations of german's conduct raise for the first time days weeks or months after the verdict quote seriously di that are even at miscible to impeach a verdict one is whether extraneous prejudicial information was brought to the jurors attention and whether outside improper outside influences were brought to bear on their decision police officers wouldn't lie that she thought defendant should be convicted to clean up the neighborhood that she thought the defendant had exploited his witness to make a perry that she tried to allegedly intimidate another juror that she refused to deliberate on the second days none of those relate to any kind of extrinsic evidence or information that wasn't part of the trial none of that refers to any outside influence and none of those can be he's just trying to get a hearing on whether or not this juror was impermissibly bias from the outset well i believe as this core pointed out one i haven't read the headley case it wasn't in the briefs and so i'm not particularly f off the top of my head i think this court is right the defense can't bring in inadmissible evidence for the court to consider for really any purpose there inadmissible moreover it really just allowing the defense to go on some kind of fishing and to encourage them to go on harassed or confront jurors after the trial in an effort to disrupt the very finality of the process that the tanner that the supreme court said in tanner should be discouraged and so i think it's there's no case that supports that six zero six and b cousin indicate that and there's strong policy reasons to prevent that moreover i think the only statements that are even arguably were the defendants the jurors statement that she was from ill you're with the defendant's open neighborhood and therefore she believes she was must be a drug dealer and the murder rate in oakland now is our contention and we don't go back on  and her opinion that he was a drug dealer based on that is simply that it's her opinion it's not based on any actual knowledge of the defendant moreover that what the murder rate was in oakland i think in some sense that there's a high murder rate in oakland that's pretty common knowledge among people who live in the bay area it's it's almost akin to saying housing prices are high in the bay area i mean it's a it's a it's a fact a pretty common knowledge and experience to people who live here but even putting that aside those statements are admissible think the district court was right and find there is no reasonable possibility that they could have affected the verdict and i could give you six reasons why that's so the first is the mil in that case one of the jurors have seen that defendant prior to the trial the defense in that case was charged with distributing marijuana and she told the other jurors that when she saw him he looked like a fat old pot smoking hippie the said that no reasonable possibility of prejudice in that case based on the fact that one it was only her opinion well now this case the jurors statement that defendant was a drug dealer can't be classified as anything more than as opinion because she didn't have any actual knowledge of the plan and unlike the juror in mel's who in fact had at least seen a defendant moreover the courts to while that statement didn't come in the jordan make that statement until after the jury had already received all of the evidence instructions in this case for the timing of it mitigate any prejudicial effect that's the same situation in terms of timing that we have in this case the court also recognizing that he said the other jurors ha that the district court looked at that in this case or that the mills court did that the second reason is the grotta meier case in that case the juror the defendant was convicted of raping his neighbor and the juror has said based on my expert not medical training i think the defendant is mentally ill i think she committed the crime because of his mental illness and i know that as part of sentencing he will receive mental health treatment now i think it's pretty clear that in that case the potential for prejudice and improper influence is even greater because the juror was doing it based on her expert knowledge and still the court said no i've just passed personal experience is an appropriate part of deliberations and that was reiterating something in hard vs burlington where they said we expect that jurors will bring their life experiences to bear on the facts in this case if the jurors asked her not medical knowledge saying that the defendant why the defendant committed the crime and that she knows this is not considered to cause reasonable possibility of prejudice and i don't think the jury sitting in this case that she thinks it's kind of is a drug dealer so that the streets need to be cleaned up and we consider as prejudicial either and in addition there's the timing of the statements i briefly tossed out that they came in after the evidence and instructions and even after the statements were made the jury indicated to the judge that they were not unanimous and it was only after read back of the officers testimony that they think then came back with a unanimous verdict direct relationship between the statements and the charges he wasn't charged with drug dealing mr coleman was in charge with any kind of violent murderous offense so even if those statements come in they don't they're not particularly relevant to whether or not he possessed the gun on the night in question and finally the jurors asking for a read back and the offers officers testimony indicates that they were properly focused on the evidence at trial and the plate this court in play relied on those kinds of factors to look at what the look at the defendant's papers of the district court there is no mention of your bias whatsoever in the opening motion and in the reply motion by us is still not raised as an independent basis she does mention the dean case but that's only in the cont bias and the defense never asked for the court to reconsider any of its ruling on the new trial motion on the basis of bias and then just secondly as this court's already pointed out whatever evidence of supposed consideration so i will now move on to the discovery issues again is this court's already acknowledged really relevant question is not whether the government turned over things too late but given that everything was turned over was the defendant prejudiced by the timing of it or did they get enough time to adequately prepare their defense so why would the prosecution turn over in that triple copy of the report well one i don't think that the government knew or either i don't know whether it was that they adequate time to prepare and so without going into that although i'm happy to if the court would like me to but it does seem a little that's just been a long time to get copies and you just have to think things  during all of that time until that motion was resolved and that's part of why there was just so so much time there do you think the government didn't realize that it's expert is really helping the defense no i think i think  characterization may be somewhat true which is to say that once it turned out that the evidence wasn't going to be very compelling a second expert was called in part to do further testing and to see if more evidence could be found one thing all three x four is basically agreed on was this kind of testing can only tell you so much no matter how many particles you find you're not going to be able to say the defendant fired the gun and any absence of particles you're not going to be able to say he definitely did not fire the gun there's many many factors which go into it and this kind of evidence can only tend to corroborate or discredit the particular story being told now in and whatever other protocol discovery was requested was and turned over on july twenty third so it may be that the government was gathering some of this other evidence to turn it all over together i'm not exactly sure about that it may be in  the government's opposition to the new trial motion the basis that the defense puts in there where the basis for the request is not more time for prepare based on the expert testimony but quote a personal emergency so the hesitation or disfigurements of granting for the continuance i think this court is right that the onus was on the defense to say no we still don't have enough time the circumstances are changed and to give the court at least the opportunity to determine whether tenth ok july tenth of two weeks before that this was after the initial disclosure of the doll report which was june twenty eighth but before an additional top piece came she told orally defense counsel that he thought expert saying i think i should do additional testing in light of the doubt the second the government's economic forecast and her request for funding so some of that delay needs to be quote squarely at the feet of defense coun activities and i still had a lot of gunshot residue on the shirt well the government's expert had testified that you can longer a shirt and particles will still edge here so i don't think there's much question that you can wear a shirt for an hour and particles might still  were fired the gun and the defendant which could account for some of that discrepancy for example that for was at the range indoors the defendant was outdoors that is the asper shot the gun with the gun straight out in front of him while stationary we don't know the defendant may very well been running up the street but as raise his right hand defendant was left handed whether different ammunition all of these factors which were brought out during cross examination shows that even had this evidence come in and it would not have been very said one of them said they would have expected to see more both of them agreed that the evidence didn't mean that the defendant necessarily part the gun it could have come from contamination or from being near someone else and that criminal defendant was prejudiced by the influence of racial bias in the jury room to ignore the evidence might very well offend fundamental fairness while we find persuasive those cases that have exempted evidence of racial prejudice from rule six or six b s dream incompetency doctrine we don't need not the site today whether or not or what extent the rule prohibits jury testimony concerning recent statements made during deliberations or in this case outside of the liberations but during the course of the trial that's the flavor of that case but let's go to the cases i bias as a guarantee of a defendant's right to an impartial jury smith versus phillips four fifty five us at two fifteen that's even absent a request by parties to question jurors and even absent of course failures who is party to question a biased or the terms of the intrinsic versus extinct evidence i think that we've basically rebutted most of what the government has said in its brief i would just indicate that once again these statements by this juror were not supported by any evidence that's what makes them extrinsic that doesn't save them from review and the fact is that they did have a direct bearing on the case because they gave a motive for mr coleman to have a gun and a motive for his chief witness to lie and so therefore they're significant now let me turn briefly could discovery issues basically the defendant including statements made by the defendant in his attempt to resist testing that's why the sure it is relevant and that's why that second test firing is relevant is the government's argument was well you didn't test the sure in which you were squirming around for an hour and that was the cross examination and the cross examination was telling because it didn't duplicate the circumstances of the case at bar what the government is doing is attempting to conceal that from you this was exculpatory evidence this tended to acquit yes the government's gunshot residue evidence was comparatively weak but the evidence that was received after the verdict was comparatively strong and yes it is true that we didn't that the defendant did not make a final motion to continue we've raised that as an inactive assistance of counsel argument counsel was in effect the government's position that the jury back issue was not raised in the district court yes i do it first of all i just quoted from my brief and i can open it again saying that it's the court's obligation it's the course of action to preserve a fair jury private i'm asking