where there was a juror who was angry at the system and one might say well these at the end it was probably more likely for the defendant but it's something where the when the defense could gamble there was actually something that could be done against the state it's different than again case where you have again defending you metcalf all right so you're really asking us to offer an automatic reverse right that you don't have to really show prejudice well we have two arguments one of that is one of them i want the others on the facts and i think it's important to court opinion as follows the rule requiring contemporaneous objections to the qualifications of jurors is well founded it serves to minimize the incentive to sandbag in the hope of an acquittal and if unsuccessful mount o in a different direction is but let's put it this way i mean if if using your terms going in a different direction if we don't go in a different direction from met here and employ the contemporaneous objection as far as sandbagging goes we basically talked about the fact that it isn't per se reversible error you know under frontenac so i'm i'm wondering what's less well i mean as far as sars approaches what's left is that this is that is that this is a case that could have gone the other way with an unbiased with an unbiased jury particularly with a harrowing account where there was a written  that really there's a federal consensus that this cannot be considered the same reasonable probability test and there's at least probably eight or nine states that i decided to and so if this bush reconsider it that's one good reason because the law has really wanted a different direction the judge is in the same position so so there's no suicide but it's no different than any than any other strickland issue sometimes for complicity judge in a tough spot but it's no different for this case and eventually case or a prosecutor misconduct case or a one pro state sure this isn't the jury's going to be fair you know he was angry about what happened and when when when it was a relative or friend or what was it was a victim i think and but but but it was possible is a gamble when a juror says under oath i cannot fulfill six circuit makes another point to defend the constitution just doesn't guarantee a jury just a jury trial it guarantees and i think an impartial jury trial defense counsel can no more waive an impartial jury than they can waive a jury whether or not defendant can show that his counsel was deficient in his performance and second whether or not a defendant can show prejudice and this court mentioned this issue is governed by metcalf it's right and the difference is your honor this jerk issues these are beis issues come up in several different contexts the first contacts would be something like that where the defendant makes a for cause challenge and what this court indicated and implied in my calf and i think the utah court says more explicitly is if there's some reason you can look to the record to justify why defense counsel might want this person on the jury as justice carmen was alluding to in her questioning then you defer to defense counsel even in those situations here as we mention our brief this defend this juror was someone with an international background which was unique to all the other members of the panel and all the other ranier members and he had had a couple of speeding tickets and basically this was a no win case for the defense attorney he was faced with a situation where there was overwhelming evidence of guilt and his only possible hail mary strategy basically was to try to convince jurors that his client didn't live at sunset court despite telling the police officers that he did it despite the fact that he was going in and out of that house selling drugs basically using it as a warehouse to sell instruments so in this unique circumstance this issue of well i was registered as a sex offender came up so no even if this court held that this juror one sixty five was actually biased and wasn't equivocal in the bias against such offenders then as long as there's something in the record to justify it you wouldn't say that counsel is deficient in striking it sure but again because this is just raised in a strickland analysis case even if you disagreed with the state's position on the performance problem as to whether or not this was a reasonable strategy the court would still have to review the president's problem and as this court held and make half then the court would look to the strength of the trial evidence which as you mentioned here is overwhelming police officers were sold cocaine by this defendant who went in and out of the house at sunset or in order to obtain a cocaine  i think it's important to know that this was a unique factual situation because this issue of this status is expected to come up and i think it's fair to say that almost everyone is biased against sex offenders except for perhaps family members of sex offenders or sex offenders themselves so the determination for defense counsel was how do i get the least five people possible against sex offenders on this panel so he struck in his initial the first six pack he was faced with a few  that he had kids at home and he would be concerned about the sex offense but he would try to treat them equally but he did have kids at home and he would be concerned and then jerk one twenty six i was also str the first group of six panel members who had also said that he had two girls at home and he would be on guard and could not guarantee that he would not be biased so the strategy here seems to be definitely straight someone who's been a police officer and done drug busts and also straight anyone who's got expressed a concern about having kids at home and automatically assumed that a sex offense in someone's past mean meant that they were a danger to children so that it was forced with facing the second six pack  general one sixty five was one of the next six people called to initially fill that panel when filling the panel right after questioning juror one sixty five there was excuse me too much more problematic jurors came up immediately after one sixty five juror one twenty eight said he had a big problem or she had a big problem with sex offenders right away off the bat she said that she could not be impartial she has daughters and has a grandson and she couldn't even presume that the person would be innocent  the defense counsel then also question juror one twenty four who said that as soon as she found out about the sex offense her opinion of the defendant dropped dramatically and that if the evidence was fifty fifty she would have to lean towards a guilty verdict thus expressing an unwillingness to even follow the basic judge's directions so he defense counsel was faced with your one sixty five who had equivocated and said on one hand he could be fair and said on the other hand you c meant he'd already exercise five current theories and he still had three more seats to fill in the jury plus an alternate and he only had two remaining primaries in that situation is not an unreasonable exercise of defense counsel skills to decide to hold on to those two remaining crim producing case more people came up who had exercised who demonstrated concern because they had kids at home his reasonable trial strategy from the record we can glean was straight people who had kids at home and said that were concerned about sex offenses as a matter of caution about their children and that is a very personal sounding bias where is juror one sixty five had equivocated had said he could be fair and that even when he was saying that he could not be fair he was just saying it in the hypothetical he wasn't saying that he had any personal experience with sex offenders or they had children at home that he had to watch out for so i know those unique factual circumstances it is reasonable for a defense counsel to allow someone like her one sixty five to come through and this court should not just go ahead and assume bias in that circumstance but even if this court felt that it was deficient performance you would still have to analyze prejudice under the normal reasonable probability standard of strickland and here there was as i mentioned overwhelming evidence of guilt and it's important to know that this court's been called the points to hit a moving target a little bit in the p e defense counsel asked this court directly to overturn metcalf and specifically hold the trial courts have a suicide want to duty in these circumstances to act and defense counsel then in his briefing here at oral argument  said he's not asking this court to overturn that calf in light of the fact that he's just raising a stricklin analysis then it's important for this war to just apply this normal stricklin analysis and even if you did disagree with the state's position on basically form a new test or simply say that yes according to this trial evidence he can  answer one of your questions by saying that the concerns and speaks preston metcalf regarding whether or not a defense attorney can poison the well and get a second bite at the apple  number one did not happen here and number two you should really be concerned because they never happened of course that reasoning would directly over and over half the response so number one it didn't happen here what we just don't know i'm not certainly going to impugn the defense counsel in this case i don't know what his intention was i think he just felt like this was a less concerning jerk than some of the other ones he was facing and he only had two printers left with more seats the fill so it was a strategic decision but the reasoning in mcafee of course in this courts this isn't in this case apply wholesale to all cases going forward and if we did hold that a defendant defense attorneys actions like this would be presumed to be prejudicial then they could get two bites of the apple by saying ok i'll go ahead and let the i have a no win case there's no possibility that i'm going to convince a jury otherwise that this person is not a been in possession of cocaine and wasn't in possession of heroin and so with nothing to lose essentially i'll go ahead in the well and allow someone like this to come on the panel and then get  a manic reversal saul try for turn all of patients here in this first trial and if that doesn't work i get the automatic appeal automatic reversal in a new trial we're going to try to get in with another jury that of course shouldn't be the way the system works important we're just not going to assume that and i would never the impartial jury which is right say the constitution isn't is just as important as conflict of interest another point i want to make is that  other jurisdictions disagreed and it's not just the some other jurisdictions disagree it's a federal consensus every federal court that's considered this issue and i would certainly argue every state court has given more than two paragraphs to it would it be with our side  the third point is this farce last forever number one corner glasper saying that if if we knew there was a biased or in this case we would not hesitate to reverse that's exactly what we have here and the last point i would make oh that's very briefly  that counsel said this case was unique and we feel this case is unique but for a different reason there is no neither is neither side is it will one case in point were jurors specifically said that he in illinois cases during church he specifically said that he could