[00:00:01] Speaker 02:
And we have our appellant's counsel, Mr. Tuck, by video.

[00:00:04] Speaker 02:
Can you hear us?

[00:00:05] Speaker 04:
I can.

[00:00:06] Speaker 04:
Thank you, Your Honor.

[00:00:07] Speaker 02:
Excellent.

[00:00:08] Speaker 02:
Go ahead.

[00:00:09] Speaker 04:
Yes.

[00:00:10] Speaker 04:
If the court pleases, Matthew, I'll talk appearing on behalf of the defendant appellant in this case, Geron Harris.

[00:00:15] Speaker 04:
And I would like to reserve two minutes for rebuttal, if I could.

[00:00:18] Speaker 04:
And I know the court is well familiar with the facts and the law in this case.

[00:00:24] Speaker 04:
belabor those points for the court, but as was brought out in the companion case, there is a significant issue here, a significant constitutional issue.

[00:00:38] Speaker 02:
Can I interrupt you?

[00:00:39] Speaker 02:
There's a point that I want to get your take on.

[00:00:42] Speaker 04:
Yes.

[00:00:44] Speaker 02:
Your opposing counsel says that Godoy doesn't apply because the Supreme Court distinguishes between jury tampering and jury bias.

[00:00:53] Speaker 02:
What is your response to that?

[00:00:55] Speaker 04:
I think they're both of a piece, Your Honor.

[00:00:58] Speaker 04:
I think it's very much the same thing.

[00:01:00] Speaker 04:
And it's maybe a distinction without a difference is the way to put it.

[00:01:05] Speaker 02:
We do have to, under EDPA, we do have to make sure it's clearly established violation.

[00:01:10] Speaker 02:
So what in the Supreme Court law tells us that there's no distinction there that makes that clear?

[00:01:15] Speaker 04:
Well, I think that has not really been addressed by the court, but the effect is the same when you think about it.

[00:01:23] Speaker 04:
If a juror is being tampered with and that juror then therefore becomes biased, that taints the jury deliberations just as a secret, almost in this case a secret spy in the jury who

[00:01:39] Speaker 02:
Well, even if we were to agree with you, and frankly I am inclined to agree with you, I don't understand why we would treat jury bias sort of less significantly than jury tampering.

[00:01:48] Speaker 02:
But nonetheless, under EDPA, that has to be clearly established.

[00:01:52] Speaker 04:
I agree, and I think in this case that it's certainly a significant constitutional right, and the problem in this case, as Your Honors pointed out in the prior argument, is that there was not a proper hearing conducted by the trial court in this case, and... Defiance counsel requests a hearing.

[00:02:16] Speaker 04:
Well, I think that, and I was not the trial counsel in this case.

[00:02:20] Speaker 01:
I understand that.

[00:02:20] Speaker 01:
It seems to me he specifically said it wasn't necessary.

[00:02:25] Speaker 04:
That I don't recall.

[00:02:26] Speaker 04:
I know that the hearing was requested, and I think the characterization is that it was sort of a hearing, whether they have a hearing or not.

[00:02:34] Speaker 04:
And, you know, it seemed like any time

[00:02:37] Speaker 04:
some kind of an allegation like this is made, an evidentiary hearing with witnesses is actually required where one or more likely all of the jurors would need to be questioned about what they heard, what went on in the deliberations.

[00:02:53] Speaker 04:
And in this case, unfortunately, the record is limited.

[00:02:56] Speaker 04:
There's only really two jury declarations.

[00:02:58] Speaker 04:
There's the one by juror number five who was

[00:03:00] Speaker 04:
The problem juror and juror number seven who overheard certain statements, juror number five minimized those statements.

[00:03:08] Speaker 04:
She adopted some of them but didn't adopt all of them, which again throws up more factual issues here that really needed to be resolved in an evidentiary hearing, I think, and for whatever reason was just not done.

[00:03:27] Speaker 03:
So let me ask the question I asked in the prior case.

[00:03:31] Speaker 03:
So what Supreme Court case should the California Court of Appeal looked at in order to understand that the kind of hearing that was held here was inadequate?

[00:03:41] Speaker 03:
It was not that there was a failure to hold a hearing.

[00:03:45] Speaker 03:
Your contention is that the hearing was inadequate.

[00:03:48] Speaker 03:
So what case do we look to the Supreme Court to tell us that?

[00:03:51] Speaker 04:
That's a good question.

[00:03:52] Speaker 04:
I don't know that there is a specific case on particularly juror bias that gives that guidance yet.

[00:03:59] Speaker 04:
Maybe this one will be the case.

[00:04:01] Speaker 04:
I don't know.

[00:04:01] Speaker 04:
But it seems to me that just the fundamental fairness of it requires that when you look at all of the other case law, for instance, that it really needs to be more of a substantive inquiry than the cursory one was done here.

[00:04:18] Speaker 03:
So what do you think is the best Supreme Court case for your, what's the case that you would like me to focus on?

[00:04:26] Speaker 04:
Good question.

[00:04:27] Speaker 04:
I suspect that, let me make sure I get this right.

[00:04:44] Speaker 04:
I think the Godot case, or I think I'm saying that right, that I think that... Godot is one of our cases.

[00:04:57] Speaker 03:
Do you have a Supreme Court case?

[00:04:59] Speaker 04:
I don't have a Supreme Court case that addresses this particular issue.

[00:05:04] Speaker 04:
I can certainly submit a supplemental brief to the court, but I'm not aware of one.

[00:05:10] Speaker 04:
I did not locate one that was on point in my research.

[00:05:22] Speaker 02:
Do you want to save your remaining time for rebuttal?

[00:05:24] Speaker 04:
Yes, I would.

[00:05:25] Speaker 04:
If the court has no more questions, then we would just ask that this court reverse the case and grant the habeas petition.

[00:05:41] Speaker 00:
May it please the court, Jonathan Klein, Deputy Attorney General for Respondent.

[00:05:45] Speaker 00:
It kind of feels like deja vu being up here again.

[00:05:48] Speaker 00:
So the Godoy case was mentioned again, and we really are constrained by what the law is.

[00:06:00] Speaker 00:
I cited to Tracy V. Palmatier in the earlier argument, and it's pretty clear where it says, Remmer's command that hearings are warranted in every case is unique to the tampering context.

[00:06:14] Speaker 00:
where the potential effect on the jury is severe.

[00:06:16] Speaker 00:
And I would also cite to another case, Sims v. Rowland, which says, Remmer provides little perspective guidance as to when a hearing is required or even appropriate.

[00:06:29] Speaker 00:
And if we look at Godoy, it is explicitly based on Remmer and Maddox.

[00:06:35] Speaker 00:
And in those cases, there was a kind of a strict command for an evidentiary hearing in the jury tampering context.

[00:06:44] Speaker 00:
There was also this presumption and burden shifting framework that it established.

[00:06:50] Speaker 02:
What was the fact pattern in Smith?

[00:06:52] Speaker 02:
I'm trying to remember.

[00:06:53] Speaker 02:
Was it a jury tampering fact pattern?

[00:06:55] Speaker 00:
You're talking about Smith v. Phillips?

[00:06:57] Speaker 00:
Yes.

[00:06:58] Speaker 00:
In that case, that was where a juror applied for a job at the DA's office during trial.

[00:07:06] Speaker 02:
So that's fairly analogous to this.

[00:07:08] Speaker 02:
I mean, not exactly the same, but it's not a tampering situation.

[00:07:11] Speaker 02:
It's a bias situation, like what we have.

[00:07:13] Speaker 02:
And in that case, again, the quote that I read before says, this court has long held that the remedy for allegations of juror partiality is a hearing.

[00:07:21] Speaker 02:
So I keep coming back to, why is there two strains, two paths here?

[00:07:30] Speaker 02:
Why do you think that there's two paths here?

[00:07:32] Speaker 02:
Because right after the quote that I just read out of Smith, it talks about Remmer.

[00:07:38] Speaker 02:
It seems like it's not limiting Remmer to just that context that you're arguing.

[00:07:42] Speaker 00:
Your honor brings up a very good question, but that is the state of the law.

[00:07:48] Speaker 02:
But Smith is part of the state of the law and you seem to be arguing around it.

[00:07:52] Speaker 00:
Well, I will address it directly in what this court has said.

[00:07:56] Speaker 00:
Again, in Tracy v. Palmatier, it says, Remmer and Smith, referring to Smith v. Phillips, do not stand for the proposition that any time evidence of juror bias comes to light, due process requires the trial court to question the jurors alleged to have bias.

[00:08:14] Speaker 00:
Neither case mandates a hearing whenever evidence of juror bias is raised.

[00:08:19] Speaker 02:
Right, which is why in the first case I started out by asking at what point in the analysis is the requirement for a hearing triggered?

[00:08:27] Speaker 02:
It's not going to be every single time there's a whiff of jury bias or jury tampering.

[00:08:32] Speaker 02:
There's got to be something there.

[00:08:33] Speaker 02:
Where is it?

[00:08:34] Speaker 02:
Like what is the standard that triggers the hearing requirement?

[00:08:38] Speaker 00:
Your Honor, I would go back to what this court said in Hibler v. Beneditti where it said, a state court's decision not to hold an evidentiary hearing does not render its fact-finding process unreasonable so long as the state court could have reasonably concluded that the evidence already induced was sufficient to resolve the factual question.

[00:09:00] Speaker 00:
So I think that's the analysis we're under.

[00:09:03] Speaker 00:
Was the evidence adduced at this type of hearing that the court held sufficient to resolve the factual question?

[00:09:12] Speaker 00:
And for the reasons I set forth in the preceding argument, I think the answer to that is yes.

[00:09:19] Speaker 00:
We have the case neutral explanation for why she omitted the information.

[00:09:24] Speaker 00:
More importantly, we have evidence of how she evaluated the evidence in this case, you know, quite fairly in that she rejected the testimony of a very key prosecution witness and she urged other jurors to reject it.

[00:09:41] Speaker 00:
She then acquitted one of the defendants of three counts and found the gang allegation not true as to him.

[00:09:47] Speaker 00:
That type of behavior just does not make any sense for someone who is biased against the defendants because they were gang members.

[00:09:56] Speaker 00:
So from what the court had before it, it could resolve the factual question as to whether the juror was biased.

[00:10:05] Speaker 00:
And one thing I neglected to bring up in the preceding argument, there is a little bit of a procedural issue.

[00:10:16] Speaker 00:
There are two claims floating around here.

[00:10:19] Speaker 00:
One is the substantive juror bias claim, and the other one is this procedural claim that we've been talking about, that there was a necessity to hold an evidentiary hearing.

[00:10:30] Speaker 00:
Those claims have been raised and resolved separately throughout this litigation.

[00:10:36] Speaker 00:
So Harris, actually the California Court of Appeal, found that he had forfeited that claim.

[00:10:43] Speaker 00:
So to the extent that he is raising a standalone claim that the failure to hold an evidentiary hearing was error, that claim has been procedurally defaulted.

[00:11:00] Speaker 00:
That was raised in district court.

[00:11:03] Speaker 00:
We argued procedural default.

[00:11:05] Speaker 00:
And Harris, in his opening brief in this court, did not talk about the procedural aspect.

[00:11:10] Speaker 00:
So we had no reason to reassert the procedural bar.

[00:11:14] Speaker 00:
He only focused on the substantive juror bias claim.

[00:11:18] Speaker 00:
And to be clear, the argument that I understand he and Council for Bishop are making is the one under D2 that the fact-finding procedure from the state was defective.

[00:11:31] Speaker 00:
And I think that argument is fair game, and I've addressed it.

[00:11:34] Speaker 00:
But I do want to make clear that to the extent either of these petitioners is raising a standalone argument,

[00:11:42] Speaker 00:
that the failure to hold an evidentiary hearing was constitutional error.

[00:11:47] Speaker 00:
In Harris's case, it's been procedurally defaulted.

[00:11:50] Speaker 00:
In Bishop's case, it was never raised in the California Court of Appeal, nor was it raised in district court.

[00:11:56] Speaker 00:
So it presents a myriad of procedural problems.

[00:12:00] Speaker 00:
But to reiterate, I understand that they are making the argument under D2.

[00:12:12] Speaker 00:
So I think I've covered everything that was in my notes.

[00:12:17] Speaker 00:
Unless the court has any further questions, a respondent would be asking for this court, respectfully asking for this court, to affirm the judgment of the district court.

[00:12:26] Speaker 02:
Thank you, counsel.

[00:12:27] Speaker 00:
Thank you.

[00:12:27] Speaker 02:
All right, you've got a couple minutes for rebuttal.

[00:12:32] Speaker 04:
Thank you, Your Honor.

[00:12:36] Speaker 04:
did take to heart the court's comments that not every case probably warrants an evidentiary hearing, and I would agree with that.

[00:12:42] Speaker 04:
If this were a contract case, the lies that Juror 5 committed and the obfuscations and even some of the other

[00:12:53] Speaker 04:
machinations she did probably wouldn't make that much of a difference.

[00:12:56] Speaker 04:
It's probably not relevant that she lied about being on the gang unit, that she used to be a former dispatcher and, you know, dispatched probably hundreds of thousands of officers to gang-related shootings and things like that.

[00:13:08] Speaker 04:
The problem is this is a murder case and it was a gang case, so that becomes absolutely relevant.

[00:13:15] Speaker 04:
The case law is pretty clear that, yes, we probably don't need an evidentiary hearing in every case, but when it directly impacts the issues that are before the court and men being raised by the defense,

[00:13:28] Speaker 04:
I think the court has to have some kind of an evidentiary hearing and a meaningful one with witnesses and actual testimony, not just trial by affidavit, which is kind of what happened in this case, that the court was satisfied and then just sort of moved on.

[00:13:44] Speaker 04:
But I think something much more substantial is required, and we would ask that the district court be reversed.

[00:13:50] Speaker 03:
Counsel, I have one last question.

[00:13:52] Speaker 03:
Did you file for certiorari from the California procedures?

[00:13:58] Speaker 04:
Not at this point.

[00:14:00] Speaker 03:
Well, your time for filing is probably long gone, right?

[00:14:03] Speaker 04:
Yeah.

[00:14:05] Speaker 03:
You can file from any decision we issue, but nobody's not certiorari from the California.

[00:14:12] Speaker 03:
Not at this point, Your Honor.

[00:14:13] Speaker 03:
All right, thank you.

[00:14:14] Speaker 01:
I would like to focus your attention on what the California Court of Appeals said about basically your last, the argument before Judge Bybee's question, which is the California Court of Appeals did make the observation that

[00:14:27] Speaker 01:
Your predecessor counsel had forfeited by not requesting an evidentiary hearing, but went on to say, there's no basis in what's been argued to us by your predecessor to think an evidentiary hearing was necessary.

[00:14:41] Speaker 01:
It was willing to accept the proposition that she deliberately misstated or hid facts which the court observed could have been drawn out with further voir dire.

[00:14:54] Speaker 01:
but said there wasn't a showing of what an evidentiary hearing would have produced.

[00:15:00] Speaker 01:
Now, we can speculate as to what discovery might have been obtained, but we're stuck with the state court record.

[00:15:09] Speaker 01:
What was incorrect or what was a clear violation of federal law in that statement?

[00:15:17] Speaker 04:
Well, the course point is well taken.

[00:15:18] Speaker 04:
I think that once the issue is raised, I think it triggers more of an inquiry than what was done here.

[00:15:27] Speaker 04:
And certainly, when the alleged bias goes directly to the heart of the case, and when it's a capital crime case, this is a murder case, that more of an inquiry needed to be made.

[00:15:41] Speaker 04:
And again, it was clear that this juror had lied.

[00:15:46] Speaker 04:
how much she lied, I think, was what needed to be explored in the end of the evidentiary hearing.

[00:15:51] Speaker 04:
And unfortunately, they just kind of sat on the bare record that was made, which was, I think, grossly inadequate in this case.

[00:15:59] Speaker 04:
And my client was certainly entitled to more of an inquiry there.

[00:16:03] Speaker 04:
And once this issue was raised, whether or not the prior counsel, and I can't speak to his motivations or his strategy there,

[00:16:12] Speaker 04:
Once that was raised the court should have said okay.

[00:16:15] Speaker 04:
We're going to move beyond this we're going to do we're going to do an actual hearing and That just wasn't done because I mean it is a substantive right here.

[00:16:25] Speaker 04:
It's the right to a trial by jury which was directly impacted and compromised here

[00:16:33] Speaker 02:
It doesn't look like there are any further questions, so thank you counsel the matter of hold on I don't my sheet again Harris versus the California Department of Corrections is submitted.

[00:16:43] Speaker 02:
We thank you for your argument.

[00:16:44] Speaker 04:
Thank you