-: 1-3-2, in the matter of-
-: Okay. Attorney Lana, when you're ready.
-: Good morning, Madame chief justice.
And may it please the court, I'm Lisa Lana
on behalf of the appellant juvenile.
The infection of racism on a jury is one of the most
significant violations of the right to a fair trial
into our system of justice.
Two years ago, this court recognized this
and challenged trial judges to root out any bias
in our courtrooms.
The juvenile respectfully urges the court to hold fast in
its recognition and condemnation of racial and ethnic bias
in our courts.
Fair trial rights must not turn on how eloquent a person is
in raising a concern.
As the amici stated succinctly on page six of its brief,
adequate investigation must happen
no matter who first raises the concern
or how clearly or ambiguously they articulate it.
Starting with the standard of review,
the juvenile asked this court to hold trial judges
must conduct a threshold inquiry at the first
suggestion of potential bias on the jury
and that failure to do so is non-waivable structural error.
The juvenile agrees with the amici's arguments about the
standard that was recently articulated
by the Washington Supreme court,
and I think it's State v. Bear if I'm pronouncing it
correctly, and as well as the amici's reasoning
for why such a rule is not only appropriate,
but necessary.
Justice Cypher: Counsel, can I ask you,
what do you think the questioning should look like?
How should the judge have proceeded in this case
to determine that,
without crossing over the line of invading the province
of jury deliberations?
-: Sure, your honor.
I think in this case,
the questioning actually could have been very, very simple.
Once the foreperson raised,
that there were a lot of discriminating comments
among the group,
the judge simply needed to stop and ask and clarify,
are you talking about some sort of discrimination?
And from there,
the case law is clear about the further inquiry that the
judge can make.
But the judge was,
should have just asked a simple follow up question.
In some cases it might require a slightly,
slightly more clarification,
but here I think that was all that was needed.
And I don't think a simple question such as,
'are you talking about discrimination',
opens the door for delving too far into
the deliberative process.
If the juror foreperson says no,
then the inquiry of status should be satisfied.
The judge can then make a determination.
If the foreperson says yes,
then the judge can continue that inquiry
consistent with the case law.
Justice Lowy: But I think we might be skipping a step
in all this, at least from Commonwealth's perspective,
because the word she used,
obviously I believe that the misuse of the word doesn't
matter.
But,
the judge arguably didn't credit what she was saying.
Didn't credit that there was discrimination going on in the
deliberations.
The judge seemed to feel that it was not a sincere statement
because the judge had been dealing with this juror,
and the best the judge could a lot of other juror issues,
but this juror for a while,
and had the belief arguably,
that this was just another attempt to
not be part of this deliberating jury.
So right or wrong, isn't that the first step?
-: So I have a couple thoughts on that, your honor.
So first, findings must be based on facts,
credibility findings.
So the judge should have first made the inquiry in order to
make a credibility deter- determination, based on the facts.
He didn't have the information that he needed
to make that credibility determination.
This is an issue of fundamental fairness and the reliability
of the fact finding process.
The judge indicated in his follow up conversation with the
prosecutor,
the prosecutor noted that the foreperson had said,
there's discriminating comments being thrown out,
I don't know what she means.
The judge agreed, I have no idea.
He did come back to say that the judge didn't think she felt
sincere with the concern she expressed.
However, again, that follow up question was necessary
in order for the judge to have the information,
to make a,
an appropriate credibility determination.
And I would just note the appeals court address this issue.
The judge may have been understandably skeptical of the
foreperson's motives,
but the fact that the foreperson may have wanted to be
excused does not mean that the comments were not made.
Both can be true.
So it would suggest that the judge abused his discretion
in his finding of his dismissal of her concern
without inquiring as to what she meant by that.
-: [Justice Wendlandt] And what is our standard of review
on that?
Abuse of discretion in the finding? Or clear error?
What are you suggesting?
Attorney Lana: So I think that the standard,
my understanding is, that I don't think there's a change in
the standard of review as to a finding of credibility.
That, I think it's the judge simply has to have
all of the facts.
So it is an abuse of discretion, in this case,
for the judge to have dismissed her
without further clarifying.
However, given the importance of the racial issue
at play here,
the juvenile is urging this court to find that it is
when there is a suggestion of racial bias or ethnic bias
in the jury, that at that point,
the judge does need to conduct simply just a threshold
preliminary inquiry in order to determine
whether that is in fact,
what is being, the concern that is being raised
and then go into the questioning that is outlined
in the case law.
-: [Justice Wendlandt] And what in your estimation,
in the transcript suggests racial discrimination.
-: So I think a couple things.
I think the meaning of, the foreperson said discriminating
and the Commonwealth points to a dictionary definition
of that. I wouldn't-
-: [Justice Wendlandt] Say we get beyond that.
Attorney Lana: Okay.
-: And say, it's, it is discriminatory.
Attorney Lana: Yes.
So I think that it is a reasonable inference.
If we're talking about discrimination,
given my client has, Hispanic is in the record.
I think it's a reasonable inference that the foreperson
could have been talking about racial or ethnic
discrimination.
If we were talking about a person with disabilities
that could have been the reasonable inference here.
I think it's actually,
I think that really is the only inference.
There's no other,
no other type of discrimination
on the facts of this case that the foreperson
could have been talking about.
-: [Justice Wendlandt] Why?
Because the client, your client is Hispanic?
Attorney Lana: Yes.
And I think also because as I discussed in my briefing,
as I think the amici discuss even more clearly,
race is something that can be difficult
for people to bring up.
And this needs to be viewed through the lens of implicit
bias, what we all know about implicit bias.
And the word discrimination doesn't have any meaning.
There's, or discriminatory, there's no meaning here,
unless-
Justice Lowy: Isn't it explicit bias
if it's discriminatory?
Attorney Lana: Well, I think it's both at play here.
There's explicit bias,
but I'm talking about the interpretation
of the foreperson's concern needs to be viewed through a
lens of implicit bias in-
Justice Georges: Why?
Attorney Lana: It-
Justice Georges: Because back to
Justice Wendlandt's point,
there's nothing to inform what she meant.
It could have been, I don't know the racial,
I don't know the composition of the jury,
but she could have certainly been saying
that maybe they're not listening to me because I'm a woman.
Attorney Lana: That's true.
-: I mean, we don't, why do we have to infer
where you're landing?
-: Well, again, this goes back to,
the juvenile is suggesting that when
there's a suggestion of this,
that that is where it's the responsibility of the judge
to make that further inquiry.
If the judge had asked that question,
then we would know here.
And I think the language in the Washington Supreme court
case that the amici addressed is actually right on point.
This Washington case did the hard work for the court here,
I think.
There's at 1178, the Washington Supreme court says
that the judge should conduct further inquiry
if there's a possibility that racial bias was a factor.
Possibility.
And then it goes on to say that
the standard is whether the evidence taken as true,
permits an inference that an objective observer,
who is aware of the influence of implicit bias
could view race as a factor. That's at 1182.
Justice Georges: If you could, could you remind me again
because I don't have it at my fingertips,
what was the evidence in that case?
In the Washington case. That the court said
warranted further inquiry by the trial judge?
Because my memory is,
it was a lot more than we have here.
-: Your honor, I, to be Frank, the facts are escaping me.
I think that it was something explicitly stated here,
but I think that was a post verdict issue.
Actually, I think if I'm remembering correctly,
it was, a juror came in, contacted defense counsel after,
and she was the only, she identified as African American,
she was the only African American on a jury where the
defendant was also African American.
And she raised the issue of feeling targeted.
I don't remember the exact language.
But I think your honor,
if I'm interpreting your question correctly,
I think the issue is,
if there's any suggestion of racial bias,
whether it's against the defendant,
whether it's someone on the jury,
whether it's something on the public,
everyone has an interest in verdicts and trials
that are free from racial bias and-
Justice Cypher: And so you would be saying this whether,
even if she wasn't referring to race,
but perhaps it was a discriminatory comment
based on the sex and age of the juvenile?
Because in terms of young kids, young males is what they do.
-: I would, your honor.
Well, any protected class, any protected class.
-: Have to be in a protected class.
Attorney Lana: That's, that's what I would suggest.
-: Okay.
Justice Lowy: Going back to when you were quoting
from the Washington Supreme court,
they said in your quote 'taken as true'.
So the Washington Supreme court also has this
threshold step of whether or not the judge,
having been there, observing this juror
over the course of time,
is taking what is said as true.
They don't want the inquiry about possible bias
unless the concern is 'taken as true' to use your quote.
-: Your honor, I think the taken as true there
is saying is for the purposes of the threshold inquiry,
accepting that the statements were in fact made.
Not, that the statements that the juror, the foreperson
in this case was raising.
Justice Lowy: Exactly, no, exactly.
-: And the judge doesn't have any way to know that
until he asks, what are you talking about?
The judge has to have the information this goes back to,
and I would point to the Williams case.
It's not about racial bias,
but it does talk about needing to make findings,
credibility determinations based on the facts.
Justice Gaziano: I think one of the problems we have is
that, you obviously ask us to find structural error
because there's no objection.
And we have a judge who made a finding
and it would've been a lot better if the judge had said,
what do you mean by discrimination, right?
I mean, that's the obvious point.
But you're asking us to jump to structural error
without us knowing whether there was error
because of the judge's, I guess,
half-hearted credibility determination.
-: I think I am your honor.
I think because of the importance of the issue.
-: I don't disagree with you on the importance of the issue.
The question is procedurally, you know,
structural error's a big deal, as it should be.
And I don't know how else you can quantify this,
if not by structural error,
because how do you measure prejudice, right?
Attorney Lana: Exactly.
-: And I think that's the point the Washington court made.
So I'm just wondering, how do we get there to, I guess,
parrot what Justice Lowy is saying,
where we don't have the facts.
-: I think that just goes back to your honor,
that this is the responsibility of the judge.
This is beyond defense counsel. This is the court.
The trial judge has the obligation
on behalf of the public and our entire justice system
to inquire and to ensure that juries are free from bias.
This is in the grand scheme of things,
a small step for the judge to take that one extra case.
I'm not minimizing the, what, I've never been a trial judge.
I can't imagine everything that goes into managing,
especially through, as we discussed,
a lot of jury issues on this case.
However, as a appeals court stated,
once this juror brought up,
once the foreperson brought up the issue
of discriminating comments, the landscape changed.
At that point, he had, it was a very small,
further follow up question, threshold inquiry for.
Justice Lowy: Let's talk about the very small,
further inquiry.
First of all, I mean, this judge seems to have shown
tremendous patience and court management.
Attorney Lana: Absolutely.
-: And I agree with Justice Gaziano, it would've been better
to have asked the question, but we tell judges,
be careful. Interrupt jurors.
Don't let them talk in any way about what's going on
in the jury room, unless.
So if this judge doesn't credit what's being said,
and maybe you're gonna be right,
that there's not enough facts in the case to support that.
But if that's what the judge,
then the judge's gotta be very careful.
We're always cautioning judges, interrupt.
Don't let 'em talk about deliberations.
Now absolutely, if there's evidence of racial,
ethnic discrimination, gender, then that's different,
but we really have to take seriously that threshold inquiry
considering our reticence to have the judge listening to
what was being discussed at deliberations.
-: Absolutely. May I answer?
I agree with your honor.
And I think the judge did do that here.
He was very careful and he prefaced this conversation with
the foreperson.
This is the second time that she approached him to raise an
issue.
He prefaced it by here are the things that you can talk
about.
And I would suggest that the fact that the foreperson
brought this up, the discriminating comments,
despite the fact that he said only talk to me about your
time for your personal issues.
I would suggest that that was her trying to explain to the
judge, there is something big going on in the jury room.
And
at that point, the judge was on sufficient notice.
And I think there's evidence in the record by his follow up
conversation with counsel at sidebar about it,
it appears to be a combination of things.
I don't know what she means by discriminating comments.
At that point, he was on sufficient notice
that we're talking about some sort of discrimination
and we're outside the realm of the deliberative process.
And there is case law, including Williams,
that talks about how a judge can go into that.
And again,
there are situations where that will be a fine line.
I don't think here would have been,
just asking a simple, straightforward question.
Are you talking about discrimination, would not have opened
the door to delving into deliberative process.
So just in closing, the juvenile and the public are entitled
to a verdict from a fair, attentive and unbiased jury.
The expectation that the juvenile ask the court to make here
amounts to the essential strong medicine against racial bias
in our jury, our jury system.
If there are no further questions.
-: Okay, let me just ask. Justice Kafker?
Very much.
-: Thank you, your honor.
-: Okay. Attorney Delatour.
-: Good morning, your honors.
May it please the court, Monica Delatour
on behalf of the Commonwealth.
I'd also like to acknowledge the trial prosecutor,
Michael Glennon, who's watching via the live stream.
We are respectfully requesting this court to affirm the
defendant's convictions and the findings of delinquency as
well.
I think turning to this issue, I think what's important here
is the context of how this comment came about.
And when that's taken into account,
it's clear that there was no error that had occurred here
and the judge not stepping in and asking about the
deliberative, deliberating process, excuse me,
where the judge appropriately found that that statement was
and her concern, discredited, excuse me,
the juror's foreperson statement.
And there's no indication at all that this comment
referred to racial or ethnic.
Justice Budd: Wait, wait, wait.
So are you saying that it would not have been better
for the judge to have just clarified
what it was that the juror was trying to explain?
-: I think in hindsight, we could say that it
would be better, but there was nothing here that would've
triggered that inquiry.
Justice Budd: What about the comment
that there's discriminating things going on?
-: And there's nothing in terms of that comment,
nothing related to ethnic or racial bias,
that required the judge to go further.
-: There are few things that trigger a trial judge
and get your blood pressure going.
One is a juror saying there's discrimination in the jury.
Isn't that enough to trigger a question?
Commonwealth: Well, I don't think that was a statement
that was here.
The statement is discriminating comments among us.
I think it's important to recognize that 45 minutes earlier,
when the foreperson had come in front of the judge,
she had stated that they were dominating comments among us.
We're not gonna reach a decision.
We're not gonna reach a unanimous decision.
And then 45 minutes later, this comment happens.
-: Usual stuff is that we can't, we don't agree, right?
That's the usual stuff.
But then when the juror throws in,
there's discriminating comments,
you're saying it would've been better, but you're not-
you're saying it's not error for the judge to have said,
what do you mean by that?
-: That's correct.
I'm saying there was not anything within that statement
to trigger further inquiry.
I would note that the judge does sort of-
-: What does the juror have to say?
There's racial bias? There's racial comments?
There's ethnic comments?
-: I don't know if there would be a particular phrase that
would trigger the inquiry.
I think there needs to be more here.
There needs to be a basis for discriminating
if we're gonna take it a step further and say it's
discriminatory and then take it a step further,
there's a basis for that as well.
Justice Budd: But that's the point of the question.
Justice Georges: I think that's the point.
Justice Budd: Right.
Justice Georges: Because I'm going to hit you
with the same thing that I did your fellow counsel.
Because of that earlier statement,
the one 45 minutes before,
and this is the same point we made the first time around,
it could have been something completely untethered to
anything that had to do with race.
It could have been based on the comment 45 minutes before,
that they were being disrespectful and discriminatory toward
her, in her views about what's going on
with the deliberation process.
So if you take those two, wouldn't that really make the
circumstance that the judge has to inquire and say,
what could it be? Is it something personal to you?
Or is it something that is directed toward the juvenile?
-: I don't think that there needs to have been a further
inquiry.
I do think that the judge appropriately,
at the beginning of his discussion with the foreperson
at this point had stated that she could only discuss
personal matters in regards to her.
And this is going back in terms of the context here about
her trying to be relieved of jury duty and coming the
following Monday.
Preface it by saying that she couldn't talk about the
deliberations at that time.
But I think.
-: [Justice Wendlandt- Counsel, she says,
it's just my work obligations.
And I can't be on this jury, on this case.
There's a lot of discrimin-
discriminating comments among us,
a lot of discriminating comments among the group.
So she's indicating I have work obligations,
but in addition,
there's discriminating comments
and you're suggesting that the judge should not have asked
a further follow up question,
that it wasn't error not to do so?
Commonwealth: Yeah, that's, but,
-: What legal authority are you resting upon there?
-: So the fact that the judge cannot step in
and ask questions about deliberations,
unless there's a clear report of bias, like racial bias.
-: Where is that support for that? Were there?
The law requires the juror to use specific words other than
discriminating?
Because as I looked up discriminating,
just to find out what it's plain ordinary meaning,
English being my second language,
the second definition that pops up in Merriam Webster is
discriminatory.
So here we have the plain and ordinary meaning of
discriminating being discriminatory
and the judge being unnoticed that this is what the
foreperson is for a second time asking to speak to him
about.
-: I think in comparison to the other cases that discuss
pre-verdict concerns regarding racial bias,
so cases like Tavares and Quiles and Heart,
in comparison to the situation that is here,
granted there was an inquiry in those cases,
those cases have,
it's clear that there was a report of racial bias,
a report that there was extraneous prejudicial
information at that time.
And we just don't have that here.
-: [Justice Wendlandt] And going back to Justice Georges'
point, isn't that the problem?
Isn't that precisely the problem?
That we don't have in the record enough to determine
whether she's talking about you know,
people not respecting each other's views
or she's talking about racial bias.
-: I don't believe so and particularly where the judge
found that her concerns were not sincere.
So again, there's nothing to trigger the judge
to go further, but in this situation
where the judge found the foreperson's concern
not to be sincere, we're risking a situation
where we're requiring a further inquiry on a relatively thin
foundation.
-: They have to be separated though.
I mean, they have to be separated.
If she says there's discrimination going on in the court,
in the jury room, that is enough to trigger an inquiry.
It seems, if it's credited.
Commonwealth: If it's credited, I would agree.
-: So I think you can't just put these two issues together
because you seem to be saying, no,
the judge shouldn't inquire here because there wasn't enough
to constitute a question. I mean, clearly there's enough.
If she's credited, then she's saying there's discrimination
in the jury room, that's enough to inquire.
So the threshold question is,
and I don't know the answer to this.
I don't know the record well enough.
Was there enough to credit his apparent determination
that the statement wasn't sincere?
-: I believe that there was, again with the context here,
the foreperson coming 45 minutes beforehand,
stating that she,
there wasn't gonna be a unanimous decision.
The judge recollecting that she had potentially a work
conflict and then coming back 45 minutes later
and saying the same thing.
And again, just to be clear that the judge is able to
assess her demeanor and conduct at that time
in terms of this ambiguous comment that was given.
So I do believe that this record reflects,
is sufficient to find, I shouldn't say sufficient,
excuse me,
is there's a finding effect that's sufficient here that
supports the judge's finding that she wasn't credible.
Justice Budd: Didn't he say, didn't she say though,
that she didn't know what she was talking about?
She didn't know.
The judge said, I don't know what she's talking about either
or something like that.
Commonwealth: That does happen later.
So after the, sort of in between the discussion with the
foreperson and the finding that her concerns were not
sincere, the prosecutor is the one who had stated that he,
she, excuse me,
he didn't know what the foreperson was discussing.
The court said that he did not have an idea as well.
He said he doesn't, yes, that's correct.
Justice Budd: Right, so the judge will,
did not know what the foreperson,
foreperson was talking about,
which you would think that at that point
in order to find out, you would have to,
there'd have to be a question put to the foreperson.
Commonwealth: I don't believe so
because he then says that her concerns aren't sincere.
-: [Justice Wendlandt] But did he talk to her again
after he says, I have no idea what she meant
by discriminating comments?
-: Not in terms of this talk.
She, she comes back out for him to tell her that
she needs to come back the following Monday.
-: So he says, I don't know what discriminating comments
means, takes no additional evidence and then concludes,
I don't think she's sincere.
Is that the record if I look at it?
Commonwealth: That's correct.
-: Okay. So there's no additional,
after he says, I have no idea.
Commonwealth: There's no additional conversation
with her on that day regarding this topic.
He just brings her back to have, instructs her,
that she has to come back on the following Monday.
The foreperson has,
there's a few different questions that have been submitted
after this point.
There's two, question three and question four,
but there's no other discussion about coming back to work on
Monday or discriminating comments or anything of that
nature.
-: So given that record, you know, what do we do?
Why would we defer to the judge's credibility call on the
discriminating comments,
not actually being discriminatory?
-: Well, I think again,
we have a situation where the judge can assess her demeanor,
to assess the conduct that she's exhibiting at that time,
in order to find that her concerns aren't credible.
And again, I think requiring a further inquiry
on such a thin foundation would risk interfering
with deliberations.
I don't think this is a small step here in terms of asking
further.
Justice Gaziano: You say thin foundation.
Would you agree with me that when a juror says there's
discriminate, discriminatory comment,
that that's a potential extraneous influence on the jury?
Commonwealth: In terms of discriminatory, to be clear,
that's different than the comment that was here.
It's discriminating comments and not discriminatory
comments.
Justice Gaziano: Difference between those two phrases
please?
-: Well, I think the discriminatory may be a little bit
more explicit in terms of there being a basis,
but I don't think either one of them requires an inquiry.
And I think-
Justice Gaziano: I'm missing you on the differences,
but put that aside.
Is it an extraneous influence?
-: I don't believe that there, that is enough on its own
to say that there's an extraneous influence on the jury
without further-
Justice Georges: Racial bias? You don't think so?
-: If there was a comment that there was racial bias in the
jury room,
I would think that would be enough to have a further
inquiry, but we're not there in this case.
Justice Gaziano: As the juror doesn't explain what type
of discrimination, therefore,
it's not an extraneous influence?
That's your position?
-: Excuse me.
-: I don't believe the statement of discriminating comments
on its own is enough.
And I think the cases regarding pre-verdict discussion
about racial bias,
understanding that they do have inquiries,
show that there needs to be a clear report of that
extraneous prejudicial information.
So for example, cases like Tavares and Quiles and Heart.
Justice Gaziano: So she had to have said what type of
discrimination for, to reach that threshold for you?
Commonwealth: I think it needs to have been further,
than just discriminating comments.
I don't think that's enough on its own.
And again, I do think it's sort of paired into
the finding of credibility that the judge makes as well.
Justice Kafker: Can I ask a question?
Justice Budd: Of course.
Justice Kafker: I have a question about lack of
objection.
Justice Budd: About what?
Justice Gaziano: Lack of objection.
Justice Kafker: Lack of objection.
Because, there's no objection from defense counsel.
(inaudible)
-: I don't know if it would be clear,
I believe it's still up to the judge's discretion.
But as you note, there was no objection here.
And in fact, on the Monday,
there's a discussion between the prosecutor
and the defense counsel with the judge
about whether they should have an inquiry about what is
going on with the jury and the defense counsel
doesn't want to.
He says discuss, or he requests having the
Tuey Rodriguez charge at that point.
Justice Kafker: That's what I'm trying to (inaudible).
Commonwealth: Yes. I agree with that.
Justice Kafker: So how would we then (inaudible)
Commonwealth: So, I think the analysis would be first,
whether or not the error has been waived
and then would be analysis as a substantial risk of a
miscarriage of justice. I understand.
Justice Kafker: Isn't it clear (inaudible)
Commonwealth: That's correct.
Justice Kafker: (inaudible)
Commonwealth: Again, I think the analysis
is still a substantial risk of a miscarriage of justice,
understanding that-
Justice Kafker: (inaudible)
Commonwealth: I think that there needs to be a
determination of waiver first,
but I do agree that it'd be difficult to say that
racial bias would not result in substantial risk of a
miscarriage of justice.
But again, the Commonwealth position here
is that there is an error where there isn't anything to
indicate racial bias.
There's no reliable report regarding racial bias.
And the statement was made again in the context of the
juror trying to be excused from serving on a jury
and the judge found her concerns to be insincere.
Justice Lowy: I guess the question,
the question really is when you have a waiver situation
and say it's a public trial, there's a way to show,
although it would be difficult,
that there could be a substantial risk what happened in the
courtroom when the public wasn't there.
Here, if you have error and it's structural error
and there's waiver, and then you drop down the substantial
risk.
I think what Justice Kafker is saying is,
doesn't the very error constitute substantial risk.
-: I think it would be difficult to say that that error would
not constitute substantial risk of miscarriage of justice
when we're discussing racial bias within a jury.
I think it'd be certainly more difficult than a situation
where the lack of an open courtroom.
But the Commonwealth position, again,
I think even before the lack of error,
the fact that this statement by the juror about
discriminating comments,
isn't enough to trigger an inquiry where there's no
indication of racial bias.
And really the only way to get to reach that point
would be for the judge to interject
and ask if it was based on race.
Justice Georges: Chief, would you mind
if I just ask one follow up question?
Justice Budd: Sure. No problem.
Justice Georges: Counsel, I just need to,
'cause I don't have a clear answer of what your,
the Commonwealth's position on this,
but if the judge is having a conversation with the
prosecutor that he hasn't any idea what the juror means by
what she complained of,
how can we say the credibility analysis is at all
meaningful?
-: So I think again,
where the judge has the juror in front of them,
can assess their demeanor and assess their credibility.
We have a situation where she had already come up to the
judge 45 minutes beforehand
and stated that she has concerned about dominating comments
and that they weren't going to reach a unanimous verdict.
With all of that context, I think that finding is
appropriate that her concerns were not sincere.
-: And so we should just disregard the judge's words when he
said, I don't know what she's talking about.
-: I don't think it should be disregarded,
particularly where right after that point,
he says that he finds that she's not sincere.
And again, in that situation,
the defendant didn't ask for further inquiry at that time
as well.
Justice Georges: Okay. Thank you. Thank you, chief.
Justice Budd: Thank you.