[00:00:02] Speaker 04:
Good afternoon, your honors.

[00:00:03] Speaker 04:
May I take just one moment to get myself set up here?

[00:00:05] Speaker 04:
Of course.

[00:00:06] Speaker 04:
Thank you.

[00:00:27] Speaker 04:
Good afternoon.

[00:00:28] Speaker 04:
May it please the court, Kimberly Sandberg on behalf of Marcus McNeil.

[00:00:33] Speaker 04:
I would like to reserve three minutes of my time and I will watch the clock.

[00:00:38] Speaker 04:
Your Honor, Mr. McNeil's trial attorney was ineffective in several ways during his representation of McNeil.

[00:00:45] Speaker 04:
But trial counsel's most devastating failure was his failure to deal with this anonymous note.

[00:00:54] Speaker 04:
Trial counsel was unreasonable for failing to move pretrial in a pretrial motion in lemonade to exclude any reference to this anonymous note.

[00:01:04] Speaker 04:
And then trial counsel was even more unreasonable and deficient for failing to object during the state's opening when the state told the jury that the anonymous note said something that it did not say.

[00:01:19] Speaker 04:
told the jury that the anonymous note implicated Mr. McNeil in the shooting of the victim, where the note didn't say that at all.

[00:01:29] Speaker 04:
This deficient performance allowed this anonymous note to become a central part of Mr. McNeil's trial, even though the note itself was inadmissible.

[00:01:39] Speaker 02:
Counsel, wasn't there some indication in the record that defense counsel initially planned to introduce the note as part of the defense case?

[00:01:48] Speaker 02:
Yes.

[00:01:50] Speaker 02:
So how could it be ineffective assistance of counsel for him not to object to the reference to the note in the opening statement if he planned to introduce the note into evidence?

[00:02:06] Speaker 04:
Well, even if he did plan to introduce the notice evidence, and I agree with your honor, it does appear from the record that that was his original plan.

[00:02:15] Speaker 04:
It is still deficient performance and unreasonable to not object during the state's opening when the state is saying that the note says McNeil was responsible for the shooting.

[00:02:26] Speaker 04:
when the note doesn't say that at all.

[00:02:28] Speaker 04:
In fact, the note doesn't contain the word shooting.

[00:02:30] Speaker 04:
It doesn't contain a description of the victim.

[00:02:33] Speaker 04:
It contains a description of two unrelated people and says that McNeil was having an argument with them.

[00:02:42] Speaker 02:
Correct.

[00:02:42] Speaker 02:
But if the plan of the defense was to introduce the note, then couldn't it have been a legitimate strategy to just let the state make the misstatements and then prove the misstatements through the introduction of the note?

[00:02:56] Speaker 02:
which would reveal the actual contents.

[00:02:59] Speaker 02:
Why wouldn't that be a legitimate strategy?

[00:03:02] Speaker 04:
Because there could always be a situation where he couldn't get the note into evidence, where the state decided not to admit the note.

[00:03:11] Speaker 02:
He should have corrected... But that may be true, but that doesn't make it any less of a... The fact that the strategy might not have worked doesn't make it any less of a strategy if he planned to introduce it in any event.

[00:03:23] Speaker 04:
Even if he planned to introduce it, I believe that he should have corrected the state when they were saying something incorrect to the jury, because the state's statements during opening and closing carry such weight with the jury.

[00:03:36] Speaker 04:
And so for him to not stand up and object and say, that's not what the note says,

[00:03:42] Speaker 04:
the note says something entirely different was deficient performance.

[00:03:46] Speaker 04:
But even if his plan was to introduce this note and he thought maybe he would show the jury that the state had made a falsehood or whatever during opening statement, the fact that he then changed strategy halfway through the trial, defense counsel himself, and decided to now object

[00:04:05] Speaker 04:
to the admission of this anonymous note of itself was unreasonable after defense had allowed the state to mischaracterize the anonymous note.

[00:04:16] Speaker 01:
Let's assume that we agree with you that the Court of Appeals made an unreasonable determination of fact in saying that this was merely an overstatement.

[00:04:24] Speaker 01:
Can you talk about how we can know that there was actual prejudice here and that this would have actually changed the outcome of the verdict?

[00:04:32] Speaker 04:
Yes, I have two ways to answer that.

[00:04:35] Speaker 04:
The first is that looking at the jury's questions during deliberations shows that they were quite hung up on this anonymous note.

[00:04:44] Speaker 04:
They wanted to know if they could consider it, they wanted to know if they could see it, they wanted to know how detectives made Mr. McNeil a suspect, and so they were very concerned with this anonymous note during their deliberations.

[00:04:57] Speaker 04:
which leads to the inference that they were not sold on the state's case without this anonymous note, which makes sense.

[00:05:05] Speaker 04:
And my second point is that the state's case was not strong.

[00:05:07] Speaker 01:
Could you look at it the other way, which is the fact that they were asking this question indicated that they also kind of understood that the weight to give this information really should not be so great and that they considered it.

[00:05:22] Speaker 01:
They asked this question and ultimately that wasn't the basis on which they reached their verdict.

[00:05:27] Speaker 01:
I don't believe so, Your Honor.

[00:05:30] Speaker 04:
The jury's questions are pretty pointed on the anonymous note.

[00:05:37] Speaker 04:
They asked the court if they said the detective referred to it, can we consider it?

[00:05:42] Speaker 04:
The answer to their question was the jury is free to consider any and all testimony presented at trial.

[00:05:48] Speaker 04:
The detective's testimony was that based on this anonymous note,

[00:05:52] Speaker 04:
he made Mr. McNeil a suspect in the shooting of Duncan.

[00:05:56] Speaker 04:
Now how the detective got from the anonymous note to Mr. McNeil as a shooting suspect is beyond me.

[00:06:02] Speaker 04:
The anonymous note says nothing about the shooting of Mr. Duncan.

[00:06:07] Speaker 04:
The jury said, can we get a copy of the state's opening PowerPoint presentation?

[00:06:12] Speaker 04:
It's when the state talked about the anonymous note and said that it implicated Mr. McNeil in the shooting.

[00:06:20] Speaker 04:
And now the jury wants to see their PowerPoint presentation.

[00:06:25] Speaker 04:
And then finally, I'm sorry.

[00:06:27] Speaker 02:
The victim at trial identified your client as the shooter.

[00:06:34] Speaker 02:
So why did the anonymous note bring into question the verdict if we have an eyewitness, the victim himself, who identified Mr. McNeil as the shooter?

[00:06:48] Speaker 04:
It was not the best identification that the state could have hoped for.

[00:06:54] Speaker 04:
The state's evidence was really based on this one eyewitness identification of the victim.

[00:07:00] Speaker 04:
The victim was... The victim?

[00:07:03] Speaker 02:
There was an eyewitness identification of the victim you said?

[00:07:05] Speaker 04:
no, I'm sorry, the victim's eyewitness identification of Mr. McNeil.

[00:07:09] Speaker 04:
That was really the only evidence that the state had.

[00:07:12] Speaker 04:
There were no other witnesses to the shooting.

[00:07:14] Speaker 04:
There was no forensics.

[00:07:16] Speaker 04:
It was just Mr. Duncan's identification of Mr. McNeil.

[00:07:20] Speaker 04:
When officers arrived, Mr. Duncan told, now this is disputed throughout the record, but Mr. Duncan told the officer, the first officer to arrive, he said either it was a Hispanic male and a black male who shot me,

[00:07:34] Speaker 04:
or in the police report, it says that Mr. Duncan said it was a Hispanic male or a black male that shot me.

[00:07:42] Speaker 04:
So his very first indication to officers is that he wasn't quite sure which of this group of men shot him.

[00:07:49] Speaker 04:
It was also dark and he had been, he admitted to taking quote unquote booster pills and he had amphetamines in his tox report.

[00:07:58] Speaker 04:
It wasn't the best eyewitness identification.

[00:08:01] Speaker 02:
It was presented to the jury.

[00:08:02] Speaker 02:
Everything was presented to the jury.

[00:08:04] Speaker 02:
And apparently the jury, if this was, in your words, the only evidence that the prosecution had identifying McGill as the shooter, the jury apparently believed that testimony.

[00:08:17] Speaker 04:
I believe the jury was not ready to convict beyond a reasonable doubt without this anonymous note.

[00:08:24] Speaker 04:
The jury believed, because of what the state said, that the anonymous note was written by a second eyewitness identification.

[00:08:32] Speaker 04:
It was not.

[00:08:34] Speaker 04:
But that is what the jury believed on this record.

[00:08:37] Speaker 01:
Could you turn to the confrontation clause issue?

[00:08:41] Speaker 04:
Yes, Your Honor.

[00:08:49] Speaker 04:
Your honor, the way that this note was used during Mr. McNeil's trial is that it was used as a witness to the shooting, even though that's not actually what the anonymous note said.

[00:09:06] Speaker 04:
But the way the state used it during its opening statement and then the way the state questioned Detective Colon actually turned the note into an

[00:09:17] Speaker 04:
out of court witness to the shooting when in reality that's not actually what it was.

[00:09:25] Speaker 04:
And so the jury was left with the impression that there was a witness to the shooting that wasn't Mr. Duncan.

[00:09:34] Speaker 04:
There was no second witness to the shooting.

[00:09:36] Speaker 04:
And of course, the author of the anonymous note was never cross-examined and the jury never saw the contents of the anonymous note.

[00:09:51] Speaker 04:
Would Your Honors also like to hear about the Batson claim or should

[00:10:00] Speaker 04:
I reserve my time for you.

[00:10:02] Speaker 00:
I just have one clarifying question, which is it's not a Batson claim.

[00:10:06] Speaker 00:
It's a claim of ineffective assistance based on failure to make a Batson, which I think maybe makes a difference for how we analyze it.

[00:10:13] Speaker 04:
It does make a difference.

[00:10:13] Speaker 04:
Yes, Your Honor.

[00:10:15] Speaker 00:
And so maybe the question is, given that the trial court seems to have opined on the merits and said that it found that there was no intentional discrimination,

[00:10:28] Speaker 00:
I mean, isn't that fatal to the ineffectiveness claim?

[00:10:32] Speaker 00:
Because it suggested there would have been no prejudice from the failure to make the claim earlier if we in fact know that the court was going to reject the claim.

[00:10:41] Speaker 04:
I believe it's difficult to credit the trial court's decision that these were race neutral reasons for striking the jurors, because the jury had already been sworn in, and all of the people on the jury veneer had been dismissed.

[00:10:58] Speaker 04:
And the court even complained about that.

[00:10:59] Speaker 04:
When the attorney brought up the Batson challenge, the court said, I've already sworn the jury in.

[00:11:04] Speaker 04:
All those jurors have left.

[00:11:06] Speaker 04:
If I grant your Batson challenge now,

[00:11:09] Speaker 04:
there's no recourse.

[00:11:10] Speaker 04:
And then the court went on to say, I find the state's reasons race neutral.

[00:11:14] Speaker 04:
I don't know that we can credit that.

[00:11:16] Speaker 04:
Was the court really going to, at that point, grant the Batson challenge?

[00:11:20] Speaker 04:
And I also believe that looking at the comparative juror analysis, specifically of juror 102, it's clear that the state's reasons for striking her were pretextual.

[00:11:34] Speaker 04:
And if Your Honors have no other questions, I would like to reserve my time for a rebuttal.

[00:11:39] Speaker 02:
All right, Chancellor.

[00:11:40] Speaker 04:
Thank you.

[00:12:03] Speaker 03:
Good afternoon.

[00:12:04] Speaker 03:
It may please the court.

[00:12:05] Speaker 03:
Jeffrey Connor on behalf of the respondents.

[00:12:08] Speaker 03:
Before I dig into my argument, I just want to take a brief moment to express my gratitude and on behalf of the attorney general and my colleagues at the attorney general's office for allowing us and giving us the accommodation to move this argument today.

[00:12:22] Speaker 03:
based on some unforeseen circumstances with one of my colleagues and appreciate that very much and also to opposing counsel because I know this court puts a lot of work into preparing for these arguments.

[00:12:33] Speaker 03:
So we're very grateful that you provided this accommodation.

[00:12:38] Speaker 03:
There's, I think, a lot going on in this case for me to get up to speed on in a very short period of time.

[00:12:45] Speaker 03:
And so if the court has direction on anything it has questions that it would like me to address, I'd certainly welcome those.

[00:12:53] Speaker 03:
Otherwise, I will start by addressing the arguments that counsel made.

[00:12:57] Speaker 00:
I mean, I guess maybe you could start with the discussion of the note at opening the statement.

[00:13:05] Speaker 00:
Certainly.

[00:13:08] Speaker 00:
This whole note is rather curious in this case.

[00:13:14] Speaker 00:
The prosecutor gets up in opening statement and describes the note in a way that seems just obviously wrong.

[00:13:25] Speaker 00:
And quite apart from what defense counsel was or was not going to do with the note, I'm having trouble understanding why it would be reasonable for the defense counsel to let the prosecutor stand there and say, we have this note that's really inculcatory when in fact

[00:13:46] Speaker 00:
like the note is not as inculpatory and certainly not in the way that the prosecutor was saying it was.

[00:13:50] Speaker 00:
So can you address that?

[00:13:53] Speaker 03:
Certainly.

[00:13:53] Speaker 03:
I think the court's questions to my friend on the other side about that drive the point home on it would have absolutely, with counsel's initial trial strategy being that he was going to use that note to destroy the prosecutor's credibility by showing the jury that the prosecutor had

[00:14:16] Speaker 03:
misrepresented what was actually in that note.

[00:14:18] Speaker 03:
So I think that would absolutely have been a valid strategy for counsel to do that.

[00:14:24] Speaker 03:
And I think rolled into that, I would like to point out that I think my friend on the other side started to focus on counsel's subsequent decision to change strategy mid-trial.

[00:14:35] Speaker 03:
There isn't an ineffective assistance of counsel claim here addressing counsel's decision to change strategy.

[00:14:40] Speaker 03:
The ineffective assistance or the deficient performance that's alleged here is simply how counsel handled

[00:14:47] Speaker 03:
not filing a motion in Lemony and then not objecting to the statements during the opening statements.

[00:14:52] Speaker 00:
Right.

[00:14:53] Speaker 00:
But I mean, I totally agree it could be a reasonable strategy to let the prosecutor say this thing that's not true and then expose the fact that he was saying untrue things.

[00:15:06] Speaker 00:
But you have to actually do the exposing for that strategy to make any sense.

[00:15:10] Speaker 00:
And counsel didn't do that.

[00:15:12] Speaker 03:
But I mean, I think that's

[00:15:14] Speaker 03:
Exactly what Strickland talks about about not second-guessing based on hindsight is that you have to look at Council's decision-making at the time they made the decision.

[00:15:24] Speaker 03:
During opening statements, Council had the plan to use that note as part of his defense.

[00:15:30] Speaker 03:
something happened during the trial that caused him to change that.

[00:15:33] Speaker 03:
We know that because he did say on the record, I changed my mind.

[00:15:36] Speaker 03:
I'm not going to ask for that and I want to keep it out.

[00:15:39] Speaker 03:
There wasn't any development of that decision.

[00:15:42] Speaker 03:
That decision is not under review here because they haven't alleged that counsel was ineffective for changing his strategy mid-trial.

[00:15:51] Speaker 03:
And so you have to look at Council's decision based on what was known to Council at the time they made the decision.

[00:15:58] Speaker 03:
That's just standard Strickland analysis.

[00:16:01] Speaker 03:
You can't in hindsight look at Council's decision not to object because he later chose not to use

[00:16:08] Speaker 03:
the the the note to expose the prosecutor.

[00:16:14] Speaker 03:
So that's that's how it answer that I think also the court's questions about prejudice also come into play here that the jury was appropriately instructed that statements of counsel are not evidence.

[00:16:27] Speaker 03:
jurors are presumed to have followed their instructions.

[00:16:31] Speaker 03:
And I think that when you look at the evidence in this case, I somewhat disagree with my friend on the other side's representation that the only evidence was this eyewitness identification.

[00:16:46] Speaker 03:
Yes, he was the only person that identified the defendant, but you have,

[00:16:55] Speaker 03:
testimony from Rose Hensley where she was present when the officers showed up and she testified to overhearing Mr. Duncan say that he knew the assailant and that it was a black adult male.

[00:17:19] Speaker 03:
And so we have the prior incident where Mr. Duncan had confronted Mr. McNeil and other individuals.

[00:17:31] Speaker 03:
And that, you know, so I think that kind of corroborates all his identification there is the recognition that you've got somebody else who was present

[00:17:42] Speaker 03:
in the moments after this shooting occurred, who heard the victim say that he knew the defendant or didn't know him by name, but knew who he was and recognized him.

[00:17:56] Speaker 03:
And then that corroborates his subsequent identification of Mr. McNeil during the presentation of that six pack of photos for him to identify Mr. McNeil.

[00:18:10] Speaker 03:
So if there's no further questions on that, I can turn to addressing the confrontation issue.

[00:18:17] Speaker 03:
I think the confrontation issue is quite straightforward to me in the sense that there's a footnote in Crawford versus Washington that recognizes when even a testimonial statement is not presented for the truth of the matter asserted.

[00:18:36] Speaker 03:
that doesn't trigger the confrontation clause under Crawford.

[00:18:41] Speaker 03:
The second thing that I would point out here is the decision on whether or not a statement is testimonial or not under Crawford does not focus on how the statement is used at trial.

[00:18:53] Speaker 03:
That's the whole point of that footnote in Crawford.

[00:18:58] Speaker 03:
What drives whether or not something is a testimonial statement or not under Crawford and its progeny is the reason the statement was

[00:19:07] Speaker 03:
produced.

[00:19:09] Speaker 03:
And usually the main focus is like, was this like a police interrogation where they're trying to collect evidence that they're going to use at trial or something like that.

[00:19:19] Speaker 03:
What was the reasoning for the statement itself?

[00:19:24] Speaker 03:
And so why did the production of the statement itself, why did that happen?

[00:19:30] Speaker 03:
And so here, I don't think that this anonymous note that just happens to appear on a police car at the scene while the police are investigating the shooting is a testimonial statement under the primary source.

[00:19:44] Speaker 01:
Would you agree that the prosecutor's statements and the detective's testimony conveyed to the jury that the anonymous note said that Rock was the shooter?

[00:19:55] Speaker 03:
I don't agree with that.

[00:19:57] Speaker 01:
I think that both the federal district... How can you not interpret the statement, in the opening statement, that this anonymous note provided information that Rock was the shooter?

[00:20:14] Speaker 01:
How is that not conveying exactly... Understood.

[00:20:18] Speaker 03:
I understand your point, Your Honor, and how I would answer that is that, once again, the jury was appropriately instructed

[00:20:25] Speaker 03:
that statement from counsel.

[00:20:26] Speaker 01:
What I'm really getting to is whether or not it's testimonial.

[00:20:28] Speaker 01:
I'm not really asking about whether or not there was prejudice as a result.

[00:20:34] Speaker 01:
I'm asking to get to the point of whether or not it's a testimony.

[00:20:37] Speaker 03:
Whether or not it's testimonial.

[00:20:39] Speaker 03:
So this isn't a situation like

[00:20:44] Speaker 03:
The cases that I've I'm blanking on the names of the cases that are they're discussed in Ohio versus Clark and blanking on the names of those cases, but there are 2 to Crawford subsequent cases applying Crawford that were decided where one was deemed to be this is dealing with an emergency situation and that's not testimonial this.

[00:21:02] Speaker 01:
I mean, it kind of belies reason and logic that this reference to the note twice was not intended to convey this fact to the jury.

[00:21:13] Speaker 01:
I mean, otherwise, there's no point in including it and to discussing it.

[00:21:18] Speaker 01:
The idea was the reference to the note was to be able to establish that

[00:21:24] Speaker 01:
it pointed the investigation towards this individual.

[00:21:28] Speaker 03:
But that's exactly why it's not hearsay and fits into the footnote exception in Crawford about it wasn't being used to prove the truth of the matter asserted.

[00:21:45] Speaker 03:
It was being used to demonstrate why the investigation went the direction that it did.

[00:21:53] Speaker 03:
And so that's the ruling that the state court made here on the state evidentiary question was that this wasn't presented to prove the truth of the matter asserted.

[00:22:06] Speaker 03:
And so in that analysis, it doesn't.

[00:22:09] Speaker 01:
I mean, I think that the jury question sort of, this is where I think the jury question is maybe most relevant because it demonstrates that from the anonymous note,

[00:22:22] Speaker 01:
was interpreted to be testimony with respect to this individual.

[00:22:28] Speaker 03:
So I think that comes back to my point about the primary purpose rule that drives deciding whether something's testimonial or not.

[00:22:42] Speaker 03:
It's not how the jury's going to look at it.

[00:22:45] Speaker 03:
It was what's the purpose for creating the statement?

[00:22:50] Speaker 00:
Davis against Washington.

[00:22:51] Speaker 03:
Yes, that is what drives the decision making on whether something is testimonial or not, is the reason the statement was made, not how it's used at trial.

[00:23:05] Speaker 03:
And so how it's used at trial, I think, falls into the footnote from Crawford about if something is not used to prove the truth of the matter asserted, then it's not hearsay and that means it doesn't fall into the rule under Crawford.

[00:23:26] Speaker 03:
So I'll quickly also address the question about the IAC Batson claim.

[00:23:33] Speaker 03:
I think that goes directly to how I look at that.

[00:23:37] Speaker 03:
I don't think you even get to the merits of the Batson question because it is being raised in the IAC context about it being raised too late, but at the same time, it was actually ruled upon.

[00:23:49] Speaker 03:
I think if the appropriate way

[00:23:53] Speaker 03:
for Mr. McNeil to have gotten the merits of the bats in question before this court would have been for him to either raise it on direct appeal or to have raised a claim that appellate counsel was ineffective for failing to raise the bats in claim on direct appeal.

[00:24:10] Speaker 03:
Because we don't have a situation where the state court said your objection is untimely and I'm not going to consider it.

[00:24:19] Speaker 03:
And I'm not aware of any clearly established federal law that makes a timing requirement on Batson.

[00:24:28] Speaker 03:
Batson itself said, we're not going to do this.

[00:24:33] Speaker 03:
We're not going to set procedural requirements about when or how Batson has to be raised.

[00:24:39] Speaker 03:
And I think that's a recognition of, you know, federalism

[00:24:43] Speaker 03:
And so there might be different reasons why councils timing and raising a bats and challenge might might be later than sooner.

[00:24:55] Speaker 03:
And I think that's a situation that that.

[00:24:59] Speaker 03:
I think there needs to be flexibility there and when council raises the bats and challenge particularly considering prong one of the bats in inquiry and a defense attorney wanting to be certain that when they raise the bats and challenge that they're going to be able to get through prong one and force the state to present a race neutral justification.

[00:25:23] Speaker 03:
So unless there's any further questions about anything else in the briefing,

[00:25:29] Speaker 03:
I'm happy to sit down early and submit.

[00:25:32] Speaker 02:
It appears not.

[00:25:33] Speaker 02:
Thank you, Council.

[00:25:34] Speaker 02:
Thank you, Your Honor.

[00:25:45] Speaker 04:
Good afternoon again, Your Honors.

[00:25:48] Speaker 04:
Council's decision to not object during the state's opening is unreasonable precisely because trial strategy can change.

[00:25:58] Speaker 04:
He didn't know for certain that this anonymous note was going to be introduced to the jury and that the jury would get to see that the state, I'm going to use the word lie, that's a strong word, but wildly mischaracterized the contents of the note.

[00:26:11] Speaker 04:
He didn't know that.

[00:26:12] Speaker 04:
And in fact, strategy did change and therefore the jury never saw the note, which left

[00:26:20] Speaker 04:
and that's precisely because defense counsel didn't object when the state widely mischaracterized this note during their opening statement.

[00:26:30] Speaker 04:
It left the jury with the impression that this note was written by a second witness to the shooting who said McNeil shot Duncan.

[00:26:40] Speaker 04:
And yet then the jury never got to see the note and see what it actually said.

[00:26:45] Speaker 04:
And so his failure to object during opening is deficient performance, even if he had a strategy to introduce the note at trial because

[00:26:57] Speaker 04:
strategies can change and therefore it was deficient not to object.

[00:27:04] Speaker 04:
As to prejudice, whatever we think of Mr. Duncan's identification, whether it was strong, whether it was weak, we know the jury was concerned with this note.

[00:27:13] Speaker 04:
They asked, that's the only questions they asked during jury deliberations.

[00:27:17] Speaker 04:
They wanted to know if they could consider the note, if they could see the note.

[00:27:21] Speaker 04:
The way the state used the note at trial to your honor's point is to suggest that it was written by somebody who saw Mr. McNeil shoot Duncan, which of course it didn't.

[00:27:32] Speaker 04:
Without the anonymous note, there's a reasonable probability the outcome of this trial would have been different.

[00:27:38] Speaker 04:
And unless your honors have any questions, I will.

[00:27:42] Speaker 02:
It appears not.

[00:27:43] Speaker 02:
Thank you.

[00:27:44] Speaker 02:
Thank you to both counsels.

[00:27:45] Speaker 02:
Thank you.

[00:27:46] Speaker 02:
The case just argued is submitted for decision by the court that completes our calendar for today.

[00:27:51] Speaker 02:
We are recessed until 9.30 a.m.

[00:27:53] Speaker 02:
tomorrow morning.