the jury's verdict required no motion by the defender the jury was given a verdict sheet that contained three options there were sixteen capital counts elect sixteen or make sixteen decisions on appellants exposure to a sentence of death the jury was st given the option of determining by unitas vote that sleep and i the jury said no to that option on sixteen occasions and finally the jury was presented with this option after due deliberation simply is a fact that is part and parcel of the case that the jury did know that and then as a matter of law i want to be sure we are on the same page on that the federal death penalty act of   was not unanimous on the issue of punishment our the result would be that a the sentencing function reverted to the trial judge who could impose any sentence but not dea to request that the judge terminate deliberations and impose a life sentence and as the supreme court noted in saturday and itself what that involves is the court has a motion from a party applies a rule of law to a certain set of facts that are presented and the judge makes a legal decision as to what the result would be verdict on punishment that any seven already governed so are taking to its extreme you would have eleven for the more severe penalty and one hold before you conclude that how how could that be a jury determination of voluntary decision for life if you have eleven who are for death but the way the statute works is nothing they can do but that's the way the statute was written by congress and that's not my say or that's not even something that's a matter of argument it's what the united states supreme court said in jones this is more congress thought the point of sad is and was that you do not have a jury finding a little at that point at the point in sad as it is that it was not a jury decision and the difference in this case is that it absolutely is a jury's decision a jury reporting in a federal death penalty case we are only able to come to a unanimous verdict as they did in this case and when the verdict was announced in this case well except that the judge had given one of the things that is unusual not unusual this is a purty unusual situation or to say the least but one of the things that is that has chiller to this case is that the trial judge gave to the jury the authority to determine if they were not unanimous so long as they did not reach that conclusion without having complied with the instruction to deliberate and so there was nothing further is that the defense in that case sword in the struction in a texas federal capital case that if the jury was not unanimous the court would sentence a defendant to a term of life time imprisonment of the trial there would simply be a mistrial and another penalty phase and therefore the instruction was not correct and the supreme court rejected that saying that that's a final determination that there is no m there is no additional proceedings that can take place it is simply the end of jeopardy the end of the road so far as the defendants exposure to a sentence of death and that's what happened in this case the jury returned its decision the jury was asked each member in these terms ladies and gentlemen is that your verdict and every member of the jury responded that that was in fact their verdict meaning that's what they believe that they had agreed to as members of the jury perhaps if you pointed to an individual sure eight great i don't know i would have to know what other death penalty cases where they did in their verdict forms i don't know if other cases in other jurisdictions they had that language which is not necessary to option three so i don't know if this is unique just have that knowledge throughout the whole trial but yet they could not agree at the end of the day whether that was the sentence that should be imposed all they're saying is we know what's going to happen but we can't agree if that's right or if that's what should happen but that's not an acquittal of all you may they may be saying that i think that goes back to the earlier hypothetical where you have one hundred and eleven way and one the other way that maybe what you're saying with they may be saying is this is a compromise some of us see some of the underlying facts one way some see it the other way the verdict that we want is life they want to be what they're saying then they would have chose option two because that's where they would have  and i thought i thought no way when it's option to say option two is we the jury but you're not in this decision vote for life right so what i'm positing here is that we may not all agree on all of the factors but we know what the consequences are so we unanimously choose option three we don't know what they're saying what we do has a saying we're not is that we can't agree what sentence should be well that's the  sentence of option three and then they're saying what and we have knowledge that what's going on was of course the one version is there's nothing we can do about it those of us who would rather have the death penalty imposed there's nothing we can do about it but we know that's what's going to happen or they might be saying we acknowledge it and this is the result that we vote for you know when i'm asleep we're voting for option three which is we can't decide  us but even if well no we shouldn't be trying to guess the jury's meeting because the jury told  knew no one sometimes they told us we cannot agree whether death or whether it should be life and that's a hung jury the same as out of that it's a jury that cannot whether it's ninety three for life eleven to one for god whether they send out a note or put it in a in a verdict form it's the same it's a hung jury we cannot make a decision therefore we're not equating the defendant of death which is necessary in order for tippi to attach and that did not happen here so in satyrs in which i in that particular cases i understand the fundamental ruling is that you know when you get a reversal of the conviction that allows for a retrial and there has not and a separate determination by the jury with respect to the punishment side of it there hasn't been a unanimous verdict there's no jeopardy that attaches to that nd part of the of the of the trial in this  case correct me if i'm wrong didn't the case go back because there was a structural error there and a closure of the courtroom yes that was the reason for the reversal was the effect of closure of the courtroom so  what i'm worried about or one of the things i'm worried about with respect to your position is if the defendant is put through a procedure a process in which there is there is a structural error like that not something to do with the trial itself that might go to guilt or innocence or the fundamental fairness but things that go to sort of the american system of trials they and then they find out at the end that they they were not given a true american trial but because they got life imprisonment look at the hobson's choice they have now i can't go back and actually have you know i for example if they they were convicted in front of a kangaroo court but didn't know it when they find that out they have to put death back on the table themselves and i find that very troubling you have a response to that i see the court's point it's more of a a due process argument that having the stuff you know literally hanging over his head doesn't it doesn't it give more weight to that in this circumstance language understanding what will happen and agreeing that that's what should happen are two different things if they agreed that that's what should happen they would have chose option number two  have all there saying in option three as we understand what the court's going to do not that we agree with it what they're saying is we can't agree whether that should be the punishment unanimously we agree that we can agree therefore as your honor said with the fans council there was no result there was no decision by this jury as to punishment whatsoever it was didn't choose one they didn't choose to they didn't choose anything and therefore jeopardy did not attach to this case and therefore the dish report made the correct decision want to deny the defense motion on double jeopardy in prison and then was disputing that that they were aware from the very beginning of this trial what would happen if they could not come to an agreement but again that does not mean t they did it would it chose number two it would have said we knew was going to happen and we agree it should happen we think that is the right sentence and therefore we're choosing option to buy you not in this verdict that is the sense that should be imposed but they didn't do that they said we can't decide if you will converts this to a jury's verdict he's the only options and we're not going to get out of one of these trials without a verdict in some in some respect no  thompson asked earlier and i'd like to follow up on that i believe you said that the judge could have had the authority to impose a lesser sentence than what was imposed correct except in this case the judge took that off the tables of the jury was operating under a set of instructions really in the end really did know what the outcome would be and so why can't we say that that rd option here really is the jury voting for the rd option the only choice the judge gave them other words there may even be an argument that you had i don't know who would get to make the argument i guess you that if the judge had imposed a lesser sente violating his own instructions right and then we we don't know what the jury really had in mind yes evolving is on the structure and i don't know if there's a remedy for that and for the government but again simply knowing what was going to happen they had the opportunity to say and we agreed but they didn't he said we don't just hold this but we still cannot agree that that should be the appropriate sentence in this case and i'd like to just respond to the question of are there other cases like this and understand what i i think the answer to that should be there are cases all around the country where federal judges in federal death penalty cases they form jurors that if there are unable to agree on a night of this murder there will be a life sentence imposed that's within their discretion and it's done with some regularity what is unique about this case and where i know of no other case like it is where it jury found that they were able to agree unanimously the defendant was sentenced to a term of usually life imprisonment i those underlying convictions were then reversed and remanded for a new trial and now the double jeopardy bar to a retrial is imposed i know of no other federal case that has ever presented that vi car as it's sometimes called section nine hundred and fifty nine of title eighteen the sentence for a conviction of white car is either life imprisonment or the death penalty the jury's verdict in this case intitled i went to a life sentence and took death off the table and i think maybe the better way to think of it is that the verdict meant death was no longer an option and certainly life without release was the only other option practically and realistically available to the judge in this case this is a verdict sa thought of as a case with a note followed by a motion followed by fact finding all of which are functions of the trial judge and the decision in that case to pose a life sentence was the trial judge's not the jury's there's no way the jury in this case misunderstood that this was anything but a verdict it's on the verdict sheet they were polled as to whether this is their verdict and i'm out of