court my name is jason luck with syrup turner represent broaddrick seat is currently incarcerated we come here today to present to you a what i think is a pretty clear cut case that requires the strictest scrutiny analysis under arizona view washington in that we have a prosecutor we called solicitors in south carolina we have a prosecutor who proceeded to trial aware that a critical witness was not going to be available and the that's a prosecutor's problem but if the prosecutor goes to trial and is surprised he's and that's finding reason here me not aware of the question is the district court found the prosecutor was surprised this case based on the facts and i think on that one particular issue whether he was surprised who was aware that the court made a finding that he was surprised correct your honor i think the entire appeal really hinges on the issuance pride had me a approached the court and the case begins you see what i'm saying because it seems to me that the surprise happened on the monday when the case commenced but the jury was impaneled a day after that so when does the surprise in the surprise finding at the district court kick in in other words does that relate to the first day which was what monday july twenty fifth or was it the day the jury w your honor i would leave it would be when the date the jury was in and then the there was the be surprised if there was a surprise on monday the day before the jury was impaneled keep in mind there was also a day before that that the prosecution was aware that would go on incommunicado so we have two days there there may be for the surprise begins but those were two days before impediment of the jury where the prosecution could have taken some measures to when it came time to call miss grant she had not appeared she didn't appear on monday but the spin it was for the week and she had not appeared on monday they then went out to see if something happened but they did not expect she would not show i think if i were to where i probably expect maybe she got sick her child i heard she room something like this and they went out to look for and continued and when it came time to call her she was not available they then sent out the marshals couldn't find her and the court says in that circumstance or a petition struck your honor it's a little more complicated than that and that's why i look at the record here looking to see what what did the prosecution know before this case was tried before the jury was handled and part of that is mentioned it's in the joint index page four forty and four forty one the prosecution knew before this trial started because of a prior trial with the same with that this witness needed for lack of better word a little persuasion the first trial she was only she testified in begins page four forty four forty one she was under but she was under indictment for instruction just reluctant witness is reluctant critical witness list not forget that the supposedly is a witness that is critical to the prosecution and so there should be a certain amount of care you use with your keystone witnesses was there any is serious any issue about k or i mean that they did issue a subpoena they did stay in touch with her it seems to me the question under donna is whether that is a strictly apply in other words if you have a missing witness that you have some awareness of before being missing or may not come before the jury impaneled does that strictly you mean double jeopardy applies or do we because if you look at whether the process does it becomes a little difficult to describe what is strict discreet but it seems to key in on the knowledge the awareness of the prosecution and this is what i'm going to come back to over and over again in that the prosecutor but you know for the overall doctrine i mean the idea is the prosecutor gets one full chance to prosecute and if he goes and if he goes into a trial and sees things going ba and then asked for a mistrial he doesn't get that chance because he is now playing gaming the system so there is got to be a culpability on the prosecutor and the lines being drawn by  we have a very serious prosecution of a murder can a prosecution we have public big public interest in having a trial at least one trial to determine whether he's guilty or not and we have the prosecutor that has this witness that stuff and sure there's some delay but they're trying to find out what's causing it and they finally determine she's gone now but doesn't seem like a culpable prosecutor gaming the system and saying what you're taking a chance that's what dunham talks about you got to be aware that you don't have the witness but you're taking a chance you can try and arizona uses the word aware that's that's the key word but that is a shorthand for saying a critical prosecution witness this witness needs to be retreat of that brings me back to my point is your argument is not without merit and substance you make an argument and this is made to the district in the district court sens in the course of this beginning of this trial so you're saying that the court was clearly erroneous if surprises measured by the time the jury was in panel group your honor and in other ways i can move on to those while still have a little bit of time that might be argument only appropriateness of mistrial it must give the appropriate consideration of alternatives what we have here in this is in the briefs it's laid out there is no evidence taken in consideration it's i mean they're they started t and there's some indication i think that just by you know see that he acted irresponsibly or you know in the way some of the cases talk about it it seems to me it's a question of does he act to lay out alternatives and consider them which the middle of he did and is he said can the prosecution claim surprise if they know when monday and tuesday morning before the panel and the jury then the question of postponement assume it's ends up delaying question she could be on she could go i mean though that we're talking about snitching stuff in this case right your honor you're right no that allegation made during the hearing that walked back later and it was very inappropriate that was the solicitor should have never brought that up and if you look at we go back page four forty four forty one in the end it's that allegation of danger was while back but at the time that was never is was back at a later hearing that at the time that was brought to the judge's attention the there was no walking back and excuse of a more fundamental question it's really not been brief but we're this is a state trial that is about begin and we have a federal court jump in here and say one way or the other that we should stop the state trial twenty two fifty four i would love to do that you don't are but this is in their local tory order and in south carolina it's not immediately appeal so we would have to try him a second time which with that in and of itself is a violation of his double jeopardy so i wish that we were like george there's a case cited by the state in georgia where apparently an order granting a mistrial is immediately peel we don't have that luxury in south carolina and we do have a case of the rear a case of leave it cited by the district or from some of the arguments made by the state i think it requires this court to look under the hood a little bit it's not look at not just that a witness is missing why is that with this missing look at the why in looking at the why you don't look not just at what is said by the prosecution but what has been done so we have what is said by the prosecution which is the word surprised i didn't count how many times surprising when pressed it appears in this what is synod is surprise surprise but if you look at the apps i don't see that i see for lack of a better word an error on the part of the trial related issues so very briefly not too many issues for one minute offense and he's presented a great many arguments both legally and actually on why double jeopardy should bar that retrial but the critical question remains it's always been focused in there and it remains  three state court record support the trial judge's finding a manifest incessant now i would offer to the court that a lot of the disconnect between the arguments in the briefs that you have before you and the arguments that you are hearing today go back to the structure what structure should we be using what is the framework that we should be using and what factor we take from the record in place in that framework were aware that she wasn't going to show because she was required to show on monday and you were aware you went ahead with the trial xor position well his position is i say it it's more mechanical than that because we haven't looked at some of the questions this morning and again about it is if you heard the arguments morning and his brief parallels the argument is that you were away or under the arizona terminology you  heard i thought your argument should be a little bit where we posed questions is that you were not aware that they would which she wouldn't show she had shown on monday but  you did not convince you that she would show that you didn't know she wouldn't show it to you major efforts to go find him and then the marsh went up but that's got to be your argument and then th these positions and this is it now if you could answer the question how was that not notice that you had a problem with your witness clearly before the jury was sworn in because you have to look at all the de how can you say you're surprised given the information that you have a subpoena that says show up on monday you the witness sitting there on monday witness in their own to the end you actually have knowledge or concerns before that  you then claim your sopra and that's another good point we didn't have knowledge or concern for that you had indication the witness was scared or to some extent correct that's that's what that's in the record no sir no sir and that's what i'm trying to get at it's not is easy is saying monday this is what happened make your point absolutely your honor and we will look at the order from judge cooper on page four twenty want to four twenty two the joint appendix the judge's finding the state has been both have pointed out at the witness was available and had been talked to from friday saturday and sunday the defense talking to her on sunday the stay having expressed that they talked to her friday and that she was going to be on who are and this is my point about monday is if you had laid eyes on miss grant monday that is no guarantee that she would have been there when stevie when she was caught and that's why you don't imperil the jury until you know you have witness it a key witness frankly you know i have to say i'm just astonished that he and i've been a prosecutor astonished that the state would proceed in a murder trial to impanel a jury when it knew that the key witness had violated the terms of the subpoena for not one but two days in a row how to how do you call that manifests necessity in the state aleck's to roll the elected knew what her problem is witness was not honoring the subpoena but elected to place the defendant in jeopardy and have the cheery sworn why in to me it's just astonishing that the state would would would have taken that kind of a risk it seems to me the height of your responsibility to take that kind of a risk for the citizens of north carolina who should have had a fair trial along with the defendant and then they take that risk and then they just knowing that the witness might not show they impaneled the jury and then they claim so there it was necessary to have a mistress the records courts and judge cooper except that there had never been a problem with the witness coming when called before that she had been to the solicitor's office that they had talked to her that she had cooperated fully and  trial that she had given testimony in that trial that she had spoken to the defense she had been in charleston and wasn't paying the bill when we she was going to be called wednesday they had no indication she would most severe side of the scale correct it is it is unfortunate that scale and it would be the most severe side yes that would that is correct and what that what this that may well it is a little unclear from united states supreme court process and i will agree with that but it isn't a discretionary ruling and then when i review in court goes to the discretionary room when there is a range of scrutiny that should be undertaken to determine whether it's an abuse of discretion so it would be strict it would of whether or not they are or less severe alternatives and discuss why there are now those are not in the order that is duran leon arizona versus washington where the united states supreme court said that was error actually for the district court because in and arizona district court and the ninth circuit they said ah there's no evidence in the order and the united states supreme court taking a different section in the opinion actually sa those things don't control this case sure well in shanker what we had was a sad self inflicted wound that's what the court said that there was discovering that was due that was not time y given and that caused the problem there is no state action in this particular impaneling the jury when your witness isn't there that's because that's the rolling the dice that occurred here that's the state action we would disagree and i believe that judge cooper was correct in showing and going through and looking and saying both sides are saying the witnesses are viable not just stay on side ok let's get on to thursday so thursday we know that the witness can't be found why didn't don't have anything in this record that shows that the judge considered whether to continue the case to monday the obvious good at looking at what were the aisle alternatives that could arise in this situation and he recognized that possibility of two but he discounted both of them because of the way that the case had developed this was a very slow and deliberate approach to finding manifest necessity and what was what's given to just one sec what was slow and deliberate about the clearing in this trial twenty four hours after you tried to find the witness carolina but good prosecutors do that to make sure their witnesses come to court don't think we called in south carolina my understanding is and i am we're going to know the journey but my understanding is everybody wants to move the case along now witness the sunday before the trial and that's it and say that witness should be available get insight that anything about availability and she just was there and available to talk to and that is in keeping with what the state believed and that was that she would show up when she was called and it's very important i think to consider that judge cooper look at what the defense was saying and look at what the state was and i will point the court to the joint appendix when all of this is happening judge cooper doesn't see this is a witness who decided not to show up judge cooper says i'm dealing with the unknown there was  possibility at that time that something could have physically attached to the witness we didn't know it could have been an accident it could have been intentional we didn't know what happened there i would know that and there's no reason to continue the case and that's why there was a break in the proceeding right because i'm saying why wouldn't that have been a reason to the obvious reason to continue the case intil intill the monday that was and what the district court was saying the district court saying look at what  the information that the circuit court had at that time and judge cooper knew that the martians had gone out to try to find some indication of where she was then i had no leads it's not like we had a cell phone people or four and they had a roadmap of what was going to do because they had the the how or transcript so only three or four so if we tease this out like we were teasing out monday arrival if we tease this out ok well wednesday this this case is moving at a good clear there were eight witnesses on tuesday in one case oh man on own instead let's say we put up three or four well then you had the afternoon is it better to grant then not just the text of the judge's order but the context of it and that's what is incredibly important and what led the judge to find manifest necessity here and the district court was absolutely right this is not a matter what pages you  record reference to age where the text was reported to the court it has reproduced in the district court's order and at page five if you know i do not know off the top of my head it is here and i believe the suspension of the proceedings that went with should be somewhere around the joint appendix it for us and because that's where the judge that i am dealing with  it's like i have a question for you as we begin as you begin to think it's probably no surprise surprise to you that i think that the prosecutors rolled the dice in this case very clearly but on the other side of the equation we have a murder case to what extent are we required to consider that the gravity of the sense how does that fit into our calculus i don't i have not found any case law that that stands for the proposition of the gravity of the finance the gravity of the that somehow we do since the protections of the united states constitution it is a murder and that is terrible right i know i meant in terms of the the declaration of manifest see it that the prosecutor in my view is clearly rolling witness was there but when the judge is considering manifests necessity to what extent do you consider the fact that this is a murder trial in the citizens of the state also have a right to have this person tried how does that go into the next i don't think it factors into the significant amount but you know the citizens the states also have a consideration there's a must there's a public interest the consideration of a fair trial all trial it's all trial should be fair and just do you agree that our review of the district court's order in terms of finding a which your earlier question was what is nicely into it strictness scrutiny like i mentioned earlier i believe is something that requires the court to really get under the hood and see why what is the  here it is to examine the motivations of a little bit so with maybe even get into the it the prosecutor involved looked deep into the record as opposed to something on the other into the continuum which i believe the bound case has factory and in some ways blend in some of the sound discretion analysis into that saying there has to be consideration of alternatives there has to be a sort of a it was an extra was an extensive argument deliberate investigation of why and i think when you're dealing with something here where you know why is it that a missing witness is so important why is it given such high screw was a continuance audible alternative of the decision