court is a nominal party here and the real party in interest of the state of washington this case calls on the court to clarify the distinction between two different but overlapping doctrines the implied acqui doctrine and the manifest necessity and doctrine implied acquittal is an inference about what did the jury mean by its verdict if a jury is given a choice of different possible verdicts such as first degree murder or second degree murder if that was the situation in green v in ited states and they say guilty of second degree murder and they don't say anything about the first degree murder we draw an inference that they meant not guilty as to first degree murder no counsel appellee is quite correct to that application of that doctrine does not depend on acquiescence by counsel somebody has been acquitted and he's entitled to the benefit of that are jeopardy attached to had a trial that's correct and there were two charges and a lesser included of one charge right correct yes and so the jury came back on the lesser included the misdemeanor and the asked does anyone want me to pull the jury and so for whatever reason the jury was never polled on there was one offense that didn't have a lesser included and they didn't sign that verdict right correct they didn't sign the greater of the one that had the lesser included and the jury was polled on whether they all a great that the misdemeanor was circuit fiction right mo so and isn't there some sort of instruction now i'm kind of sort of a california girl in california we have an instruction and i did this both as a prosecutor and as a judge you told them you don't look at the lesser till you look at the greater and if you you if you are not convinced beyond a reasonable doubt that the greater was committed then you can look at the lesser so it but the parties could have clarified whether they were deadlocked and did something contrary to that instruction or otherwise and they didn't and then you got that whole other offense that maybe they just you know i mean it kind of seems that what they did was they all agreed that he was guilty of this misdemeanor and that was it this is why it's important to clarify between the implied acquittal and manifest necessity doctrine to correct you factual to one minor point the jury did in fact sign and submit a verdict form as to the greater offense but they left the blank the part where it said guilty or not guilty blank which was exactly in accordance with their instructions they were told if you reach a verdict on this charge then fill in guilty or not guilty they didn't do that they didn't reach a verdict on that charge the council wasn't subtle right there's the colloquy that just callahan's referring says i'll accept the jury's verdict as to count one quote the conviction on the lesser offense was quote that says well court was quite express about what he or she was doing but yeah why why is it that he jeopardy and so that's why you don't ask for mistrials a lot of times in all of that so if you think that there's any sort of confusion and then you make sure either it was a hung jury or what what's going on here if you want to if you want to retry to count one answer no your honor i'm prepared to enter mr undirected new trial as to count two then we decide we want to pull one count to the judge very clearly pulled on count two and then doesn't circle back to count one nobody circles back to count one the judge though says i will declare a mistrial with respect to count two except the jury's verdict as to count one and then says he's interpreting it or see the conviction on the lesser offense so right there that's a really good time to object it is i think it does and nobody sets a trap or is a trap the trap is if any of you would like the jury to have the jury polled as to that verdict on count one i can do so you know i'm sorry that he says i'm prepared to enter mr i'll be happy to inquire if with further deliberations they may be able to reach a verdict on that count he's talking about and i'm looking at excerpts of record sixty four ok as you know with ideally pardon i really want to make sure not missing at what line place starting at lin trap and maybe you can persuade me but here's how i see it assuming for a moment that what the judge is asking do you want me to pull the jury to the greater of the two offenses under count one i'm not sure that's what he asked but assuming that's what he asked the state says the no surprise the defenses know if the stay did said yes it would have been polled where's the trap the the trap is the defense leading the court to believe that he wants that's why wait wait wait wait defense counsel represents the defendant and the defendants in source only the prosecutor represents the people of the state and all of that the defense counsel is not creating a trap when maybe they don't want it  exactly other reason separate sitting here here but that's what someone calls a good representation of the defendant and it's not a trap you're asking the defense counsel to do your job in the news i'm asking what i'm asking the defense counsel is to do his job of assisting the court in making an important delicate decision which is should the jury be discharged to ensure that his client can be charged again and not and can allege double jeopardy in making sure that the court has the assistance that it's a title to one make on the decision of the should the jury be discharged or should they not be discussed and that the prosecutors responsibility because you blame it on the defendant if this is b so want to be charged again they always want to say it's double jeopardy because this goes back once again if it gets to defense counsel did it it would be an i e c charge against them saying i want to help the prosecutor clarify so they can retry my client honor the question the ultimate question and this is why it goes back to the manifest necessity issue what manifest assess that it's all about is premature discharge of the jury discharging the jury at a time when the defendant still has a right to a full verdict from that jury and that's why defense counsel should say either they do or don't want the jury discharged you know i'm totally on board with the questions and to some degree the implication from judge cohen has crushed the prosecutors fully in a position to protect the interest of the state by asking for bowling prosecutor did not do so and you're saying the defendant has  put his client who in the news i don't get it what what worse what i'm saying is that a defendant who doesn't want the jury polled does not want the court to inquire to deadlock shouldn't be allowed then to come in and say oh the jury was destroyed prematurely there wasn't a proper declaration of deadlock that's a violation of my client's fights but the defendant's counsel did nothing to prevent the polling he simply did not ask affirmatively that had been done i would say that he specifically told the court in effect that he didn't want it done well fair enough but of the stated wanted it there was no way you could have prevented that all all that's correct your honor here at the if they fell into the trap but it but what we're dealing with here is the defendant's right to to have to have the jury discharge or county didn't rate the fugitive disentanglement doctrine in its opening brief and i can't find so now you're raising it and i can't find any case and maybe you can help me in which the fugitive a case for me i'm not aware of any cases that are comparable to this one it's an unusual situation but what distinguishes the cases raised from by the defense is this entire proceeding was initiated by the defendant by seeking corpus and you know all the cases he cites where it's in a political war proceedings initiated it regionally by the state i see the my time is expired you know let's hear from the other side and we will give you a chance to respond i appreciate that thank you which the county is not did not reply to the shark case which i think is right on point where the supreme court said the cases are of the sort that the counties will are in on our they said come down is wholly irrelevant correct thank you your honor but remain silent the other charges without announcing signs of hopeless deadlock that's exactly the same as here the county state could have said hey we want this is a blank we want the jury polled we want to know if they were  incorrect for the reasons i detailed in my a sort of ply their statements were wired because under twenty two fifty five four it could not the court this court could not have granted without actually finding a constitutional violation but secondly even if somehow they were not required they clearly were reasoned dicta and therefore a binding posen counsel also made an argument that is brief that i'm not going to put my finger on but i'm going to paraphrase it he said that we should clarify because are two different statements within that case that he thinks are inconsistent or misleading can you can you respond to you know which argument i do your honor and i would say that a they're not necessarily inconsistent there were two different statements your honor or whether or not it does there's no need to resolve it now because both are true here in the under these facts i wonder brows will this is that there was an implied acquittal here i would also note that this court has at least twice and several district courts in determining whether the jury is hopelessly deadlocked it maybe by pulling the jury and maybe by other mechanisms but the key is is there something here that shows us that a mistrial is required then then either and briefly and to the factual he said she excuse me have i if any of you would like to have the jury polled as to that verdict i can do so the immediate sentence of the the there was only one verdict  said i think the court asked both parties whether they wish to poll the jury on the telephone harassment offense what meaning should be placed on the court's question and the fact that both parties declined because he had the they had the harassment i'm going to tell you and then i'm going to do the bomb or whatever he had the the words i have here and i'm sorry i don't have the i somehow failed to bring the entirety are with me but but what i'm the only passage i believe there is after discussing the count on which they were hung and they said i will declare a mistrial as to count two i will accept the jury's verdict as to count one which meant for guilty on the lesser the conviction on a lesser offense then she says transcript she or tell us i's the language i just quoted to you she noted the county's position contention that this was an offer to inquire into the silence on the greater and then rejected it the rejected the county's position and said however what the court was for i'm paraphrasing now what the court was referring to was the verdict that was a finding that is subject to clearly erroneous i don't think you we need the clearly erroneous standard here i think the records clear what the court was referring to but i think it's clear there was a finding by the district court and if this court views required even though it was based on a transcript even though it's an trial court intended i think we know at the top right right ok well but judge i'm just saying the judge packman agreed with us and that is a finding that under rule fifty two you could reverse only for if were clearly right well and built in suspenders in one difference between this case and brasil is that at best this does not apply here but it applied in brac and brasil and i don't you know and you could say that it would make a difference but that would be that is a distinction and that's one of the county's arguments but what what my response to that is is free fall and very briefly one thousand advocates but after the deference the court ultimately had to didn't have to reach that finding they did make in reasoned statements this is an implied acquittal and therefore the implied acquiescence argument is gone and then thirdly even if browsers were completely off the books i think th brothel if you look at the case it clearly says we really we really because the state court did not provide any reasons for it determination our review was for clear error the state court did not clearly air and it goes on to say that the under federal law the washing court of appeals determination of implied acquittal was not unreasonable nowhere did the court say we independently find under federal law that it was an implied acquittal council says it should have maybe it should have but it did but in fact the court does make a fifth of a determination of federal law when they say nothing on the record or brad both cases indicate the jury's inability to agree with hopeless there is a clear inconsistency in the court's formulation of the manifest necessity doctrine in one place in the opinion it says it applies if the record doesn't show any split three divisions in the other case it says it doesn't apply there it's hope the difference of course is the word hopeless and that in a hopeless deadlock is an attribute of the manifest necessity doctrine so the court in brazil has the two by putting a concept that belongs to manifest necessity into the implied acquittal doctrine and that has to be that is something that needs to be clarified if as our position is the standard is deadlock a showing that the jury is not agreed not hopeless deadlock we should know about in the future whether or not the court believes that there was in fact acquiescence in this case i'd ask the holding of the difficult be reversed thank you thank you but think both