the honorable the judges of the united states court of appeals for the four we're pleased to hear from you court my name is david weiss representing the petitioners in this case as your others know there are procedural issues that are before the court as well as the substantive double jeopardy question of why there is a double jeopardy violation in this case the way that i plan to proceed this morning is by beginning with a discussion of the procedural questions of exhaustion and younger before i get into that i want to first get just a brief synopsis of one of the key characteristics of the racial justice act which lead to the conclusion that there is a double jeopardy violation in this instance the petitioners in this case are two of the only four petitioners were defendants in north carolina even if we conclude there's a color claim on the double jeopardy for vision that doesn't and certainly don't or abstention well part of the extension question is whether there's a substantial claim the other part of the extension question your honor is whether there is an eerie media bill harm that's ongoing in the state court and here younger does not apply because there is no adequate opportunity for the petitioners to get redress for this double jeopardy violation you know what it was just talk about that for sec let's just assume for purposes of argument that we were to a farm the decisions of the district court with respect to abstention and so goes back to the state trial court i'm asking because the parties really didn't address this but i think it's relevant particularly under our decision and nevins if you were back there what pretrial procedures would be available to your clients to raise the double jeopardy issues none your honor because this question has already been raised and decided by the state supreme court the state took an appeal from the r j decision to the state supreme court the petitioners or the respondents in that instance were sitting in the state supreme court specifically argued to that court that the appeal was not permitted and that a rematch what the state was asking for was a remain for further proceedings under the racial justice of the petitioner specifically argued to the states and so your  position is you could not raise a motion pre trial on the question of double jeopardy even though the state supreme court in both orders directed trial court to take those issues well actually what the state supreme court ordered was was more limited than that the state supreme court remitted for a further proceeding under the racial justice act so necessarily rejected our contention that the double jeopardy clause prohibited those further proceedings and then the state supreme court went even further than that implied they rejected right and yes that's right your honor and to not rush the issue did not discuss the issue but of course federal courts all the time treat silent rejected in judo already filed motions in the state trial court as protective measures too and i'm going to be asking the same questions to opposing counsel because i don't know what the north carolina law is but it just seems odd to me that understand your representation that there is no mechanism under north question to that court so we can't know for sure as we would in the other states but i'm not sure that that's what those orders from the state supreme court say and the point for abstention purposes is if there is an adequate avenue before jeopardy attaches for you to raise these questions our decision and nevin would seem to indicate that there is no irreparable injury at that point because you have the right to raise those issues before trial in this case before retrial so let's just assume that there is an avenue for you to do that and you can pursue the motions you've already pursued if you were  unsuccessful is there a provision under north carolina law that would allow you to take an interlock atory appeal the for trial yes there would be and it would be discretionary on the part of the north carolina supreme court as to whether they would take that appeal i believe it would be a partition for search or ari automatic that is that what's going to happen so that you know your honor there's an there's an ongoing proceeding in the state court right now the result of which would be the reimposition of a death sentence after our clients have already been acquitted of that sentence under the the north carolina statute did that provides to the contrary i'm sorry isn't there a north carolina statute that rises to the contrary no your honor the i believe that the exception  when there's an acquittal for purposes of the double jeopardy clause that acquittal is untouchable cannot be reviewed except in the very narrow circumstance that the u s supreme court has that an identified in the wilson case that circumstance doesn't apply here because that case only speaks to a situation where the appellate court makes a decision and then there's no further proceeding in the court but lo and wilson what happened was the appellate court made a decision you're assuming that your proceeding qualifies as a   that this was an acquittal and i can discuss that if the court is interested in that issue at this time in terms of whether there's a further proceeding going on in the state court right now with the u s supreme court talks about is a proceeding that involves a risk of a conviction after an acquittal or risk of a new sentence being imposed after an acquittal and that's precisely what we have in this case we have an ongoing proceeding in the state court we've already had two hearings before the state court and the whether what happened before the r j judge was an acquittal for purposes of the double jeopardy clause and it was an acquittal because there there are a couple of very well worn established criteria that we find in every single case where the double jeopardy say we express no opinion on the merits of respondents motions for appropriate relief the trial court should address the constitutional and statutory challenges pertaining to the  i'm just not sure that i follow your argument on an implied rejection of the jumbled double jeopardy claims i don't look like to me the state supreme court has specifically saying we're not going to decide any of those issues at this point and for abstention purposes which is somewhat of a different question than the merits of the double jeopardy if there are pretrial methods in the state court that let you raise these issues then i'm not sure that you can make the case that you have an extraordinary circumstance with an immediate and irreparable constitutional harm particularly if you can take an analo feel as long as all this happens before trial well i think i think that one appropriate option that would be available to the court would be to stay the state court proceedings with the exception of a consideration of the double jeopardy issue if the court is concerned that the state courts have not had an adequate opportunity to address that issue but i think that would be a way of foreclosing any harm any constitutional harm that the petitioners would suffer through the ongoing proceedings that the state is pursuing the state court to impose a true it was an acquittal in the bullington sense it was an acquittal of the death penalty in the u s and the court has recognized in burlington that you can have it you can have an acquittal for purposes of a death sentence when it's a trial like proceeding hero wasn't allowed although you're saying they because in the bullington sense and whatever the arizona case was it came shortly after that the supreme court seemed to focus on the fact that these were trials in a sense were the same the burden remained on the state had to prove their aggravating circumstances the absence of mitigating beyond reasonable doubt sort of things you had all the trial like attributes and that seemed to be the deciding factor particularly in bowling to but here it's a little different and it may it may be an acquittal for bowling to purposes but here this is a proceeding not brought by the state it's brought by the plaintiffs and the burden is not on the state the burden is on them and the standard is not beyond a reasonable doubt is just a preponderance so i don't think there's ever been a case in this line that had those that this burden of proof is different in our case is not dispositive the dispositive question is is it trial and that's going to be the issue of whether or not well the whether or not it's an acquittal for billington purposes have to raise at a trial so the defendant would initiate that affirmative defense and it under many affirmative defenses that are dispositive which do lead to acquittals the defendant actually bears the burden of proof so in that that circumstance is no less trial like simply because the burden is placed on the defendant it's just a matter of how the trial how the trial proceeding is structured what are the issues that are raised but what makes a trial like is the adversarial nature of it the fact that the  briefly i see my time my opening time is running out but the case is that we submitted in our twenty ha supplemental authority letter even if the court does not conceive of an r j proceeding as a trial like  proceeding we would still prevail under the analysis of those insufficiency of the evidence cases what the hey because courts have said in those cases is that there is an acquittal for purposes of double jeopardy when the federal habeas courts find that the evidence insufficient to justify a senates and it's this precisely the same finding in the r j proceeding with the r j judge found is that no reasonable fact finder under any of the of the evidence could impose a death sentence because of that judge that judge retired subsequent to that ruling and then when it went back to the jurors someone in this plane could go back to the chief that's right originally went back to the senior resident judge and then there was a motion to recuse that judge and  step aside and the case was referred to a different spirit court judge ok so you're going to have a new judge regardless if it were to go back well we already have a new judge and a proceeding is ongoing and that's why we believe there's an eerie media will double jeopardy violence you well they're in a sense they're being handled as consolidated cases originally i would assume so you would look at me like you'd be there consolidator not here you're consolidated right here were consolidated and the state court north carolina supreme court has said the cases should not be joined at that was an error in the original proceedings to join them as a practical matter this court judge has heard all four cases that are proceeding together and the same hearings given eternity for each you said there's been another motion that's been yes that's right so there's been there's been a subsequent to that there was another motion that involved whether the legislature's repeal of the racial justice act could allow spirit court judge to then say that they were correct on abstention and this goes back what can the plaintiffs do pretrial to raise their double jeopardy issues so they can and have raised double jeopardy before the state's appear your court today they count it as a preservation issue but they have raised the issue of double jeopardy before the state's appear your court which has taken the matters under advisement we've claim that it's a preservation issue but they have argued they have briefed and argued the issue of double jeopardy before the state superior court this is an ongoing perceiving right but you're sort of i thought you said there was a preservation issue they originally you know you're absolutely correct judge they originally raised it as a preservation issue we cited that in our brief since that time we have have a judge who's been appointed to hear these matters in the cumberland county superior court and they have briefed the issue of double jeopardy they have argued the issue of double jeopardy before the state court this is an ongoing proceed all right well let me ask you this is have you raised as a defense and that proceeding an argument the they absolutely and in fact the state court should have the first opportunity to make that determination especially considering the spin that petitioners have put on and the racial justice act the racial justice act in fact is not a trial here you get into that yes or no it's all that thread a little bit farther so you go back with soon you're back in spades spirit for ever hearing on the issue of whether the double jeopardy petitioners would have the same opportunity that was identified in the nevins case which they can seek further discretionary review before the north carolina supreme court about that issue and so they can go to the north carolina supreme but the racial justice second the racial justice act itself we find to the post conviction statute in fact said you can raise a racial justice act either at a preliminary a pretrial hearing what we call a rule twenty four hearing where you can raise it post conviction petitioners raise to impose conviction and the court conducted an evidentiary hearing on that issue but but relevantly the racial justice act refers to the post conviction statute so it was straight up of post conviction kleinwo whatever its value there was a decision that's correct but what we're dealing with with racial justice act is the trial court error it is not an acquittal the eligibility for the death penalty the eligibility for the death penalty in north carolina is predicated upon findings related to the aggravating circumstances which the juries in the petitioners case have already long since found and nothing has shaken those decisions at all the racial justice act doesn't apply to any of the aggravating circumstances or the guilt or innocence of the petitioners at all this statute rather is a trial for error identified and provides a remedy or you might even say a sanction against the state to prevent the finding an aggravating circumstance but then elevates the motor beyond a first degree murder to make someone eligible for the death penalty that being the capital nature of it that simply is not what we're dealing with with the r j e so when we talk about a retrial there is no such thing in what we're talking about here it is not a retrial at all it has been remained it for further proceedings related to their motion for relief just as any other motion for appropriate relief would come before the superior court and back to judge agee's point this is exactly why this court should not intervene while the district court did not abuse its discretion in abstaining from intervening to the state court for the very point that the ongoing state court remedies and ability for them to raise these very claims before them it's not enough that they come before the court and say we have a colorable claim now course we've gone on to argue that there is no double jeopardy violation but the point of the matter is the state court is reviewing this currently and in fact if there are adverse ruling stew the petitioners they may in fact be before you again on this theory issue of double jeopardy but now is not the appropriate time since the state courts security or solves the double jeopardy issue i suppose it is possible your honor he's taken he's had legal argument on all these issues and has taken that under advisement we don't yet have a ruling so i guess it's possible that the court would go on perhaps a ruling on some of those legal issues but not all of them and go on to conduct discovery or appointment of x or y to remember c i am your honor but nonetheless for the very point that   we have argued it before you it is relevant in the sense that the lower court the district court found that that they that the resolution of it was far from clear to the benefit of the petitioners and that weighed in and in the determination that the just report made that it's far from clear that they would actually win on the issue of double jeopardy so in that regard we have argued it before  you and i as i mentioned before it may come before you at an later juncture depending upon the rulings in the state court as they wind their way through state and federal post conviction review here they are they you know obviously there are ongoing the claims have been dismissed based upon the repeal of the r j and that those matters are winding their way through the state post conviction review process as well they're currently before the north carolina supreme court on review  claim that cost and anxiety or insecurity about the death penalty is something that should cause the court's intervention and yet you're well aware that the case law is specific that that is incidental to any criminal prosecution that  brought in good faith and that's certainly been done here plus the petitioners in this case for decades were on death row and additionally there are no pending execution dates for anyone in the state of more than the alternative sentence under the racial justice anybody over there was a blueprint for the wonder of and the life sentence that they that they would have if they if the death penalty goes away under the racial justice act be a point to remedy is life without parole that's correct like them i thought i was good that i mean i come from a state that doesn't have the death penalty but we do have life without parole that's would be the alternative to what that's what they're after they absolutely are after after life without parole that relevant to the issue that's before this court the lower court the state superior court was not choosing between two different sentences he was merely taking the procedural argument that was being made to them regarding trial court error applying the facts to the law and then ruled in their favor and applied what the statute afforded was the appropriate sentence so he wasn't actually weighing as  in the traditional sense of weighing aggravating or medicating circumstances which would lend to lend credence to be a little are just like good most of clues of mitigating circumstance and then into the north carolina supreme court that they raised it for the first time in response to pleadings before the north carolina supreme court that was the first time duration that was the first time that there was a push to me like that  your honor i'm not saying that they they have every right and have taken advantage of that right to raise it before the superior court what i'm countering their argument you're back in superior court you're not going to raise william or that's correct and we have no right it's currently pending before the superior court my question is if you are right they are still under duress what is there to drive well that's a good point your honor the only thing that there is to try is their mission for appropriate relief under the racial justice act if there was no other reason that they could be if there was any better are to maintaining those death sentences than there would be no point for the north carolina  motion to dismiss for failure to exhaust available remedies take it from your answers to our earlier questions that you would agree that that portion of the district court's warmer is  invalid no your honor i think our position is that they did not exhaust in the state's highest court they have not fully argued these cases through state post conviction as they are required to do so they have now filed  fore the states appear your court and are litigating their claims they are but they but at the time that they raised it really exhaustion is that they haven't gone taken these claims all the way to the state supreme court as first time before the north carolina supreme court and argument they are and consistently here is they have an opportunity to raise it on remember this is an ongoing proceeding that's the appropriate place they should raise it and then carry it all the way to the north carolina supreme court if there is an adverse ruling without you a sort of judge is that that aspect of the record the dismissal aspect of it is moo that's when it became relevant and so i get it has consistently been they need to raise it back in the states appear your core you said they all raised because it's being litigated right now they are indeed your honor thank you with no other questions we would ask each o thank you your honor i think to come back and go through the reasons why younger extension is not appropriate here why this issue was decided in north carolina supreme court why the state  decided but it was only standing what the language supreme court opinion the judge will be read to you well let me i'll go to the constitutional issues i think that that language is very important so i want to come back to that and discuss it right now it's a page five eleven of the joint appendix and what that language says first of all in the context of that decision the petitioner was the state of north carolina because the defendants were the prevailing parties below and the state petition for review in the state supreme court so what the north carolina supreme court said is on remand the trial court should address petitioners so the state of north carolina is constitutional and statutory challenges pertaining to the act north carolina supreme court did i think if you if you look at the court's if you look at the court's order i mean the caption of the order refers to the state of north carolina as the petitioner the state is the petitioner they're the ones who petition what are you in  true but in those in the north carolina courts the party moving for relief in the trial court is not referred to as the petitioner i just i've not seen that i've not seen that done was generally referred to as the defendant in a in a proceeding i'm not understand your first answer are you saying that you're going to tell the superior court in north carolina you cannot decide our argument on the double jeopardy issue we've already told them that and we can supplement the record to show that we raised the issue for preservation purposes i want to come back again to the language so you don't want them to rule the double jeopardy issue that's what we would if they could but they cannot because the north carolina supreme court has imply we express no opinion on the merits of respondents motion for appropriate relief so clearly in the context of this order saying respondents motion for appropriate relief they're referring to the defendants and so in the next sentence when they say petitioner the state supreme court has clearly referring to the state of north carolina because the issue they put up a posterior there that's a good point your honor petitioners the apostrophe is between the r and the s so it's that you cannot raise a double jeopardy argument i mean it just just dumbfounded that they take a position that's favorable to you that you seem to reject well the reason they reject is because the law is clear there's a statute in north carolina all well we believe this race judicata because what we argued to the state supreme court was that a further proceeding under the racial justice act would violate double jeopardy and in north carolina supreme court not only did they don't have a court ruling that effect i ta i believe that this war should be done except the exceptional circumstances which you say you got here the double jeopardy clause that's exactly right if you haven't got a ruling that you got that here you say it you say you got double jeopardy but you don't have a ruling to that effect  the question why it's important for this court to get involved at this point because the petitioners don't have don't have any sentence they're currently in custody under an indeterminate sentence in state proceedings well the want to go there what you just found what have you asked the state superior court to stay any other further proceedings until they decide this double jeopardy issue so there's no i don't know what the discovery or what you ask them to stay that's a that's a good question you honor we have we had actually asked in addition to asking the north carolina supreme court to decide the double jeopardy question we had followed a motion with the state supreme court to stay to stay proceedings specifically so we could take this issue because they right if you end up going back that might be a motion you'd want to consider yes your honor may consider that but so so turning back to why there is no in place i think it's important to clarify that there was an initial death sentence that was handed down in the petitioners original trials that death sentence was vacated as a result of the r j proceeding the r j judge then imposed a life sentence issued a judgment imposing a life sentence then the north carolina supreme court vacated the r j a judge's ruling and a judge bake a did did not make it the judge would make it the judge vacated the order imposing a life sentence so the north carolina supreme court and we talked about this in our place but the north carolina supreme court did not remain for reimposition of sentences and the cases that the state cites that's what the north carolina appellate courts did because only trial courts very council and then we'll go to the next