good af good morning my name is collin clark i represent the state of louisiana to the louisiana state attorney general's office this contrary to what you might believe is not a double jeopardy case this is an ineffective assistance of counsel case and why does that matter well the tests for prejudice are different arguably when a double jeopardy claim is brought under rector review the state under chapman versus california must prove harmlessness beyond a reasonable doubt when a double jeopardy claim is brought under strickland the burden is flipped on the defendant to show materiality and i'm sure this court has heard it a hundred times a reasonable probability that but for counsel's unprofessional errors the result in the proceeding might have been different it's that word result which is the central issue before the court today in an a in a considered opinion the louisiana supreme court determined that the word result means doesn't turn on the scope of jeopardy i don't matthews well we the state has conceded that a double jeopardy error occurred and we do not contest the ineffective that second charging document the outcome would have been the same the outcome being a life without parole the other side's argument is well the conviction might have been different in might have been instead of a attempt if it was attempt to burglary instead of aggravated burglary he could have gotten an attempt on authorized entry of a and have the dwelling or maybe a trust pass but what the state supreme court found is that th an authorized entry of an inhabited dwelling is a felt and that's what that is what he was convicted of in two thousand and two in the second trial a bench trial in front of judge natives in east baton rouge parish and because it was a felony under the sentencing statute at the time he received life without parole if he had received attempted unauthorized entry the same result would have obtained life without parole if he had received attempted aggravated burglary which was the outcome of the first trial he would have received life without parole the question is where did the louisiana supreme court is entitle to find that the word result means the outcome the sentence rather than the specific conviction that the defendant would have received and because there is no u s supreme court case that has said that the louisiana three men armed enter to slidell louisiana holiday inn and had a shoot out with the clerk that shot back at them the clerk the bookkeeper died and one of the assailants was injured roy clark was eventually charged with first degree murder which requires among other things the inspire the specific intent to kill or the intent to kill inflict great bodily harm after reviewing the voluminous record judge rubin concluded that there was no evidence that roy clark possessed an intent to kill or an intent to flip great bodily harm but as this court pointed out louisiana has another statute second degree murder which has a felony murder provision in it that does not require any intent and because roy clark would have received life without parole regardless of whether he received first degree or second degree murder this court concluded that the defendant had not met his burden under strickland and what that shows is that at least there is fair minded disagreement on what the word result in strickland me is judge ruben's decision and the state's argument which stands behind it meets this low standard because the question  as the supreme court made clear in richter harrington versus richter the question is not whether a certain councils of performance had no effect on the outcome or whether it's possible that a reasonable doubt might have been if counsel had acted differently but it's the result and if you look at primo versus more another u s supreme court case the united states supreme court explained the deference to st courts prejudice to terminations is all the more significant because of the uncertainty in determining whether that five of the proceedings when the motion of three should have been hundred ninety eight i believe the defendant was convicted of attempted aggravated burglary it was reversed by the first circuit court of appeal in the wheezy and after that reversal during the pretrial proceedings leading up to the two thousand and two bench trial that is when that motion should have been fought at that point with the charge pending the mistake mr thomas was acquitted of the top to top charge of aggravated burglary there is no doubt about that he was convicted of attempted aggravated burglary you're ready the cure comes in that group he's acquitted that concludes that particular prosecution i'm sorry one more time your honour's acquitted he is acquitted of aggravated burglary and which is why we come to morris versus matthews in morris versus mat the double jeopardy heir was found and what happens after that he was retried on the on a on a on a charging document that could and should have been or jeopardy sharma's it's not harmless because harmless is not an issue in this case what what what mr thomas failed to do is prove prejudice a prejudice ok but it's very it's very important because if the result is speculative the state wins in collateral view and the state loses in direct review if the harmlessness is the issue because in our listeners the state has to prove beyond a reasonable doubt no harm  that there was no harm that the outcome wouldn't it would have been the same so if we don't know the state loses on direct review but if we don't know collateral review the other side can't prove prejudice because they can't prove a reasonable probability that the outcome the life sentence would have been different had they raised and i also want to point out that the prejudice that mr thomas suffered because of the improper charge is lessened because it was a bench trial the second time around instead of a jury trial only going back to the just judge judge briars decision the supreme court we're going to miss with matthews matthew says that there's no inherent taint when you're tried on a jeopardy bars charge if you're convicted of a lesser included charge ok and so what he was tried on was aggravated burglary which was absolutely barred but he was convicted of unauthorized entry of inhabited dwelling which state court is entitled to determine whether the defendant has proved prejudice even if he's tried on a jeopardy board charge about a lot of jeopardy yes and because this was brought in collateral as a jeopardy no because ok jeopardy is the air the question is prejudice and there is a good argument that matthew's over rule price and made strickland the test in all just double jeopardy cases and so yes we could end up in the same place that he has to prove prejudice either under mathews or under strickland but regardless there is no u supreme court case that says that this state supreme court can't look at a case and said well he would have gotten the same that sentence anyway there's no u s supreme court's case that says they can't do that and that's why the state has to win and i don't think that this case can be distinguished from roy clark versus magic if you look at a different case that this court has decided collin clark versus louisiana state penitentiary was a very was the same issue there was no evidence of intent to kill but because there was no evidence of intent to kill there was prejudice there because colleen clark receive the death penalty and because bumping colleen clark from first degree murder down to second degree murder would have changed the need i think it's also interesting that thomas suggests that price somehow required the state to charge thomas with the most serious available often attempted aggravated burglary recall that this is what the jury came back with the first time but there is bring the most serious charge possible in fact this very issue was litigated in this case in the in the louisiana supreme court in two thousand and six where they said that there was no basis for vacating a verdict as  was necessarily resolved by the jury against the state as to the outcome of the second trial unauthorized entry of and it have a dwelling and why is that important it's important because it shows that the unauthorized ent good afternoon we have please the court my name is jim a night all right appear only half of mr anthony thomas your honour's if i may i would like to talk about matthews matthew  is a case where the defendant was charged and tried and found guilty of an aggravated murder the underlying felony was a robbery the underlyin felony was the jeopardy barred offense matthews had already pled guilty to the underlying felony the jury in matthews came back guilty as charged on the aggravated murder the court reason that the conviction for unbarred offense is not nearly tainted if tried with a jeopardy barred offense is quite different than what we have here what we have in  mathews morsi matthews is this aggravated murder offense that's tried with a jeopardy barred offense in mr thomas's case he is tried a first time for aggravated burglary the jury does not convict him for the aggravated burglary in fact the jury acquits him statutorily by finding him guilty of attempted aggravated burglary and then there is a second trial also different than morsi matthews where again mr thomas is placed on trial jeopardy again for aggravated burglary it's quite different and it's also a more elementary form of jeopardy we don't have the appellate court modification we have a true jeopardy violation because of the acquit by the first jury judge we talked this at the state talked briefly about a retrial that must be limited to that lesser offense well that's straight out of christ  it's price price the georgia that tells us the first verdict limited to as it was the lesser included offense required that retrial be limited to that lesser offense be not unique or strange this is something that the louisiana supreme court has also looked at and ruled in the same tents and in my brief your honor i do cite state the sevens attempted on authorizing entry of inhabited dwelling the conviction is overturned relative to defense attorneys request for a special jury verdict the louisiana supreme court what do you do to an argument  about strickland judge and certain speculations that were made relative to if the defendant were prosecuted for an authorized entry which of course didn't happen and what we have a speculation and we also have speculation not only as to what would happen reckon argument only takes you back to the underlying element in the structure i just asked a question of the nature  was no strategic or tactical purpose for doing so it was in fact an error and i think that's stipulated i can't speak of the prejudices caused by that error relative district if that's it and i'm sorry if i don't understand your the second trial your honour's respectfully was improper missive believe brot the reprosecute was impermissibly broad on its face in that they brought to trial again for aggravated burglary they did something the state did something that it was not allowed to do and because jeopardy would have boarded and your honor i have and that's true the state is correct we reduction and not only that we wouldn't he would necessarily have been convicted of on authorizing entry because an authorized in tree is not responsive to attempted burglary and also that trial counsel would have it raise another death jeopardy issue to any completed intreat offense and specifically this is something that the state has has and attempt as a separate but lesser grade of the internet crime any person may be convicted of an attempt to commit a crime although it appears on on the trial that the crime intended or attempted was actually perpetrated and the state has asserted this a number of times however a review of the record all right your honor would actually indicate and i'm speaking directly if i could supreme court volume four of six beginning on page sixty six is the jury instruction that judge him kelly gave to the jury the first trial and in that jury instruction he goes through definitions and he says i will read how an attempt is committed to commit a crime is defined in our law a person who an unknown page six fifty a person who has specific intent to commit a crime and who doesn't act in purpose of intending directly toward the accomplishing of his object is guilty an attempt to commit a crime  is immaterial whether the circumstances whether under the circumstances he would have actually accomplish his purpose there is no construction relative or in line with paragraph see that although it appears that the crime intended attempted was actually perpetrated my assertion judge judges is that the jury never convicted mr thomas of a completed entry offense and trial counsel in raising a motion of quash would have forced a second trial on attempted aggravated burglary for which the conviction of which mr thomas is convicted as he stands now and authorize intreat is not a responsive verdict and for which the trial counsel would have made the argument that any completed in tree of fence is also would have been brought in violation of double jeopardy justices it was him pop impermissibly broad and statesboro briefly about well this is the second the second trial is a judge strauss not a jury trial christ spoke about the jury being induced to debate his innocence of verses finding him guilty of a lesser offense i respectfully assert that judges are are human too and we cannot say that the greater offense did not induce judge hernandez to further contemplate innocence vs finding him guilty of that unauthorized use i don't think the state's position been convicted is a very stressful event and this type of stress is taught as is discussed by the you know i say supreme court in green at two twenty three the state with all its resources and power shall not be allowed to make repeated attempts to convict injured individual for an alleged offense thereby subjecting him to embarrassment expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhanced in the possibility that even though innocent most eight possible guilty verdicts that would lead to a conviction if he were properly re prosecuted or if you would have been for an attempted aggravated burglary that only carries  errors by truck out so were sufficient in all these regards to undermine the confidence in this case if he would have been brought from unauthorized intreat that would have been a six person jury all six of those persons would have to  concur unanimously to convict him this is mr thomas who came from a conviction of attempted aggravated burglary where there were eleven of the twelve that concur there was not a majority if he were prosecut think that we can necessarily say that he would've waived that jury trial i think that would have been something that might have played into his consideration and it's also if we look at the record judge higginbotham when they waive jury the day before judge we have the attorney general's office here attempting to speak for the east baton rouge district attorney's office who prosecuted both trials we have never received testimony or an affidavit or anything of that nature from these vendors district attorney's office as to what they would have done if jeopardy if this if they retry would have occurred after a motion for double jeopardy i think it's proceeding after any conviction and we don't have that information it's speculative at best it's not only speculative it's double speculative because it's speculative that he would have gotten convicted of a felony and then also speculative that they would have moved that that  have moved further in that regard there's also the penalties involved at the time aggravated burglary carried one to thirty by not take away of the two offender by not following the motion to quash trial counsel exposed his client to the most punishable intreat offense the one that carries the most the part of corrections tahn by contrast of course attempted carries arguably six months to fifteen years and not authorize  entry carries zero to six years that alone judge shows prejudice that trial counsel placed upon his client but by failing to to follow this motion washington severely undermined determine that the outcome would have been different murphy part that no doubt isn't a clearer case however my position is the same that the outcome would have been different if he was probably tried for the offense of attempted aggravated burglary there is no way that an officer as injury would have been a response a verdict if he was properly tried again following christ state the seventh and there's another case state the bridge's louisiana supreme court one forty nine eight forty four nineteen twenty one case that that follows the same logic that on remain and he must be tried for the offense that they found him guilty of and that's the directive as well that that's that's that's not within price and your honor as i am asserting that price be georget is the controlling case in this matter and your honor price we ga of course talks about the prejudices that were on the price defendant at the time and in your honour's it is a case that factually is more with what we're dealing with here price your honour's was placed in on trial for murder convicted of manslaughter conviction reversed on appeal another trial for murder another conviction for manslaughter and this is matthew actually takes price in dissection a bit as to what occurred there the second trial could not stand because price had been acquitted lee acquitted of the murder and he could not be retried and of course we talked about can determine whether or not the murder charge against the defender induced the jury to find him guilty of a less serious offense the same prejudice here however simply with with the judge with the judge application not only of of that that's involved in a death of but also in strictly stricklin and ruled that is doubly differential and and went into  price did not control i'm saying that their application of morsy matthews was on reasonable and yes price does control and so does murphy the puppet in this regard judge and and that's  the controlling element said that should've been followed their use of matthew morrison site taping it five times and isn't a reasonable in the true test is is strictly and prejudiced judgement has been in both this case and in matthew's the defendants were tried on a single jeopardy barred crime in this case it was aggravated burglary in matthew's aggravated murder with aggravated robbery which is the aggravated the murder itself both entered federal court under a lot of state statutes well thankfully we don't have to figure that out today  both matthews in this case entered federal court with a conviction of a lesser jeopardy barred offense unauthorized entry of an inhabited welling in this case and murder in the other case because thomas was convicted of an unbar charge which is lesser included to the barred charge of aggravated burglary it is in this most important respect similar to matthews and matthews does control  because holds very commonsense sickly that the defendant has to prove a row of reliable inference of prejudice i believe is the phrase and so my opposing counsel made a number of arguments about what but what the u s supreme court said very briefly is that it relies upon determinations of state law by state supreme court to determine whether a jury's verdict logically excludes the possibility of some other verdict in the double jeopardy context meaning that you don't have to spin the wheel in terms of what's a burglary in louisiana if the louisiana supreme court has already spoken on it and it's spoken on it in this case twice and so the louisiana supreme court said very specifically that the second charge i'm sorry that the jury's verdict from the first trial didn't preclude any factual finding necessary to be a result necessarily result against the state when it came back with the authorize entry there's no element of the on authorize entry that was precluded by the attempt aggravated burglary from the first trial and so instead of addressing the state supreme court's opinion  opposing counsel says well the judge did not instruct the jury properly on that issue which hasn't been raised as not before the court but even if it were what the judge said again on page six fifty of the record is that it is immaterial whether under the circumstances he would have actually accomplished his purpose and that's really all that the louisiana supreme court w finding of attempt doesn't necessarily mean that the crime was not completed and so under the indiana case you look to state law determine what is precluded when the jury comes back with a lesser included often it's now my opposing counsel points to the sentence in price versus georgia that the first verdict limb is it limited as it was to the lesser included oftens required retrial be limited to that lesser included office and he takes from that that the state was required to charge anthony thomas with an attempted aggravated burglary in the second trial instead of an authorized happened well it says no such thing all it says is that the man was acquitted of the crime for which he was charged and you can go back and charge him for a third time on what was bar in fact they asked in the bottom of the opinion they asked for post argument memos as to the state of georgia law can price be retried for voluntary manslaughter and it did not take a position on it they remained to enable the georgia course to resolve the issues pertaining to the petitioners retrial so to say that in price versus georgia they set a standard as to what a prosecutor has to charge in the second case it just isn't there and more importantly it has nothing to do with prejudice it has to do with whether there was a double jeopardy violation in the first place and again there was no question i'd like to finish with murphy versus pocket which again is a fifth circuit case so under ed it can't serve as a basis for this court to rule against the state but even on facts i'd like you to note that during the course of that case the petitioner was eventually completely acquitted and it is my reading of that case that presumably included all possible