was the nd highest ranking republican senator in the commonwealth of pennsylvania known as the senate whip she was charged in two thousand and nine we're familiar with the difference to the charge was not in the crimes code but it was very straightforward before you before you get into the merits let's i take the sort of the wasn't in custody for that conviction she got it no further penalty sentence and so because she got a no further pouty sentence there's no basis for her to complain here which he's wrongly in custody for because he was never in custody you know jordan that issue of whether she was in custody is limited to one of the three  significant constitutional questions that this court has asked again a way to address that procedural issue goes only to the big of this issue whereby we challenged because of interest and on that procedural issue of whether she was in custody she still in custody but because judge manning provided in his order after he gave her thirty months to ten years that no further penalty will be imposed on the conflict statute because of the sentence i'm already given her which she was happy with having given her thirty  that since separate penalties were given for the counts of conviction and on this count it was a no further penalty why is it that we have you think we have jurisdiction to address the constitutional  are two answers as to whether we meet that procedure and one is after judge manning said no per the penalties imposed as to the remaining counts by reason of the sentence imposed here he did go on to say that the sentence in the aggregate is not less than thirty nor more than one hundred and twenty months and rd circuit court case that i would refer to united states versus every conviction that flowed in this case that put her in jail for thirty months the under twenty was predicated upon the conflict of interest statutes that she was brought and this this particular count but there isn't any kind of general emanations rule is there there's you either got a sentence of incarceration for that count or you didn't that's a one or the other kind of thing and and this the state record indicates no further penalty on that count that's how it was upheld in the state courts so i'm just not following your argument that gives us oh i believe you're following it i don't know that you're buying into it but of the three constitutional issues i've been asked to address this only goes to the and then i'll move on ok right now the other issue that you were asked to address and if this panel agrees with me you don't have to go any further you don't have to go to the merits of the board in this issue which we have the procedural question you don't have to go to blowing out the sermon piece of my case when stephen looking at was not allowed to testify   st issue i would ask this court to address on the merits is the double jeopardy claim and all of that speak if you would to the manifest and she was accused later convicted of this had fabricated evidence and so fabricated evidence was it for the jury what is it is a trial court supposed to allow fabricated evidence to fi in to a jury decision making and do nothing or is there some necessity for a court to act when it learns that there spin a fraud on the court and on the jury a fair question judge jordan but the answer to that question is to be driven by the facts of this case and i'm not asking this court can come up with some universal ruling when manifest necessity can be declared in a scenario such as this this case went on for thirty days our case was premised upon jeanne was testimony and approximately fifty written directives to her chief of staff which was a notice to a staff nurse to what her rules were and the staffer testified that she signed on the dotted line acknowledging those who are you are you suggesting that the that the trial court here acted improperly because there wasn't enough evidence to conclude that there had been a forgery or tampering with the documents there wasn't enough evidence there wasn't any evidence as to who did it there wasn't any evidence as to when that was done and most importantly the hold up if he assumed those last two points are right that nobody knows who did it or why it was done but assume that it was enough evidence for the court to rightly say that these are not tampered with diabetes are not true and accurate representation these are falsified documents matter who did it is the court not staffer acknowledged getting that noticed and jane where he was cross examined on that buried document and they put it on the screen ok so the fact that they put this document up that if i'm still in its name right falsified seems wrong how does that speak to whether once it's determined that this is false if it does or doesn't create a manifest the society for action to declare a mistrial because whether it's false or not in this case it was for the jury that's where it mattered that wasn't the trial court's call that wasn't the commonwealth's call i know what they believed they believed jamie padlocked was telling the truth and jane or he wasn't and what we took to the jury and we both put our best case forward my case was jane place that didn't add anything to the prosecution pace or take anything from the defense with it at that point the court actually said look we could have some curative instruction i mean it sounds like what you're saying is it should  follows we would ask the court to bring this jury in deliberation just not that you now stopped but we want you to bring them back into the court room to stop us just close the commonwealth as close and we want you judge to give them another charge and here's what we want you to tell we would ask that the court call the attention of the jury the fact that there are forged documents in front of them that the two forged documents suggest that there is evidence of guilty knowledge and take into account the fact that the documents themselves reflect an attempt by the defense to perpetrate a fraud on the court here that made them with it but the commonwealth want  to say but you were free you the defense generally on the other how what your piece in this at the trial was famous because novelist but you're the defense was free to say well we'll let's have an instruction but not that instruction you know if you want to identify for the jury that there's a problem here with these documents ok but don't don't call mistrial in fact the request was the opposite was don't give them an instruction we'd rather have a mistrial than that how how and how can the trial judge be faulted for that for acting on that verdict based solely on the evidence presented we are asking that their deliberations resume immediately and we are opposed to a mistrial it's pretty clear if a mistrial is granted then we'll let the appellate courts deal with the double jeopardy issue and here we are here we are now i'll give you give you a moment to sum up your are the documents that triggered mistrial after thirty days were on the ferris irrelevant immaterial to the case at hand and there was no manifest necessity to terminate that proceeding hours than they needed to correct because a lot of evidence that they had the ability to take comp time correct and there is some testimony in the record that people specifically schedule some comp time on october th of april rd they went out for specific election days i've been looking at i can't find anything in the record that shows someone actually going to audrey what's her name and saying i want to schedule some comp time to do campaign ready in the office or that someone says i did that can you cite any specific volume or page number in the record of someone actually saying yes i used this comp time to do this work in the office all the record reference and thirty nine of the chief of staff jimmy problem testified but she gave the commonwealth more than twenty hours a week up over time for fifteen years i know she worked it but your theory at the moment and this is in your reply before twenty two dollars seems to be they piled up so many hours that anything they didn't office was necessarily on comp time but that's not the way comp time works according to the witnesses the evidence was you had office records kept on comp time gene or one did it that way but if i have so you can be off your defense depends on finding it and whether or not any records were kept or anything was written down to report it just necessarily there are so many extra hours that it's all taken care of in the company you know not one of his records whether the jury believed he had on the tuesday and wednesday off i don't have to tell her what how many users if i want to take my kids to the beach i can if i want to take my wife to a resort i can if i want to put your signs out to my employer so i can get a job after the election as my business and that's what the facts what made the district court's ruling of the country saying you know there's no binding a specific use of comp time objectively unreasonable they got it wrong overreaction and that's and in fact speak directly to the point made in the briefing that the the the da time this you have these documents you have them for a long time seen a problem with them you could have brought it up in fact you used them in trial and if and then waiting until the jury's midstream to bring it up was strategic and falls on you not on should had chance of review the documents all the jury was deliberating that's when they discovered this to the government not have an opportunity on what they did those documents surface i believe that the regional dawkins room in the middle late in the trial i don't know a specific date and it was two days into the liberation when a term that was so what prevented i mean if these if these documents were so obviously force you look at me go holy smokes is a fraud what explains that gap i mean they've got an he goes back and think about the jury's thing about him and look some more closely in season i mean it's it's one of things where the flashlight screen you put it that is in every case you say is this your signature the bottom it looks like you don't get looks like my new but in in every case you don't have a is the one the commonwealth has to go through to save this from being double jeopardy right if it's not manifest necessity then it falls on the commonwealth and she's not to be punished twice because you had your shot that's that is the way it works right absolutely ok so then i put it to you if if it was so shocking these documents that it required stopping the jury midstream why wasn't trial and the advocate said it i can't explain why he sat on it as long as he did if he didn't notice it immediately that those are matters of the record so when he noticed it he showed them he told the trial judge in the trial judges who made the determination based upon what we that these documents were really ready they weren't a big deal these were minor points what's your answer there it was this was much ado about nothing the defense was by the none of this happened at the office ok so when our witness jamie pavel he says oh all this political work almost campaign work was done on our time and then she's confronted with those letters to make it tax her credibility and makes it look like the defendant is saying i think my defense was i'm not responsible because i told them not to do it and here i have written directives that say it and she signed it and she knows that that wasn't true and so that's that was their defense and in your in your briefing you say to that was presented largely as a state law claim and in the state in the district court and yet you also said that it was exhausted and morphed but if you've said it was and you did say it's not it is exhausted and it's not procedurally default that that puts the court in the posture then of meeting to address the merits right krug ok i group i just i was explaining myself as to why that happened ok on the on the not in custody piece of this do you have anything to add to the briefing argument that you made i do not is no record that's going to show what you want us to question there is no record of this content time being recorded and also point of note with that is that it doesn't really matter it's because when the defendant testified she said testified on cross examination on or about february rd and that's when i was put in i'm right in front of her and that's when they would take them and photocopy they have they got a nd set of copies on the t h and they came up with a document that the lower court found as follows ray charles can see this and i agree with him that's how bad it was  fires it was ray charles could see it and i had twelve jurors in the box for thirty days and all of them could see very well and we got a mistrial on that period and i will end my presentation with a question for the panel and it goes something like this if you have the creation time coming and you don't record it and you don't put it in a book and you don't report it to anybody and you decide to go into your office and allegheny county or ar sunday on your own time and make calls on your own cell phone is that a felony that's what this case is all about that's what the defense was it was not what prosecutor read suggested that's what the difference was and we were denied that defense by not being allowed to call the thirty two year chief counsel to the senate to