good morning may please the court counsel i'm assistant attorney general michael simple on behalf of the people state of illinois this appeals about whether the state will be allowed to continue its prosecution of defendant for his repeated sexual abuse of a nine year old girl your post court's ruling that the trial judge erred by declaring a mistrial and that the double jeopardy clause prevents the state from continuing its prosecution is wrong for a number of independent reasons to begin with the defendant is prevented in prohibited from raising a double jeopardy argument because the record shows that he consented to a mistrial in two separate ways first the defendant himself move for a mistrial on each of the first two days of trial second independently the defendant did not expressly object on the third day when the trial court declared a mistrial writers this was a very short trial as i mentioned only lasted three days and throughout that time the defendant demand mistrial on the first day of trial the victim testified about how the defendant had sexually abused her for a period of many months then her little seven year old sister testified about how she too had been sexually abused by the defendant at that point the defendant moved for mis court other state supreme courts federal courts if you have held that a request for a mistrial constitutes consent to a subsequent declaration of a mistrial now the defendant has argued that this rule should not apply in this particular case because his grounds from this trial were different for them as were indicated by the earlier work closer to what the judge ultimately relied upon i think it depends on the case i would say this course decision though is the i would somewhat close and they both centered on the appearance of an article in the chicago tribune that revealed details about the case the defendant argued that was prosecutorial misconduct by the judge it's a little unclear the judge seemed to think it there was a risk that the jury might seek think there are two separate arguments your honor i think there are independent arguments is that the fact that this defendant moved from his trial that's a statement by the defendant that he wanted to give up his double jeopardy rights he did not want this jury to decide his fate and so when the court declared a mistrial on the third day the court was granting him the relief that he wanted which was a new trial with a different jury cases we cite it in saunders and which i think are much different in terms of what the defendant wanted and what the tr reasoning in those cases is that even though you're grounds are different ultimately you're getting the relief that you requested and i tied into that your honor i think is a very important point which we raise in our breeze which is that i think looking in the background of these decisions we can be absolutely certain just based on our common experience this if this story had continued to deliberate and rendered a guilty verdict this defendant absolutely were of appealed and said in this trial should have been granted on the first or second day or probably even the third day of trial and we raise that in our defendant at various times has raised two completely contradictory arguments in this respect on the one hand he said well i did object to a mistrial and on the other hand especially in a briefing for this court he said i didn't have an opportunity to object to the mistrial on the grounds of jury deadl on but the record shows in the case also that neither one of those organs are true or accurate as i mentioned it's really been liberating the morning of the third day late in the day the judge called the parties in the court and said she just received a note from the jury saying that they were deadlocked she then told them this is actually the second time they said they were deadlocked it's a similar thing a few hours before and she didn't structure them through the bailiff to keep on deliberate so by mentioning that obviously there was the chance that the jury may need to be destroyed should be apparent no one objected at that time or organ that they should be given more time study judge called in the four person she took her time she questioned him about the sequence in deliberations and she specifically said would it help if you were given more time to deliberate the foreperson said no judge to come back in the morning but what's key at that point is the prosecutor then emphasized he was not saying that those alternatives were the right method in other words he's not disagreeing with a mistrial which again was another opportunity for a defendant to disagree and make some kind of argument that either a pr or telling the jury to come back in the morning were the only two options but again he didn't do that he remained silent and he continued to remain silent as the judge said that she was not going to pursue those alternatives she said she was concerned about the jurors anger level during her a she said mentioned the loud voices she'd been hearing back in the jirga and so she called the jury back in the courtroom defendant can remain silent the judge thank the jurors and just starts the jury i think what's also key is what occurred after the jury was discharged thank you as a former trial or all of us in here to have a new trial experience if you intended to argue that a new trial were barred by double jeopardy or the charges should be dismissed what you would do when the jury was dismissed thirty days and he explained that the reason he wanted the status date in thirty days was because he needed to issue subpoenas in advance of the trial he didn't ask for th the state specifically asked for the trial date it was the defendant who asked for a status in thirty days so that he did issues that have time to issue subpoenas in advance of a trial the court agreed to that thirty days of if it would have time to issue subpoenas in advance of the trial and the court said that at that status or the defendant had an opportunity to it subpoena the witnesses he wanted for trial the trial date would be set at that time so all of the discussion was about trial date the status date was picked enough constitutes an objection the appellate court did not rely on that at all in the case law anywhere that would say that suggesting that the jury be brought back the next day is enough in fact pages fifteenth or sixteen of our brief we cite cases that deal with very similar is you know we've discussed a lot of bright line rules this morning this is exactly the kind of situation where we want to bright line rule we want a very simple breitling rule you have to expressly objet that's the smallest burden possible on the defendant just say i object examines it has rejected that and because we want to break wind of what we don't want any kind of ambiguity you know i think you know things like asking for a permit struction they're not incompatible with an understanding that the jury but it wouldn't hurt as long as we're here let's give a promise and aren't you suggesting that by making the request for prim instruction that you don't consent to the judge declaring a mistrial when you say come back tomorrow i'm not say in defense favor is there's something implicit in asking for prayer or something implicit we read we reject that for reasons we discuss in our brief there's reasons you might suggest a prim and struction or you might suggest coming back in the morning but still understand that look the jury's deadlock and there's no there's nothing wrong or there's nothing in error if you economise trial but we're suggesting maybe give a little more time that's not the same thing as saying i absolutely object to this trial and right this form over substance  honor to be suggesting that in certain contexts certain words that are less than an objection should be read as actually object and so in certain contexts asking the jury to come back in the morning should be set right as an express objection to a mistrial  try to say we believe that these things are not incompatible but however if you're on are suggesting that there's something implicit in that and i think that's also what that's really saying is you have to look at the entire context and so let's look at the entire context three day dismissed he does not say i want thirty days so i can find my brief what does he do he talks about scheduling the only specific request is that the status be set in thirty days so that he can issue the subpoenas so even taking your honour's question on its own terms and taking the argue that i expect to find it's made saying something like let's tell them to come back in the morning that's a contest at best a context dependent argument and the context here shows a defendant who was not judges very broad discretion in deciding whether or not it juries deadlocked so a defendant faces has to carry a very heavy burden has to show that this judge's decision in announcing a jury deadlock was completely unreasonable that no reasonable person could have agreed that and there's important practical reason for such a high standard ness of course the trial judge is in by far the best position to understand the case the environment the atmosphere of the trial the complexity of simplicity of the trial it would really put pressure on judges perhaps to force trees to continue to deliberate which would obviously read to coerce verdicts in some cases so i think it's telling that the united states supreme court has recently said that is never overturned a trial judge a determination  deadlocked i think the same is true of this court and that should continue in this case because all of the relevant factors so that this judge made a reasonable determination i can just briefly touch on them number one the jury said it was deadlocked and courts agree important factor second it's a very brief trial two days of testimony present a very straightforward issue was this little girl telling the truth defendant and self said this is purely credibility contest all of us in our everyday lives make credibility terminations all the time you know very quickly frankly usually within a few seconds if not minutes so it was within reason for this judge to think that five dollars was enough time and third the record shows this judge did not act hastily she talked to the parties about what they thought should happen she called a four person in four person said that they've been deliberating they've been a deadlock for about five hours that nobody change their votes for several hours she specifically asked would it help if we gave you more time and the foreperson specifically said no we've discussed that and more time would not cause us to change our minds and finally your honor this case does present the risk of a course or obviously a long term child sexual abuse case presents very sensitive issues which can cause emotions to run on the street already been told once you see for the record they don't even hold ones to continue deliberating and they still have not been able to reach a verdict and the judge herself in explaining her decision specifically mention her concerns about the level of anger she knows from the jury and she was concerned about with the jury and mentioned hearing the some loud voice isn't raised voices back in the jury room so why defend it in this particular case is focused on the judge's duty to help the jury reach a verdict twenty four the united states supreme court decided the case of united states versus the u s their case is a benchmark case just the stevens referred to it as the fountain head of a case that addresses when it's proper for a trial judge to declare a mistrial in instances of jury deadlock a case has been cited continuously quoted continuously still relied on today in fact still relied on by the u s supreme court in that case just the story directed that the power to declare a mistrial ought to be used with the greatest caution under urgent circumstances and for very plain and obvious causes and the reason for that is because of the importance of the right that the double jeopardy clause protects and i think we should take a look in this particular case of what happened in this case it took almost two years for this case to come to trial the  discovery from the state dribbled in bit by piece by piece the pretrial motions by the state dribble then bit by bit a lot of the information was delayed until right before trial the defendant c substantial expense in defending against this trial he had heard in spirit in stone donnelly stress and anxiety based on what happened during the jury deliberations the defendant determine that there was a possibility that the jury was favorably disposed toward him and he wanted the case to continue to a verdict he has a right under the double jeopardy clause to a verdict from the jury he has selected to determine his fate and who he thinks might be favorably disposed toward him and that right cannot be abridged unless he asked for a mistrial consents to mistrial or there's a manifest necessity  found that none of that occurred here and they correctly found that the state argues that the defendant consented expressly consented to a mistrial by moving on two prior occasions for mistrial on completely different grounds not on the basis of jury that like and if you feel i have a heart you've been following that logic but if you follow the state's argument to its conclusion then what what would happen if the defendant made a mist motion for mistrial the first day of trial judge denies it the jury is deliberating five hours and not coming back with any verdict could the judge at that time say you know what defense counsel you requested a mistrial earlier in the trial and i want to go ahead and granted now and if the defendant then said no your honor i want the jury to continue to deliberate as he expressed consented because on an earlier day under different circumstances and for different reasons he's requested a m did he hear yes i would say yes but the state the state continues to ignore the fact when the issue of jury deadlocked came up the defense attorney said judge i agree with the state let's give him some instruction or you could ask them to go home and come back tomorrow but you could do both you could do both but those are the only two viable alternatives how is he saying when he's saying these are the only two viable alternative that i agree i agree weeds and say hey give a premise for him it's not given the judge orders a mistrial and now you say ok double jeopardy attaches where the judge did not have an opportunity in that case to say ok well i've reconsider arguments i see you're objecting to this let's do it you know i think you're ignoring the context of what happened here that i don't think there's any doubt that this judge knew that the defense wanted to continue to verdict in fact the state in its motion are responsible acting to the defense motion to barry prosecution the state argued all the defining consent of the judge never found the judge didn't say what do you mean you're filing a motion i thought you agreed to this the judge said i'm denying the motion because i find there's a manifest necessity the judge knew the judge doesn't have to be told this is a season trial judge this judge does not have to be told in addition to as i think at that point the defense was just thinking out loud it's a situation where he's he's he's getting his ducks in a row he certainly didn't do anything after that date if you compare this case to for example camden the state relied on in its brief very heavily relied on in people v camden and the defense attorney when there was an issue arose about possible jury bias the defense attorney said nothing did nothing said nothing but the judge do question the juror call the other side i offer the defense an opportunity to question the juror the defense never objected to anything the judge did after the judge declared a mistrial that trial defendant speedy trial demand move for substitution a judge agreed to setting a trial setting did everything inconsistently with the  i think we would be here your honor because this trial judge believed that there was a manifest necessity for the mistrial so we would be addressing that question should th quite honestly i i thought about if i got this case after a conviction i may be arguing that the state didn't prove him guilty beyond a reasonable doubt and this is a case where as the appellate court said credibility issues were were not simple the credibility issues were anything but clear this was not a simple trial in terms of the issues that yuri had to decide it was in a short trial i can't say that i can say that i would or would you not or i mean there were issues for example with the issue of the inadvertent comment about the attorney the judge immediately sustain the objection and told the jury to disregard consideration the other thing that the state has not considered at least in the oral argument is that when the judge refused to give a permanent struction part of her reasoning for refusing to do that was the fact that she had spoken to the jury two hours earlier without telling any of the parties and told them to keep deliberating so based on the fact that they had continued for two more hours without reaching a verdict she decided indiscretion by the judge in doing that but those two cases those two cases in fact show exactly why they're distinct because in those two cases cases the jury actually continued to a verdict that's the result the defend it was trying to accomplish here so for the judge to find that it would have been futile to either give her prim and struction or to give the permit struction and return the jury the next day was based upon her earlier x party communication with the jury which which was improper and which played a big role in the appellate court's determin jury room they told the bailiff or at an impasse the bailiff then went to the trial judge said the jury has informed me that there are impasse and she said tell them to continue to deliberate and then he went back without the judge responded i am fearful folks if i do that folks prosecutor defended rape both wanting rooms for it you're going to have some extremely angry jurors there has been some very loud voices back there for a period of time i think it would be futile to do that therefore i would decline so the the judge had more information than just time that went into the s s but first let me say i don't know that that reading with the state is reading is necessarily correct certainly she did indicate she wasn't going to give a print struction one i think i think under the circumstances that was completely unreasonable it was four thirty in the afternoon there is no reason both parties asked for the permit struction the jurors have moved in different directions so there was no reason it was on reasonable not to give the permanent struction that day but i also think that colloquy is not necessarily the judge saying i'm not going to give a permanent structure and i'm not going to have them return the next day and i'm going to clear mistrial certainly she was going to give the perman struction but i don't think it necessarily means that she was it means that she didn't want them to come back the next day what she described as anger was anger she thought they would be angry over the possibility of having to leave and come back the next day not necessarily anger if they were asked to continue to deliberate that day with a permanent structure and with respect to the expressive objection argument as i'm looking at the again the the transcript again i'm trying understand your argument that it was expressed both the state defense counsel asked for prims the judge says i'm not going to give and it would be for you is what we were told the prosecutor object in those circumstances first consul had already made it clear that his position law is that the only two alternatives yelling two viable the only two reasonable alternatives were to give the jury a prim instruction and have them continue to deliberate or have them come back the next day or both and again i don't think it's necessarily the case that the judge said i'm not going to cram them she said i'm not going to have them come back tomorrow but i don't think it's all they clear that the judge was refusing to even give the permit struction until she called the jury out and discharge them at which point the defense attorney  what was the defense attorney to do that at that point in fact there's recognition by other cases that when the jury comes out and the judge declares a mistrial in front of the jury that it could be taken negatively toward the defense if the defense attorney says i object your honor make them continue to deliberate that they're going to treat that as something that the defense cause them to do i don't know that i don't know that it would have been of much effect at that point since the jury had already been discharged and i am my reading of the record is they weren't even in the room after that that they were released so i don't know that it would have been of any effect for the defense attorney at that point to say anything you know the only case that i have seen where a court said asking for a permanent struction and again i think the defense attorney here did objection is the first district's decision and people vs about seven circuit said the first district is completely misreading federal precedent united states supreme court precedent the united states supreme court has never held that in order preserved to preserve your double jeopardy rights you not only have to make it clear that you want to continue to a verdict but you have to say i expressly object on double jeopardy grounds and that is what the second district recognized and that is what the state is asking that we require not only that you make it clear that you want this jury to continue deliberating but that you remind the judge that there are double jeopardy implications again i think that's wholly unnecessary  i would like to make a point also on the the state i assume is referring to the let decision and its argument when it says that the united states supreme court said  that that reviewing courts should give judges a great deal of discretion in determining whether there's a deadlocked jury that's not actually what that led decision said and led all that the court said was that under the federal rules for a state prisoner we cannot second guess whether the michigan nec ace the michigan supreme court reasonably interpreted the law they said it might have been an incorrect incorrect interpretation but our role is only to determine whether it's a possible interpretation in fact they suggested that in that particular case which has some similar facts that it was wrong for that judge to declare mistrial so that their case does not stand for the proposition that a trial judge has unlimited discretion and fact manifest in the sense that he means urgent imperious the judge has to exercise sound discretion not just some discretion and in this case the judge did not exercise sound discretion she refused to consider reasonable alternatives that both parties requested she based her decision on prior acts party communications with the jury the defendant made clear that his desire was to continue to a verdict with this jury there was it was not hopelessly deadlocked jury they had made moves back and forth in both directions only two pieces of evidence that were main pieces of evidence that were presented after the initial motions for mistrial one was the defendants highly damaging interview which again he said number i won't repeat them but number of very bizarre inculpatory comments about young girls the other piece of evidence was a stipulation in which the victim explained the sort of emotional pain that she'd gone through through this time so the only evidence that was presented was damaging to think situation had changed and of course if the situation had changed and it should have just made that clear i think then it presented a counsel present and a hypothetical about what would happen if someone made an initial motion for mistrial and then the judge wanted to hold  the answer is very simple if it would just say i withdraw that motion for mistrial and i want the jury to continue so the hypothetical has a very simple answer you just withdraw all your original motions and i think it's very telling that i think the game's been revealed here is that even now counsel won't withdraw all those earlier motions counsel says it's back to lay ssion about whether they would proceed with those earlier motions on appeal but it's not speculation it's a legal question is defended believe that those earlier motions were viable and since what the judge wanted to do i think the record obviously shows it was clear that a mistrial there is a potential for mistrial and when the judge explained that the alternatives that were discussed were futile she was making clear that she was not going to pursue those alternatives and  was declaring a mistrial so certainly even before the jury was called back you know it was obvious what the judge is going to do even if it wasn't as questions alluded to all defendant had to do was request a sidebar that's exactly what this court held in camden request a sidebar explain your position to the court  to the printed struction counsel said that the judge relied on her earlier ex parte communication as a reason for not giving a permit struction it's completely not accurate the only time the judge mentioned the ex part communications was when she first brought the parties in the court the next very next thing she said was i'm going to do whatever it takes someone to tell them to return in the morning if that's what it takes she then called the foreperson then foreperson explained that more time would not be helpful record in terms of ex pro take medications that's been rejected by this court in johnson mclaren and it provides no reason for this court to overturn those decisions she talks about the prejudice here being that the idea that the ex parte communication prevented the jury from reaching a verdict but in johnson maclaren this court upheld convictions so if that's not prejudiced allowing the courts now to new its prosecutions to be and again on the issue of deadlock counsel presents no reason to believe that this judge did not act reasonably as the jury specifically said they were deadlocked specifically said that more time would not be helpful so the street for issue she took her time she specifically mentioned the jurors anger and her concerns in that regard so you know if this court has concerns about the issue of consent