respect to why the plane or abuse shouldn't reply shouldn't play it's because everything that was factually and legally developed for those claims it came out in the st trial so before the nd trial if someone is actually genuinely going to seek the protections of double jeopardy you raise it before trial not after trial further the united states supreme court has said when you don't raise it be forced to trial you can be considered to have waived it moreover so that means if you get acquitted at the st trial and the state wrongly tries you again for the same offense but for whatever reason you don't raise the double jeopardy bar before the trial you just go to prison for the rest of your life and there's nothing nothing anyone can do about that how it works if you are where did at the st trial so there's a clear double jeopardy violation by your being tried a nd time for the same offense but you fail to raise the double jeopardy bar before trial you go through trial you get convicted in for the st time at that point you say well wait a minute actually i've already been acquitted of this offense i can't be convicted of this you're saying that the law is you've waived forever your ability to assert double jeopardy i'm not saying forever your honor but st i'd like to say if in a st trial there was actually supreme court of the united states with that claim but what you wouldn't do is short cut that route and then bring it to the district court you know you as a twenty two i don't know what it would be improper about the procedural posture that we're in if that's what you're snow and i don't see anything there's no plane error review that would apply that the claim that's before us was squarely raised in the district co was raised in the district court but i think the question should be was it timely raises the question as framed in the state court and the answer to that is no your honor because it needed to be raised as soon as the st trial ended and before the  nd trial began is that the state's position yes before the nd trial began because everything that was necessary to raise the claim was present right but that's what i'm saying in my hypothetical my silly hypothetical  insensibly going no that's silly because you're right that the state would never retry the person but in my hypothetical the same holds true and you said there that the person could assert double jeopardy no i'm not saying could because there's nothing that prevents them from asserting i just don't believe it would be a genuine assertion and i think it's troubling for me to deal with the hypothetical not because it's silly issues i just can't really not only do i not believe their attorneys in the office would countenance that situation but i don't believe a trial judge knowing that they got acquitted in the st trial and it typically before the same drug judge wouldn't that st trial the trial judge's statement about the reckless manslaughter charge did in fact under the u s supreme court's precedent amount to an acquittal let's just say that that as a matter of law that is the case but the defendant missed it went through the  trial got convicted right and for the st time said wait a minute actually i can't be convicted of this reckless manslaughter charge because in that st trial even though i i should have started this earlier in the st trial the judge actually quit if you know that why can't the the defendant raise that up after the nd trial that's what i don't understand i'm not saying he can't but the question the court posed to the parties was not with respect to reckless manslaughter it was respect to the assaults that were never raised never mention never ruled upon however the petition mr d d believes that everything necessary for the assault claims to raise will double jeopardy and abandon that flows from utterance the court made in the st trial during the verdict settling so in about where the court said he didn't think there's any evidence to support a manslaughter anyway as i what you're talking about yes your honor why does that apply to the assault charges i don't think it does but mr d d in his petitions he said it's a tacit ruling not not only mr d d but also the district court they said that that was a tacit ruling not just with respect to the reck but also with the assaults are never mentioned does it matter that the jury had been impaneled and sworn when the judge made that statement about manslaughter it matters so they sent the jeopardy had attached right that's my it's the supreme court precedence not precedence we call from another circuit furthermore the th circuit has said we're not bound by these decisions from other circuits so it just fundamentally intuitively it would seem unfair for the  circuit to not bind itself to the other circuits but then but in the state through abandonment that's just not law and it's not legal and furthermore this case in both trials the defense agreed the defense didn't want it either so on the merits sailor and catherine are there just a very very rough hard a motion before the nd trial asking the court to not give the lessers in the nd trial because of these issues for the manslaughter we specifically called it double jeopardy because of the acquittal we didn't necessarily use those and if you didn't give the manslaughter then implicitly you can't get to this a lesser included offense right it is a lesser included offense with your reasoning that was a reason and a point in our motion was that the lesser instruction should not be given for the reasons of what happened in the st trial then the nd trial took place and apparently his position is we have to do some interlocutory appeal before the nd try i'm not read anything that says by not doing that you waive all future challenges during the nd trial we again object same reasons that we appealed to the district court in here in hawaii and then we appealed it to the hawaii supreme court as i know you do with respect to manslaughter where do you use refers specifically to the assault charges i've got the record show that either side wanted them right just put them in but neither side wanted to charge you with either with respect to manslaughter or assault is that correct that's correct ok so that's correct then is it fair to say that nobody talked about this just the judge put them in there it was beyond that we objected to it the state objected to it we objected to it that's abandonment and it's clear for now to be clear though we did file motions to preclude them it wasn't as it just so happened we found another set of motions after the nd trial we raised it in the eye supreme court we raised it in this in the district court we raise it circuit our circuit has been ruled directly on this abandonment issue and you know what i hope it's because in our circuit no prosecutors tried to do this when the prosecutors time and time again said that the evidence does not support this charge when they have argued to the judge to not give this instruction because it does not apply when after the st trial they said in the media they have no regrets because the evidence didn't support it when for probably four or five years they said it doesn't apply and only after they lose the murder case they now try to resurrect it i hope that's why we don't have law on this in our circuit is your view that the abandonment occurred during the st trial or during the nd trial both your honor it happened in the st trial ok bye bye bye just the let's put aside the reckless manslaughter just as to the assault charges it's because the state did not ask for an instruction and this is this is why in the st trial they found an indictment that had a lesser included they could have pursued it they then in their opening statement didn't mention it at all they put on no evidence about it they objected they submitted their proposed jury instructions that did not include any lessers then they objected to the lessers on the record then in their closing argument they didn't mention it that is that is complete abandonment then again there were comments made to the media about how they weren't pursuing it because it didn't apply and then it happened all over again in the nd trial remind me how how was the original indictment or were charging instrument framed it was it was murder in a nd degree does not i guess but propose at least jury instructions on them they have been deemed to abandon them under this record when you can't pursue it and you don't and you don't mention it at all in your opening when you don't put on any abandonment theory and you did not we raise the acquittal argument and some other arguments that this is not the abandonment or what's the effect of your feeling having nothing because they did nothing and they did it all over again in the nd trial in the nd trial well here's why it a why wasn't right get why it wasn't right get after the st trial because he hadn't been acquitted of murder so he had to be tried on murder again anyway right and so it wasn't a matter we raised the objection to the  but but anyway then the nd trial happened right and same thing again no mention of it in opening no evidence about it known jury instruction asked for objected to it said that the court was right the st time that's what the state said they're not giving it and then further in their closing arguments told the jury that it didn't apply but the problem of the nd trial though is that of course the instructions were given right because the state trial judge i gather had an independent duty of his or her own to determine because in this case it was given and then in closing arguments it was given over the state's objection and then the state told the jury that the only charge that applies is murder lesser is don't apply and then there's cases that talk about when it when the jury doesn't pass on a charge because of the state's actions that triggers double jeopardy and in this case it was because of their actions because they're the core of the jury they don't apply the jury hung jury hung a two for  know there's a hung jury that that's it there's double jeopardy that your position no not all but if but if there's a hung jury because the state completely abandon the theory then then there is a lose if you don't win on  judges were getting it wrong now there's a there's a good state supreme court case that says when a court announce the court announces a legal principle grounded in an understanding of a particular statute it's merely expressing  says it doesn't matter if the court was mistaken it's still an acquittal so number one if this court somehow wasn't sure in the st trial if the lessers were less if the assaults were less as a murder evan says it doesn't matter because thought they weren't lesser is a murderer and it doesn't matter anyway so i just conceptually divorced from the facts of this case i guess i don't understand how it could ever be true that a judge would say there is sufficient evidence to put the greater charge to the jury but that saying it was mistaken because that has always been as to the lessers you know give it if there is a rational basis to acquit of the greater and convict on the lesser the evidence to support that because the greater was i mean the greater was intentional killing of another and the other was reckless and she said because there was it wasn't any evidence to support reckless manslaughter there wasn't a rational basis to say you could acquit of murder and convict of for time is limited the st thing i'd like to say is this court recently decided a case for it versus filson it had to do with dreier and the waiver and forfeiture why when or this court should or should not exercise its question because the arguments are so fact murder charge right and there was no do you there's not even any discussion about the lesser included it's just all you proposed to the judge was to instruct on nd degree murder that's all the jury considered the jury acquitted him i assume that you would not take the position that the state could then turn it was harm so there's no there's nothing to preclude with respect to jebel jeopardy the case from proceeding jeopardy continued to the nd trial and the supreme court has said you're not bound in the continuing jeopardy situation to theories or evidence that was introduced in the st trial thirty seconds i have remained focused but then the nd trial he is acquitted of the murder charge and they hung on everything else right but at that point why are you permitted to even pursue the lesser included given what you had done at the st trial because in the st row there was no jeopardy terminating event that's the key issue a jeopardy not it was hard and there's no construction of evidence that even remotely suggest that the theory that defendant proposes that because an instructional ruling refusing to give an instruction on a certain offense under evidence is an acquittal the supreme court has never ever said that and germane to that point in floyd versus phil soon