it ten for each ten for each side three no no ten twenty for each side ten for each of the titian or there's two positions in the case right here as if there was ever a case that criminal case the defendant may not be retried under the double jeopardy clause that's just the prosecutor's in tact was to provoke a mistrial is never right now is the issue in this case exact it ended up in the trial judge saying we're going to have a new case of another car we're going to call a mistrial here but the question is whether under the circumstances that's what the prosecutor is intended by asking pursuing this line of question asking the question if they were precluded more of a legal conclusion the intent is a legal conclusion well that's a factual can it's a factual question but the question under oregon to kennedy is whether or not there was intent so in that sense it's a mixed mixed l the ruling of the california supreme court which is the ruling that this court would review for reasonable us under the age was a reasonable application of organ versus kennedy and it's based on a factual finding by the trial judge who was present that there was no intent to provoke in this trial yes your eye has to become clearly erroneous before you get off first base yes and i think it is clearly erroneous your honor if you look at the record of this case and exactly what these prosecutors did in order to end their and their trial the circumstantial evidence of intent is very very strong these prosecutors didn't just slip and blurt out something that caused the end of the trial they carefully carefully planned a scheme to end the trial after the were an incorrect or misleading implication in the cross examination it could easily have been cured without adding the trial when these prosecutors went into their meeting with the third prosecutor  the prosecution argued vociferous flee that no mistrial should be granted the corrective instruction would be sufficient it is true and so what they want to do is to set the record straight they want to clear up the misleading implication him that the court had ordered and california law required that when he was asked whether or not jones mentioned jones was at the third not correct in making as many of them to well i'm not entirely clear clear we're doing and now says here at the intrinsic evidence since no new evidence was brought in in the district court so i think i think the standard is there's a presumption of correctness to the factual findings in the trial court but but in this case if there's ever a case in which that presumption is rebut it is this case given the extraordinary facts that we find in the record of this meeting that they had when they thought their case was going poorly and in which where did you get them when they thought their case was going poorly where does it come from that's the extraordinary thing about this record your honor and that is that the prosecutors  interpretation of the record i know he testified the case is going back to court held that the case was going well yeah they held that a reasonable prosecutor would believe the case was going well that these prosecutors sat on the record if the jury believes what what this cross examination the implication that the witness was bribed if they believe that our credibility has been impugned the credibility of our major witness has been devastated our star witness has been devastated and the credibility of our investigating officer has been devastated those are the terms they used in the heat of the moment right after they committed their misconduct that they asked for a mistrial that the prosecution there's no after they committed the misconduct  to take into account and reconcile key parts of the record parts that were highly probative and extremely relevant and struck rights to the heart of petitioners claim that's the reason that the california supreme court's ruling was an reasonable because it's fact finding process wasn't reasonable it wholeheartedly deferred to the state court decision which was unreasonable for the same reason it's fact finding process was also one reasonable and i would just like just to just mentioned from the beginning how this happened the trial court made certain statements that reflect why it's fact finding process was a reasonable it said in determining whether the da intended to cause a mistrial the trial court stated quote that he would look to the circumstances of the time of the mistrial and from that try to reason and judge whether the district attorney would in fact also said and i quote in his on it quote honest evaluate it was his honest evaluation that a district attorney sitting in the circumstances that they were sitting in at the time would want to proceed and have a decision the trial court's ruling was based not on what the prosecutor prosecutors actually did the record of which is voluminous their their acts as well as their statements but on what a reasonable prosecutor hypothetical the supreme court did the same thing in deferring to the state court it just listed a lot of evidence but it didn't factor it in the court has to factor it in otherwise what he was talking about was we'll look to the circumstantial evidence based on what a reasonable return he would do under the circumstances and from that did use with the actual intent of the attorneys what what's wrong the what a reasonable person would do you have to look at the intent of the prosecutors that's what oregon versus kennedy says the trial court on the ground said i honestly do not believe that their conduct occurred because they wanted a mistrial lengthy hearing the trial judge on the ground look at this heard the lawyers evaluated the case was in the best possible position to do this understood the rule of organ versus kennedy in concluded that they did not want in this trial i think their conduct occurred because they let their emotions run far beyond where they should have ran i think they realize that this is a factual finding that i don't see any way how i can be clearly erroneous were told over and over again the trial judges are in the best position to decide fac questions wheeler questions and questions like this and here you have an experienced judge who sat through all this looking at it concluding after a lengthy thought in a valuation i don't find an intent why is that clearly aloni well your his opinion was as to what a reasonable prosecutor would have done he did he said he's based on the evidence that he looked at everything that happened if it wasn't by this but his comments reflect that he looked at really the what a reasonable process he thought what a reasonable prosecutor would have done based on the strength of the case these prosecutors said they were devastated by this comment that not devastated that devastated credibility of not only the testifying detective devastated the evidence the testimony of jones impugn their integrity i mean this is a this is a bold statement a spontaneous statement as well which is very relevant they told the witness to wait before he answered for the purpose of permitting and if the action is that right then they instructed yeah action did not come in the witness answered the reason i ask that is because i thought i saw a case where the prosecutor told the witness if there's an objection yell out the answer over top of the objection so the jury  we can make sure the jury hears it and there was an intent to provoke a mistrial and that's a lot different well then telling a witness don't answer until you see whether there's going to be an objection well that's perhaps there's a more crass way of accomplishing the same thing i think these guys are a little more subtle and their approach that's what you think we've got a trial but also if that's not the case prosecutor sterling said he testified well i didn't tell him to just say he was murdered or dead prosecutors certainly didn't give in testify oh i instructed my witness according to the law and according to the trial court's directives all that's to say he was unavailable is the intent and i'm not going to beat this dead horse but you've got a hard hard row to hoe when you've got a finding by a trial judge on the ground during all of this time that there was no intent well i think the california that was moving on to the california supreme court decision from there i would say that the california supreme court decision given this record is one reason was unreasonable because it adds a abdicated their duty of judicial review rather than factoring in this this case falls squarely within williams versus taylor miller at all and taylor versus maddox i mean this case if there's any one case i would direct the court to in terms of analyzing this case is tailor versus maddux that's a decision of this court  which is highly relevant to understanding what happened here now the california supreme court mention two things and it's analysis a half a page in a thirty page decision which it apparently predicated its ruling on which was the pause now the pause i think doesn't amount  they didn't if they didn't discuss and just discuss the strength of the case talk about what a reasonable prosecutor would have done under those circumstances that's an abdication i think of you to show review in this case and that's i believe why the california supreme court decision was a reason well thank you or any evidence of one of them saying well yeah we got to ask it but if we do and the court may declare a mistrial was there any evidence about that mistrial ever come up between them during that time is there any evidence can well you got to ask you again i hope you're going to ask him you would think that somebody is evil you know the judge told us not to do that we'll wait now be an objection then we'll go up and we'll talk about it and the evidence is not going to get in until the court has made some kind of a ruling maybe that's what they're talking about but it seems to me they said was well what if there's not an objection any answers don't you think there might be a possibility of a mistrial should we do this but you say there's no evidence at all if each other in this twenty minutes and so they really didn't apparently have time to think this through and make eighteen smart decision about how to approach this going what form did their explanation of their behavior come before the trial court prosecutors drugger said he was giving his argument as if statements as if they were made under oath but they weren't meant was the trial court relying on material as testimonial material that the trial court shouldn't have been relying on in other words is there a defect in the fact finding process i don't believe so you are these are this is evidence such as you so you're saying we should look at it and say more in terms of information relied on my record of belief so i can't remember which case there is some case they talked about that i don't remember which one i'm sorry i don't remember has to be in the opinion and certainly in that case there was something that was a very central there were two witnesses who dr actually posed to each other about their account of what happened in the third witness which wasn't talk then your opinion which if you know you're not leaving out the central witness so this case really isn't tel and a couple of other things that are objective evidence that show why the case was extremely strong for the prosecution one you had to trial the first trial and the third trial was to go to a jury both those trials ended in convictions which is some evidence of how strong this trial this case a case where most prosecutors would not want to retry this case not with witnesses who are running scared witnesses who have to be relocated on is certainly was of all the cases i've seen in one of the cases you really just would not want to retry officer there's a lot of evidence in the record that petitioners wanted to have another trial there was evidence that deputies overheard petitions discussing trying to have a diversion to create a mistrial it was trying to do something to shut up never asked for this trial set some evidence again that they didn't want intend to have a mistrial also i think one of the strongest things is usually if it's very clear a prosecutor that this case is going to go to a mistrial there's nothing you can argue  so all of those pieces of evidence really show that these prosecutors didn't intend to have a mistrial  you've been with this case for a long time i say five years you're honor if i could i'd like to address the question of the pause this pause is evidence of the detail to which these prosecutors went to plan their misconduct and to end this trial they they did they told their witness that he should pause after an unobjectionable question the trial court said i was stunned when he answer that question the way he did there was never any doubt in the trial court that the question why wasn't he there was not objectionable because the court had ordered an answer he was unavailable so the pause was put there not to bring the matter to the to the trial judge it was put there to give them an argument later on this was a sophisticated scheme they they  to give them an argument later on which would be adopted by the california supreme court and by the reviewing courts that there was a chance to make an objection there was no chance to make an objection the question was not objectionable as it was asked  prop one fifteen per preliminary examination and no witnesses testified only the investigating officer testified but these prosecutors among those possibilities of handling this case including the possibility of going to the bench and talking to the judge about it as they claimed later they were so sure they were going to win that the judge would say it was ok that they went ahead and did it if they were so that's just not credible i mean if this were so sure that they were going to win this case this this issue i should say then they clearly any experienced attorney and they were experienced attorneys would have gone to the bench and asked you know i guess what i was getting out of the question is why didn't he testify the answer might be s that they had to say was unavailable legally unavailable or unavailable they had considerable discussion on that issue on the question of dealer v maddox the problem in that case was that the  reviewing courts had ignored the evidence from a somewhat independent witness the defendant's attorney that corroborated the defendant's statements in this case the california supreme court really ignored the statement prosecutors they were incriminating statements they're highly credible about how they felt the trial was going when they did the misconduct that's important the timing is very important at that moment they felt their case was going sour and that was a big problem for them it is true that these prosecutors argued against the mistrial but what prosecutor with this level of sophistication who wanted to end the trial would fail to argue against a mistrial they would not just sit i think it's important to distinguish here what we're really here to decide and i don't think it's we're not really here to decide what the prosecutors actually intended and i know a lot of discussion and that is relative certain extent especially if you're we're talking about a clear convincing evidence in the presumption etc etc i think that the critical thing here is that we're we're here and i think this court is charged with deciding whether the fact finding process employed by the california supreme court was reasonable or not i'm scared to set aside the whole issue of well what did the prosecutors in ten what was the real intent issue i think to be decided is whether the california supreme court employed a fact finding process which has any validity and under taylor versus maddox miller al williams versus taylor the california supreme court did not factor into it probative highly probative evidence of intent that it should of and had to have done in order to have you know it did not because the opinion itself is predicated on two point in the thirty page opinion now we've got to have a mountain of evidence in this case there was extensive hearings asking us to assume that somehow they would they didn't pay any attention to well they didn't factor it into their analysis even they didn't talk about it that's right frequently i mean i've written a thousand opinions where i haven't talked about things that lawyers but if you go to the heart of the matter this is what we're taught point out what makes a difference and it's over well i'd like to quote read the opinion again in a few minutes at the oregon  abdicated its its obligation but i'd like to quote from taylor in response to your comment quote the failure to take into account and reconcile key parts of the record casts doubt on the process by which the finding was reached and hence the correctness of the finding that's exactly what we made the finding here well we have to we are looking at the california supreme court so she said the courts finally supported by substantial evidence they making the finding the