first of the hideous grant was based on a defect in the manner of selection of the grand jury foreperson the district court found in this is not in dispute that this defect could be remedied by re indictment and retr but the district court went further and that is the reason for this appeal the district court found that even where the heaviest defect could be remedied by retrial the state can be barred from a retrial on a finding of quote exceptional circumstances close quote we contend that this aspect of the district court's order is clear and ask the court to reverse it first we submit that the district court's order is contrary to the supreme court decision and rose versus mitchell rosa recognize that he views relief should be granted in grand jury selection even if there was no error in the pettitte jury or the trial itself however the supreme court reasoned that with this type of constitutional defect habitually can be granted even absent a showing of actual prejudice to the defendant the court noted that there were costs associated with this approach but went on to answer that argument as follows a prisoner whose conviction is reversed by this court need not go free if he is in fact guilty for the state may indict and trying him again by the procedure which conforms to the constitutional requirements citing hill versus texas we respectfully submit that the exceptional circumstances test whatever it may be cannot overcome are those which expressly anticipates that states will be afforded the right to re indict and retry a defendant who obtained hippias relief based on an error in grand jury selection we also believe this court has previously held that in redo versus with second even assuming that the exceptional circumstances test could apply in a row situation the test has never been defined in this circuit to include any of the circumstances alleged here the test as was recognized in jones versus kane states the test indictable in fact the think that case is instructive in cats the court stated that barring a new trial would be a permissible form of judgment in a hay vs case but the court went on and i quote it is a power necessary to protect the purpose of corpus jurisdiction when the error forming the basis for the relief cannot be corrected in further proceedings close quote that is not the case here the grand jury error can be and has been corrected examples cannot be corrected or are double jeopardy a speedy trial violation or a reversal based on a vindictive prosecution but we have none of those facts in this case third the  circumstances cited by the district court do not fall within any of the examples that other courts have found to be exceptional circumstances and are not themselves exceptional the first reason age and health all of us age some of us will get sick but we all remain answerable to the law there's never been a court that has granted the vias discharge purely based on age or health the second reason is the passage of time since the criminal act in the possibility that witnesses are unavailable these are arguments that however first must be made to the state court and exhausted there if this is an argument about due process pre indictment delay it is an argument for the state court to unavailable witnesses and whether their testimony can be read to the jury we are not aware of any confrontation clause problems but again those are arguments that must be exhausted in the state court the supreme court has been clear about that if the pitches case third the district court said that we have a third bite here at the apple and that that is a something that we shouldn't have no rule of law prohibits a third indictment i'm not aware of any case that says simply because a defendant is being brought to trial for a third time in less of his double jeopardy that there's a reason for discharging the defendant both of mr wood fox's prior trials resulted in convictions they were overturned only d grand jury issues fourth district court found that it could not trust the state to do its job but we must recall that it was the state of louisiana that overturned would fox first conviction woodfox did not have to come to the federal courts for relief second the grand jury issues that were the reasons for the reversal in both cases were due in part to louisiana's flawed statutory scheme of selecting grand jurors that scheme has been repealed and replaced and under the supreme court's case in huger there is absolutely no showing that the state processes that are available to would fox  retrial cannot and would not be fair the fifth argument raised by the district court truly has no place in this case it relates to conditions of confinement there is no way the man mclean in this case and there was no basis for relief based on any kind of eighth amendment argument this in fact this is subject of another case pending in the district court which has not yet even proceeded to trial in his motion argument  sorry motion opinion judge smith correctly stated this is not a proper subject of inquiry in the c p s corpus proceeding forth and finally your honors the result we seek here is fully supported by the proceedings in truly exceptional circumstances and the supreme court was careful there to define what it meant it said this is not simply highly unusual facts the supreme court said it must bear must be a showing that the state courts are incapable of fully and fairly adjudicating the federal issues before them there is no such showing in this case and no such finding in this case in conclusion the state has a strong and legitimate interest in the prosecution of this murder case there is no statute of limitations for the crime of murder the hate me is defect in this case that was the result that we are talking about today can and has been remedied there's been no showing whatsoever that the state courts a retrial cannot fairly adjudicate this case or that state remedies have been exhausted we request the district court order barring the trial should be reversed let me ask one question that the how he got there and whether he is being held is mooted in part by judge smith opinion and if this court should agree with the state in reverse and order that  moot the rule twenty three issues however if this court were to affirm judge brady then the issue would be right because that would allow the district court's order for immediate discharge to be effective custody and whether or not he should remain held pending the supreme court's disposition of them the state re indicted him and was he it was was that after district so faced with the fact that this court had said that the conviction was unconstitutional the state wanted to proceed forthwith to get an indictment and to proceed with retrial so yes you just took possession of  moved him from wherever he was under the order that he was under to somewhere else under another order that was their plan all right well it would happen three it was strange your honor in the state apologize for that's not the rule twenty three mistake but the important thing being that he was never moved from the jurisdiction of judge brady and at the first hearing before judge brady after the transfer had occurred from in goal to us feliciana the state conceded on the record and admitted on the record that a judge brady had all the jurisdiction there's no attempt to move it out or deny him the jurisdiction and the d of the court and mr woodfox prefer they would transfer him back go but i don't think anyone wanted that so it was a practical mistake to move him without following the rule twenty three motion either in this court of the district court but i don't think it has any bearing on the issues about pretrial a ppeal yeah but i'm trying to figure out whether it's an issue that we have to rely on is right i think of it only be an issue that would be relevant if you decide to affirm judge brady's order and because on the issu good morning if you please the court my name is george kendall i'm here on behalf of mr albert woodfox when this court issued its mandate after affirming the grand of papers released it became the duty of the district court in this case to issue the remedy that law and justice require when the district court focused on that question he promptly viewed this case as a total outlier unlike any other habeas case he saw a collection of factors and circumstances that call for more than the usual remedy which is a conditional that he saw and we can't decide aggregate these factors we have to look at these in combination he saw a very old case once of you know the burial has been pending f the crime in this case happened forty three years ago he saw that the state had not one but two prior opportunities to remove discrimination from the grand jury process in the failed to do so he sought troubling conduct by the state in the processing of this case he saw a very sick and infirm old petitioner who has been harshly harshly punished albeit because of his alleged association with this homicide he wasn't in the general part of the prison because of his alleged involvement in the miller murder he has been kept in solitary confinement type conditions for more than four decades very unusual finally the court looked and saw that all of the critical witnesses on this case on both sides of the case the prosecution side in the defense case are now deceased given all these very unusual and extraordinary circumstances the judge saw this case for what it was this is not a case that calls for issuance of the usual conditional way that allows an interim but this was one of those rare cases that had been recognized in the judge brady's ruling is correct twenty two forty three is the statutory basis for issuance of the remedy in corpus cases and as chief justice rehnquist said in the hilton to issue rulings that bar we try this remedy this remedial power is not limited to claims that mr stanley mentioned like double jeopardy where the release of the finding of the violation self bars a later drop are seen but it also applies to instances where exceptional circumstances exist such that the holding of a new trial would be unjust now why did judge brady in looking at this these factors conclude that it would be unjust for there to be a third trial he found this collection of very unusual except the circumstances first he noted there were two prior opportunities to properly convict mr wood folks and this case is very open and he noted in looking at those prosecutions the first conviction was overturned because of discrimination the grand jury process and the state court judge as mr stanley said directed towards it fix the problem and give this man a fair trial that did not happen they did not  has not been properly convicted of this crime but brady found more he saw instances of troubling state conduct which gave him pause as to whether future proceeding could be fair he saw the testimony of the former prosecutor in the second trial vouch for the credibility of the key prosecution witness who was deceased who could not be cross examined before that second jury where there was a lot of the p having said that the defense could not confront the witness and there was a there was a bad error he saw in this very case mr stanley tries to say that well we just decided to move m state custody to jail that was done let me tell you why that happened we filed the bail moon motion as we were entitled to do in early february of this year because we prevailed in this court and we knew that the fact two days after that comes without any notice to the court without any notice to us as they were wired to do at least of the court of the will twenty three mr woodfox of suddenly moved from state custody to the west leasing a parish detention center twenty three hour a day lockdown it's extraordinary we know of no other prisoner in louisiana we know of no as a person in the united states of america who's been subjected to this kind of continual solitary confinement when you put this all together mr woodbox did everything he could to see these errors to not take place and now he's in the final chapter of his life he doesn't have much more time and he shouldn't be made to run the gauntlet again finally judge brady but as he should have looked at the last of the witnesses in this case now it's not unusual that there is with the passage of time for a witness or two to no longer be available we know that in trials that take place two decades later that memories are going to dim there will be some lost opens but that's not what we're talking about here there were sixteen proper fifteen prosecution witnesses the last time nine  witnesses are deceased there were thirteen defense witnesses six of those witnesses are deceased and what's important about this thing is that these were not just any witnesses the most important witnesses for  instance for the state court it is it was a it was a proper factor for a federal judge to consider in making this determination of what kind of writ or issue  all the judge brady did he did not speculate as he should have speculated but we submit that it was a proper factor for him to review because all the prisoner eyewitnesses who gave variants of the testimony there all the the jury to see his alibi witnesses he has told one consistent in one consistent account for forty three years on this on this case and now he has no none of those witnesses to present before a jury  validate his account that he was not there he was having breakfast at the time this horrible event so what's unusual about these circumstances it's both the number of unavailable witnesses in their portals not just to one party or the other party but the both parties and so judge brady was correct when weighing this all together that this truly showed a once in a generation type case where there should not be further proceed witnesses there was also evidence of role investigation activity by some members of the angola high command which caused vs whitley makes it very clear there was something that mr woodfox has consistently maintained he did not commit this crime that we all know what in color was light in the one nine hundred seventy two it was a mess there were trustees carrying guns it wasn't the stand it was a it one of the time but put this all together this is these are very powerful factors and circumstances that twenty two forty three compelled judge brady to consider he considered those and i believe for the first time his  if mr wood facts has to be retried are you all going to be there he we've had to be in four different courts here on earth and there are two very good lawyers who are now prepared to represent so at that point does the question of his current custody moved out i mean if we were to say judge brady didn't get it right and if the supreme court denies cert do we have to answer the question about the fact that he's now in the state jail rather than under the order assume that that the question of whether that's a legal indictment would have to go to the state court system when it would be raised there yeah ok that's what i'm thank you th was a horrible crime mr woodfox has been twice convicted of this crime those convictions were not reversed due to trial error and mr kendall's argument is properly made to a state court jury not as a basis for the incredible remedy of discharge the issue of confinement as i mentioned it's it's in another case right now but even if mr woodfox prevails in the other case on excuse me the question of confinement there's no remedy in the one thousand nine hundred three action for him to be discharged the remedy would be some sort of injunction about the conditions of confinement or damages or both but under no circumstances would the remedy of discharge be justified even by conditions of confinement case in there we talked about troubling conduct of the state prosecutor testifying in vouching for the witness which i would agree was probably something that should not have been done on the other hand this court has held that that was not a basis for habeas relief so therefore i would agree or at least argue to you that it shouldn't be a basis for heaviest discharge either the rulings that bar retrial i don't fall within the categories that i mentioned before there are really only two one is this use your case it's a district court sorry it's a second circuit case which i didn't hear mr kendall mentioned although it's featured in their brief but judge smith distinguished schuster and i think anyone who reads used you will find it distinguishable in that case all sta remedies had been exhausted and indeed the state process ease had kept someone in prison for twenty two years without bail for an offense that he could have possibly been held that long otherwise  fours with this case the other case the morale us case as a district court case in the second circuit which doesn't look forward and say things like well we don't think this trial is going to be fair and we think that there's no reasonable juror that could convict this man well we already have evidence in this record that reasonable jurors didn't convict this man but moreover in the second circuit after the morale is decision indecent moment the second circuit was very clear that arguments like that have to be made to the state court first it has to be in exhaustion of remedies in state court so i'm not sure that morales is even good law the question of bail the state court has heard the motion for bail and denied it so that question has been raised in state court and is being litigated there as we speak and the final point i wish to make is with respect to the witnesses  now deceased yes that's unfortunate but that does not make their testimony inadmissible in crawford the supreme court recognized that is long as prior testimony has been subject to adequate cross examination it can be admitted in a subsequent case and i presume that this case would be governed by crawford and not by roberts because this retrial is occurring post crawford but in any rate that does not make their testimony admissible and further that is not to say that there are other witnesses who cannot be called in a retrial who were not called in either prior to trials there are still witnesses who are alive who may have knowledge of this event we ask this court to recognize the important interest of the state of louisiana in prosecuting this crime and when exercising the b s remedy to allow room for the sovereignty of the state to prosecute this person for a third time for the heinous act of murdering brett miller thank you and cases