versus warden cambridge springs a c i mr  or disagreement among the parties that what occurred here at the verdict stage of this trial or common pleas was in fact a determination by those your honor because the claim is clearly for i'm asking you about that procedural history of this case i'm not we haven't even reached in terms of the let me finish my questions i haven't even gotten to the question of exhaustion in the back room there was a formal tally taken but we have no transcript of what occurred but we do have at the hearing our new motion a determination by judge poe soon you know that he saw that war upset with the government and he's upset with the government's witnesses hand in the middle of the government's presentation he just stops the trial and declares a verdict  doing what the crowd judge did but the double jeopardy is so important such a bedrock of the amendments to our constitution that we're just going to abide it b ecause what could happen here even though the argument was the court did not have jurisdiction you had federal civil procedure twenty nine that allows post trial somebody happened here your honor the court was without authority in following food refer back to your first question the court had the authority to direct the jury to to acquit care that authority was lacking here in the same way that it was claim whatsoever because it was not raised to that but with the superior courts that what at first glance it appears that the commonwealth is appealing a verdict of acquittal which is clearly in permissible look at that possibly mean other than i understand what what what's going on here that normally you can't appeal this then the court went on and said but in this case having discharged the jury particular claim unless it's brief to them so i don't think the court does have a fair opportunity here isn't your cost correct though about a policy underlying the exhaustion wire of the limitation of tension between the two systems and that if if we can glean from the record and in particular the language of the superior binion that they have considered this isn't that enough well even if it is enough i don't see how you could possibly glean that they considered addressing or identify the double jeopardy claim but that doesn't mean the first glance it appears that the commonwealth is appealing a verdict of acquittal which is clearly in permissible but it concluded relying exclusively on pennsylvania law that quote was a legal knowledge because judge posner it was not permitted to bring the jury back that's what it went off on right so if the concept is fair presentation and it's been words do you understand what the you know what's at stake here if you're the appellate court yes i understand what's at stake here but i don't have to get there because i can go on state law that says once you destroy a jury it cannot be reassembled and then the question to me then comes back to sanford and the surface two cases were to this a court doesn't even deal with where the district court in those cases was not again completely devoid of all jurisdiction to do anything in the case they just lacked the authority to judge the guilt or innocence of the accused so do we understand your argument in your references term jurisdiction to really mean the procedural power of procedural r d as distinct from the substantive legal basis what the call judge did there procedurally was just wrong you can't stop it got a little the case because you're upset with the government and upset with the witnesses credibility just say ok i've had  something that overplays that and what overplays that is that once you do this you can't be retried and what when and what overplays that is who suffers for the error of who want to say you are but in other cases when it uses the term egregiously erroneous foundation that that that was saying that the district court lacked procedural off already i thought your argument previously was that that  it was valid but substantively that is making a decision for example to enter an acquittal because the court thought there was misconduct in the prosecutor's communications with the with the witness  says you have to read it in conjunction with surface which says that the procedural context does matter it's a completely different question verdict was rendered as to involuntary manslaughter in that second trial should should we take it that you simply were not in the year with the state record i assume we we we need not that why did no counsel prior to this mcdaniels go say in a proceeding in the second trial use the term double jeopardy about how they were supposed to render a verdict and thought that they were required third degree murder and manslaughter jointly correct that doesn't that suggest that the confusion that became apparent in whatever discussions took place in that the liberation room when whenever one went back there related to the jury's understanding of the jury instructions that is what they were required to return whether it was joint or separate a very valid point appear per this explanation to have understood the instructions to be that they needed to return the joint verdict on the two counts so do you agree with that that that that's what i think they're wrong but that's refreshing whether they were under that impression were they instructed to fact yes or so you had a confused jury no question about it which certainly is how demonstrated by the record and who if you have a jury that has evidence through either questions or through being returned to the courtroom and expressing some difficulties in open court who responsibility is destroyed well if the jurors ask questions obviously it's the judge but i think the confusion lied on the part of the jurors  misunderstanding the instructions it was just such as are standard standards for if that's the case then in terms of what we are the practical consequences of what we are presented with here jury discharged if upon later questioning by defense counsel or the trial court it appears that the jurors misunderstood something in the jury instructions when it whether how they were to taken of acquittal notwithstanding the pennsylvania procedural rules is that in in effect what you're asking us to hold your honor partly yes and partly no the linchpin of this which makes extraneous influence on on the jury understand that the question is simply where the superior court here in setting to pennsylvania's supreme court case law and talked about consideration of the evil inviolate once recorded and the jury destroyed shall not be permitted to impeach or alter or and then after separation or discharge you seem to be asking us to hold that that that procedural rule that state law is unconstitutional in violation of double jeopardy if it turns out from the post destroys questioning that the jury misunderstood the jury instructions yes ma'am and that argument that it really is a different double jeopardy argument that was or are eyes were very end of the double jeopardy claim that was being considered a trial court level then was  that was an issue that was before them issue before the first trial but motion watch in which they specifically in the hey this isn't a case in which we're being asked to overturn a have a verdict of not guilty to a third degree murder charge liberty something that is offered as a verdict of acquittal and deep do you disagree with that reading of the supreme court cases and if so what do you make of the language verdict well the the very he was and with and at the end of the case not make case there's a factual determination the factual difference and there is none when it entered on the express authority out and strictly in compliance with the applicable procedural rule right what but what does that language mean if it doesn't have significance to whether the verdict is considered a jurisdiction at least in the sense that we we i generally discuss jurisdiction to talk not procedural realty and doesn't the supreme court's language martin linnen indicate that it attaches significance to whether the the verdict so just one brief point of clarification it came up during council argument there was no claim of trial counsel in effect and mr failing to raise the dull temper he claimed that's ever been raised in federal court so judge is thereby art from attempting to override or interfere with the jurors independent judgment in a manner contrary to the interests of the accused because such a limitation on the role of a trial judge or whatever has never inhibited is ruling in favor of since then that makes a difference i will scan you explain that language in martin lynn in emphasizing the court's accordance with federal procedure and i know i keep referencing these cases but i think the report and i think that point is reinforced in the was six away would be equivalent that's going to not be an analog to it and because the judge did it for us as a practical matter that's it that's that's how what happened here so why should we have to do something that makes no sense well the judge has the jurisdiction to consider things afterwords you know fact what the judge did