next case is zero six seven two four nine eight united states versus the united states district court helen herald as the real party in history good morning gentlemen i want to a jury trial but the defendant's right to a fair trial overrides the government's right if there's you know in his view there's too prejudicial to have a jury trial that's the essence of  wrong with that one is this is not a balancing test the judge does not sit down and decide whether or not the government's interest outweighs the defense's interest the government's position is that the proper test should be first of all i believe what the supreme court says as we do not need to decide that issue leaving it open they are ok so there is no law on it the only law that you would not give you and i didn't see when i could see that point you're saying no there's no circumstance go willingly with him the place turned out to be maryland where he brutally assaulted her burned her body to ashes and her clothing and dumped it in the river she was he was charged with kidnapping and the question was did she at the time that he took her into maryland have the intent to commit a crime and the government was allowed by the surf court to put on evidence of a completely separate more difficult in terms of getting a fair trial when you think well i'm not sure i mean children are a very very sensitive issue but there are issues involving people who are murdered people who are killed most of them young black males so that there is that additional problem of the racial issue because he was white and they were black he buried them in the basement all these people were tried by juries in sacramento alone i'm in the richard trenton  chased let's kill it was convicted before a jury of killing a woman he first killed her he then sodomized her body he then this some bottles or took a plastic yogurt cup scooped the blood out described more fully in the briefs i had while methods of x that these people have been doing before the incidents took place that showed that when the for instance in the first three counts when the victim number one went from california to texas that the people in texas knew what would happen to him when he got there defense continually characterized this is as a technical issue it is not a technical issue the issue is own children beforehand and that they knew each other and that they could therefore anticipate that these kinds of things would happen and that that was their intent to bring this person down here not their stated intent which was to homeschool  but it is still up to the district court to decide and this is part of the fairness of this whole thing the district court has the ability to say that some of this evidence if necessary is too prejudicial that's why we have these rules and in this respect i would like to contrast the sixth amendment which states that the accused just entitle to an impartial jury that doesn't say a fact finder impartial jury and contrast that with the due process guarantee of a fair trial the due process guarantee of a fair trial has to do with the procedures of trial and there are wealth of them here that the district judge has yet to try and which the defendants have not even asked for to guarantee that they get a fair trial and to guarantee that the jury's impartial but that's what they are entitled to an impartial jury nowhere in the constitution or the rules is there anything that says to the contrary so what the judge would have to find here is that it is impossible to find an impartial jury not that he would do a better job and in fact who's right is that who's right is what for the right to an impartial jury has a right to an impartial jury not i don't think he would want to waive his rights with a partial birth because that would simply mean that i don't care if my theory partial or not well the state has some it is really we're talking about waiving the impartiality or waiving the jury well the singer says quite explicitly you do not have a right you have a right to waive a jury which means that you're not demanding your jury right but that does not mean that you have a right to demand bench trial alternative which is left open by singer is that a defendant could show that it's impossible to have an impartial jury and you have to determine that you have four tire in which each of these defendants would be able to confront every potential juror and ask them look this is what this case is all about these are the kinds of kinds of facts that you're going to be presented with and this is what we're going to ask you to do and you do that i'd like to point out that in the brief that mr locke wrote he tried that and he went around to his neighbors and the ones he talked to were quite honest about that and most of them are all of them he says i don't have any talked to said no i couldn't do that which i think stands for exactly the opposite proposition than the one that he is arguing for it shows that when we put we may need to put a lot of them there when we put those jurors in the box they will tell us  under the circumstances i'm going to overrule the government's failure to consent i'm going to overrule i think that's what she asked ok with your answer i think we would we would probably say that at least it's not well i suppose that in that situation if it had gone that far the judge might be entitled to reach the conclusion which i said earlier that it's impossible not that the likelihood outweighs our interest but that it's impossible to choose an impartial jury not all the i's and cross the t's in this case that were cured or that's what i'm saying he didn't even use the right test he tried to balance his appeal his perceived ability to be fair against the ability to be fair of people he has never seen and never investigated the possibilit is limited by the fact that they can't use that power to violate another provision of the constitution and bax and is that kind of a case they have right to cram three challengers but they can't just the chinese people for having buildings over particular kind the government has the right to prosecute but they can't use that in a way that violates the constitution the government has the right to consent in this case where you're dealing with say a felon in possession of a bank robbery case and the felon in possession of just two charges and there we buy for kate the charges in the trial because we know that a jury is not going to be able to perform the mental gymnastics of disregarding the fact that this defendant is a fountain while they're trying to decide whether he's the want to commit the bank robbery it's also similar to a brutal issue in molestation was there criminal sex acts and then the defense is the jurisdictional issue what was the intent of the people what was their knowledge at the time that's an element of well right there are elements of the same case so you can't split so horrendous that just explaining the bare i mean i can explain it in three minutes to somebody and they're like i can't believe that actually i mean i have done this a lot of explaining to other people to try to figure out what you do in this case and you know my sister says well you wouldn't take a case like that right i mean it's this stuff is horrendous it's seven year old girls which the defen the defense is certainly not on all of the charge just what are some of the charges that at the time the child went across state lines the defendants either had not wanted i represent knew that mr garrett had been molesting children prior to that time why is that the kind of thing that fair minded people would be able to chew on because this is the kind of case that they're going to convict the librax for even associating with mr herrick for letting presentation which is where they become an adult they recognized as an adult and their presentation involves the performance of anal sex vachel sex and oral sex with mr herrick at the age of fourteen all of those girls were taught to have oral copulation at the age of seven ok i understand if you have it you know the defense to this right we have the defense to in particular to the first three counts because that's the beginning of the events a lack of it's an issue of lack of evidence but the point is it's once you hear the horrendous stuff it's like knowing that you've got a felon in the case and no jury it's  mean the courts make this determination all the time in various contexts no jury is going to be able to perform the mental gymnastics of saying ok we put that aside now we try to figure out what mr harr impossible human be human beings cannot perform the function of putting that aside i'm less they are acquisition unless they are professionally trained lawyers and judges and we've made  considered opinion decision that actually asked for a fair trial rested with a trial judge that's the only way we can do it the government recognizes that they got a great case and if they can present this to a jury because the jury is going to be so appalled at this that they're going to convict the people regardless of whether or not the government has sufficient evidence to prove beyond a reasonable doubt your jurisdiction all that the jury would be able to handle this kind of a situation i think this is exactly like i think it's exactly like a felon in possession where you you know we're trained lawyers it's a figment of somebodies imagination  instructions are going to be able to deal with this the jury's going to hear the instruction they're going to go out there and they're going to say can you believe what he did can you believe it can you believe these people associated with him can you believe these people sent their kids to  saw it i frankly was i was astonished that the government wouldn't agree to the waiver actually it would make a six week trial containing all of this horrendous stuff into probably a five day trial because the judge is going to hear this garble stuff wants i mean the judge already knows the horrible stuff and that's going to be the end of that part and then it will be what do you know what can you prove about the jurisdictional part of the ca regularly i mean it's a it's a very very unusual situation would if we made the precedents not i don't i don't believe so be in in most of the cases it's not going to be the defense of  i know this case and facts are so horrendous that the jury is not going to be able to form that mental gymnastics required to put that aside and focus on what did they know at the time that the kid went across state lines they're not going to do what they're going to say these people are so bad for being involved in this that we are going to convict them of this regardless of what the evidence is on the other  well i think a lot of the people will say stop i don't think that everybody will fess up i think some people say yeah i can do it and then when you get there it's not possible to do the same thing with brut n it's the same thing with a felon in possession that's like anything any jury trial with bad facts i mean people say i can't hear cases involving drivers because i know you know my relative was killed by a drunk driver the every day  had a hell of a typing injury with timothy mcveigh in oklahoma and they had to move the trial you know elsewhere i mean that there are ways to control that the there aren't ways to patrol this part of it judge this is so bad that trials children are worse than prior family what he did with this family what he did with his second family it's so horrendous and it comes the end on every one of these counts as for what the evidence and you  the extraordinary writ of mandamus and the standard is clear air as a matter of law in this particular case if we look at what the just report did with your honor's have done from the application of law to the interpretation of law from the beginning to the end on every single factor the district court not only did it accurately he did it correctly for example on rule twenty three just record cited it and examined it on page thirty to thirty one of the transcript of four nineteen it was an absolute correct analysis of the law and there's no dispute by the government that it wasn't correct analysis of all as the defendants constitutional right to a trial by an impartial tr at page three the district court applied the correct sr standard for impartial jury whether it's impossible or unlikely thing or actually the whole thing as a thinker was that there is no constitutional impediment statement by various defendants including mr singer that he had a constitutional right to waive jury and that was the issue presented singer and as justice warren indicated for the man in this court i believe there is no constitutional right for the defendant to a jury today when it started its brief is trying to fashion some sort of governmental constitutional right to a jury trial by by commenting on article three section two of the constitution but in fact the government in its reply brief leads off with a discussion of pat versus united states but doesn't talk about what patent stands on that patent specifically says that that provision of the constitution article three section shoe does not confer upon the government in any way shape or form but a constitutional right well the people the draft that it simply said what they said in the rule and it's a rule that gives the government the right for example to plan for a challenge is there's a rule that allows them to do that but the court has determined in those situations that if the government exercised its right to first  history for all twenty three to determine what exactly did the drafters were thinking about and he has an actual explanation in the transcript of what he believes may have been the cause but there is no indication of what congress intended by that by that rule whether questionnaire he made this ruling after after telling both counsel not once but twice not all counts all counsel scuse me after telling all counsel i will abide by any provision any way in which you want to do bradley or you want to  case he did it right he did it right from the beginning to the end and it would be wrong for this court just send a message around i was concerned about precedent it would be wrong to send a message to the just record that what he did here was not the right way to do it every case cited by by the by the government the court read and examined the court looked at all of the things in the court's brief it is absolutely right on the money and how these patients should be dealt with if this court isn't mind you wish an opinion in didn't waive it is because i'm not confident i'll get all the evidence rulings right right he dressed me with that view with that one well you know i think that probably it's almost too polite for the judge to say that i think what he's trying to try this case totally impartially and in making that decision he had once been linked in this case which we don't we can talk about today which is in the briefs he had a prior trial of mr watts lying in state court prosecutor we felt that the jurors worked on our side that the jurors were in fact not impartial so he had actual they heard the evidence that's out after  mention of cases like truth in that and i think actually those go to the government's favor because this is how the system is still is to work the district judge search the job of the filter of necessity hears all of this evidence but if he does his job any evidence that is overly prejudicial will never be heard by the jury so the jury which is presumed by the constitution to be the best of all fact finders is not going to hear anything that's overly prejudicial so even if we  have no reason to believe otherwise or judge sharp as fair as anyone else then she is going to be exposed to evidence to jury some of it all of it none of it that's up to judge shop and so that is one of the reasons why we have this divided system where the judge screens the evidence first to decide what the jury does get to hear counsel what's your response to an argument that we have in this case something that we didn't have any other found these children to be very believable there's also one thing working here that i didn't bring up before which is the fact that the there's no evidence that i know of that says that a judge can be as a general matter more impartial than a jury maybe they can maybe they can't we submitted a study that says no that they're not that they're both about the saying in this ability to forget evidence and that that's why this defied system is the best and i think that what's important here is that the constitution flatly say yes this is a country where we have trials by juries are there are exceptions to that we found out that the