d in the state's case and she likely we have some agreement on this point with the state of mind and we both agree that the review should have been combined confine the review of the facts should have been confined to the state supreme court in jackson says look at rule twenty nine is the best example of that and says here's the judgment of acquittal procedure here's where we allow defendants to appeal from decisions made you understand that you created a  because when ship wasn't a criminal trial it was a juvenile flexibles what they call the informal adjudicatory proceeding and it was set up by state statute and the state specially said well in this informal juvenile procedure and set it up due process requires a reasonable doubt and winship develops into jackson which is to patterson and to jackson which is another state law case all these are state law ca we can look to the equivalent and i know that's frustrating but the u s supreme court has never said if you have a right to appeal your criminal and in this jurisdiction you can probably see five six seven different methods of appeal set up by the state they set up  but you can't deny the defendants certain due process protections when you're peeling one of those just got to give them counsel they've got to have somebody help them with you feel process and then along that you've got to have a and i think it's sort of the station here your honor what you need is when you've set up that statutory right or that determination into the things it has to meet the jackson winship patterson standard has to be reasonable doubt that proof offered by the state and that proof also has to be every essential out i understand that argument right but i'm looking for clearly sta what smith in those cases will say the right to a directed verdict is not honest but i think jackson and all and winship especially you have to meet the standards and i don't i'm not answering your question one front of them might be able to persuade us if we can do that independently of ed but ed to says we have to have clear supreme court case law on the point before we can go for you on this issue well i said then i think you look at smith and these other cases standard that's what they review the standards we only review the state's case and if and then practically it's not harmless because the mere look relying on that ruling and then went forward and he could have put on any sort of evidence after limiting its case about what i think where are you going is that there's a due process right to the determination based on jackson our winship at the end of the government's case under montana law and because that's been given the defendant if he's entitled to his director verdict that point doesn't have to put on evidence in which he runs the risk of furthering in completing himself that's what you're worried about is that the evidence that you put on hoping to save myself turns was wrong just in the government's case in chief well i don't want to concede that because we didn't get a fair chance to argue that i think on the mattress and so that's why one more thing we agree on i this is the underlying principles and then incorporated with that though is that the mind kind of supreme court has integrated that law into their determination so it's kind of two ways to look at it one is that i think the u s supreme court has said here's the procedure here's the baselines force and then the montana supreme court has certainly got up to that reason and said that's the way we look at it too and we say that this is required i wonder if the legislature wasn't going to address it has to prove that the defendant was out acting under extreme emotional distress for which there was a reasonable excuse as to party hats and it's an extremely hard curtain to me but you would say under the statute as  because there was sufficient evidence of mitigation both presented both during the state's case in chief and during the entire trial i think that issues the mayor has raised regarding i think that's really the only reason smith is relevant and the only other reason it would be relevant is if that meant trial motion for directed verdict were granted and then i would agree that that would constitute an acquittal and retrial would be barred by double jeopardy whole record evidence amir's conviction the state's history of the double jeopardy would far further proceedings this is outside the record because this is a new argument i mean but if you look at forty state that's a state law set up it's a state law provision and the state is now saying that under smith that state law provision would be invalid because it doesn't meet constitutional standards set up evidence and that's what small intestine that that's his right that's how he understands how to go forward with this case is by giving him the opportunity to make sure that the state think that the district court or any state system if they had this made traveling could say if you prove two out of three elements or you have a preponderance of the evidence that's ok that meets federal constitutional i think you're right i mean i think smith says that that they could the congress could just a lemonade a rule twenty nine and i think that's what makes that footnote and that i hang my hat on so important that the u s supreme court only has to be four out of the five elements or a majority of the oil that they couldn't congress couldn't do that that would be unconstitutional i know i mean i'm not sure i want to pursue this too far but why could you congress does not have to against that a little bit and so what i'm going to do is i have passed a statute that says the end of the government's case and chief if the judge thinks that the government's case is laughable that's the word on the statute  d judge is free to make it's a matter of judgment of but that's not constitutional i mean that it's moved in the direction of protecting the defendant more than the defendant has already been protected but you say that