two thousand and one reason any point extended this maybe even take the lesser supreme court case from one nine hundred seventy three which says government conduct may become so outrageous that it's fair to bar the courtroom doors to it no argument that our conduct here has been outrageous or even argument but he's being deprived of his constitutional right to a trial that sounds a little out there except i happen to know the third circuit is yet to weigh in on where the responsibility lies for the body is caused by a mistrial so is it your position in the you were to find an inherent power in this case one is in my experience when we prosecute cases like police brutality or excessive force we can be very difficult to get a jury such an important the other implication is this if you were to find this inherent power now every time with this record and clients to exercise that inherent power i think that has to be an appeal before a judgment because in the senate obviously you as you just mentioned the confrontation clause and the defendant's right to present a defense six moment right and that is i submit what the court did here she exercised her supervisor guided by principles of double jeopardy trial act and  jeopardy connections are that it's recognizing that there's a chance of conviction increases even though the government's evidence doesn't change a conviction because that's reliable the chance of an innocent court has another a in there's another dressing shot you were surprised by the scene at the end of the opinion that talks about the likelihood conviction increases but a judge doesn't have the authority to grant rule twenty nine motion when as in this case the evidence professional police officer witnesses that will be reviewing the testimony before they testify the second time that's what happened in the second trial they actually tell you the government got rid of one witness who offered contradictory testimony would concede that when he started to doubt when you're making process violation that's when the court can step in the idea that this is that the supreme court and also the square in fakey either held or recognized that there is  d over and over and over that under the government's theory a person could be retried if assuming no concert other constitutional violation as many as fifty times and that would still be fair world but let's assume for the moment no specific due process violation that it's just a retrial over and over that the government just keeps trying just keep trying to make it a little better each time and then we just haven't had it can we say for heracles evidence of whether there's a greater likelihood of conviction in subsequent trials that's not really a matter of evidence or science it's really a matter that's been accepted by the supreme court in case after case after case you can be green for example one of the things that the say well there's a series of factors that we consider one factor judging that he didn't talk about before is the evidence going to change very much with her seem wrong but at the same evidence is going to be put forward over and over and over and all that we have is our government witnesses appropriately granted and in doing so and i would urge the quick to look at this court's decision in web and roussel and in the underlying supreme court decisions in korean down them in jordan and somerville and all the way back to trial and the notion of retrial are inextricably intertwined and that's the only way and historically that so and so that's the only right way to read rule thirty one b three which is that the first sentence these provisions is such that that one of those concerns is the issue of the trial and so the question before this court is either going to be any limits other than constitutional limits other than due process or prosecutor the misconduct as to how that just suggest what mindy got lower courts follow is one that would apply to defense across the board to assure that people aren't tried over and over and over and thereby increasing the likelihood of an unjust conviction that judgment he's question different it is a minute to minute to constrain the district court's pew were use of its own preferences its own sense of fairness judges should utilize their sense of fairness that's for sure but those that has to be cabinet by states have specific rules that set it forth this rule because of its history and because of the combination of the discretion accorded to the district court strip that mistrial and the basis for that which includes thinking about what a retrial would be  never get reliable information on that in a federal court because the supreme court in brassfield versus united states in one thousand nine hundred twenty six i think held that it is per se error for a court to ask a jury on the cusp down the road with whatever standard your honor if he decided to go this route and he decided to adopt a standard that's a problem i think the problem i have with the entire body standard is you gotta remember new jersey  thank you very much