to the judgment and the court indeed said the sixth circuit below most greedy amongst its errors was that bad court had failed to recognize that issue preclusion is reserved for p in this case the government was the prevailing party before the jury because the jury unanimously recommended but the defended be sentenced to death on both counts and i know that because the jury did not find that these two non statutory aggravating factors were proven in did not consider that in balancing be aggravating and mitigating factors and determining  sentence of death which warrant so not only does the jury's findings with respect to those factors against the idea that it was essential to the judgment on  body where the ohio courts had to balance the aggravating and mitigating factors and one of them was the mental state that defended the jury did not even consider these non statutory aggravating and i understand the point judge ledge and i would i guess my answer would be that the average person on the street when for example  is that it may be that somebody on the street might feel that that is going on here runs afoul of these principles but it's not as a  don't statutory aggravating factor is neither sufficient nor necessary to a judgment it plays a different even statutory aggravating factors under the federal death penalty act or to find out that in draw from the perspective of the aggravating factors in the sense that the purposes of the double jeopardy clause the supreme court upholding versus arizona made clear that any aggravating factors is is not does not be jury as a gateway eligibility factor how to find it at least one statutory aggravating factor was present in contrast the jury doesn't have to find it any nonstop statutory aggravating factors are present when they find it a non statutory aggravating factor has been proven it's just considered with the other proven aggravating factors statutory aggravating factor or a finding that a non statutory aggravating factor does not exist that cuts against the ultimate judgment that's what the supreme court said and body again here it's even further removed from the situation there because they deem the words actually balance the bit gating factor in question well here because the jury found that these two factors had not been the argument i think there are several reasons and i do i do apologize as we noted in our letter for you to make clear that these were not acquitted counts it was a quick theory but i think there are t requirement and we body versus peace which was decided twenty years later it's clear that that's a touchstone for operation of the judgment  points one yes these were not as they were theories but the defendant was acquitted at the phase of felony murder that didn't happen here the defendant pled guilty to both c the indictment and so in distinguishing coleman versus arizona the eleventh circuit said we do have the concern that the supreme court addressed about trying to figure out many trials about aggravating factors that once again if it in setting out the test itself not only did the court not discuss the essential to the judgment requirement but it did not appear to be in order to meet that was advanced by the state