trucks and released the judge even recorded in the documentary jury trial begins the judge was acknowledging that jury trial started the following day court we can be declaration of mistrial the court concluded that mr perkins case a in the specific situation it was presented with would not be the best way for mr mcclure who was first pony trial by himself and as a result he declared a counsel could have made a gesture at that time and didn't i would argue though that given the conclusion or a nature of the court's findings that an objection really would have done any good in this situation the court didn't ask for input jury trial it was to declare a mistrial it was the sort of thing where the court was asking for input from what you may be right that this was a done deal but to what extent should the filipino to raising something i'm not sure that the defense counsel believe it was necessary that you raise nor and eyes convinced that it was necessary to raise prior to the second trial well the point is if they had raised and the judge had ruled that shepherd attached there case what constituted a member of the defendant's peers who were sad to hear this case a member i'll ask it to one person constitutes a jury i would have to i would say it would have to be more than one because the the was really says a jury selection was not complete do you find any cases that say that constitutes the panel of the jury in other words did you find any cases that involved a shortage i did not find impact on the case of art in davis twelve jurors have been selected and sworn to jerks after the state opening statements came to the court and said we have great concerns about continuing on this story and the to itself and it's in the record the court said i contemplated having the court services real boy tyrants lead to additional jerks but i didn't think that was proper because the existing jurors had already heard these states so i didn't want to do that then the court went to the defendant and said defended this is the situation would you agree to proceed to trial with ten verbs and the defendant said no left without any other alternative the court declared a mistrial and there was a manifest chosen and scott to the defense in the state selected the jurors my recollection is that they were from a broad swath of you know different educational and occupational backgrounds this was the jury that he wanted and beginning have been a jury but was it the jury i mean it sounds like you're being overly technical but surely you same surgery the jury selected to try this case which the selection process had not  selection process had not been completed to the degree that to select for perjury it may not have been as just spoke pointed out that the jury the horror into spaded would have been selected but the court said twelve into alternative but it was the jury that up until that point had been sworn and the jury that scott had chosen the a defendant in illinois has the right to proceed to a jury trial with less than twelve jurors  and that's that's absolutely true all i'm saying is that when you have a decision of declaring a mistrial which it might be a very minor point but i would argue you can't have a mistrial without having prejudicial i'm declared a mistrial as a trial judge i've read with that that i don't i would have a public that's what happened in libya but where the jury has been sworn where the jurors have been sworn i think that is takes it out of the realm selected as opposed to swearing that the entire jury of twelve let's see which would be the dork would think this is something that's going on and i'm just this is that not that i'm aware of this this is the first case i can remember seeing  be i think the theme that i would use when i was explaining to a friend is the court messed this up that the court should not have sworn these jurors and i understand why the court did it the court had selected these jurors and pails of four didn't want them sitting around for the rest of the dozens maybe of the three figures juries could easily have been during that period of time i never swore i'd say ok folks you're excused come back tomorrow and the rest of the jury selected minions for the jury so what do you want what's going on here in that i have no idea the one thing i do know and the thing i think outrageously more about this case than anything else is the fact that as a result of this mistrial mr came and went and sat hill for another forty two days i explained in the briefs there are still if a number of reasons why this issue should be reviewed even the defense counsel to object at that time including being reviewed because of play here again during this court's attention to the larger case which was out of the sport the court said that a conviction that violated double jeopardy is a substantial injustice that may be reviewed displaying air you raise in play yes yes players and race in this case what about i a scrupulous exercise of judicial discretion discretion leads to the conclusion that the ends of public justice would not be served by continuation of the cd that's exactly what happened here there was no showing of any manifest and ceci and the court just because it was concerned that an assistant state's attorney who expressed no doubt in his ability to continue with the trial or even let's step back for a minute let's talk about a two month trial there was no reason that the court couldn't continue selected for more or good afternoon your honor is my name is john zimmerman or mr prosecutor's office from the previous discussion you're having with counsel i think the main issue in this case is what is the jury in this the framers of the last constitutional convention was to maintain that twelve jurors they in fact removed a portion of the constitution that said a jury between six and twelve for certain civil matters however since a defendant can waive his right to trial by jury can also waive his right to a trial of one of twelve jurors but this waiver must be affirmatively shown on the record in this case the defendant never waived his right you never need made any motions oral  because of the fathers in the jury the man prosecutors inability to prosecute the case she was the one who was out all the prior proceedings i think and this mr mcclure was only there is more of a shadow not really and we don't really know do we i mean we don't have any indication by mr couper that he was not prepared to go for it right i believe that is correct and i when i look back at the proceedings i'm not sure they exact number of proceedings that mr mcclure's that but i don't think john i do believe because for all we know it was a shirt and which case what we got done yes unfortunately the record does not really give us a lot of facts to rely upon i'm not sure if there were discussions outside the record it seems to me that is there is any indication we do know of any reason why this trial court heard his practice because that's my inference nothing unusual about this case of selecting panels now besides the court statement to both the parties of how she did it she didn't explain why just how but i think it is noticed or notable that she did state it was going to continue until fourteen soldiers were selected twelve plus two alternates i think that shows that the parties were aware of that and if the defendant wanted to raise an issue with that he could have been stated well i'd like to go to jury trial with less than twelve years as the number but don't you think it's with that he didn't really buy any response from either party right that's correct but as your honour's were stating the defendant didn't just say quietly day he said yes ma'am i'm look for any cases from any other states no case in well the cases i did cite in my brief i believe it was live as he did distinguish it was unsure whether they were sworn but there was also forfeited these claims for state contends that he did because as i stated he verbally acquiesced he did not file a motion to dismiss crown prior to the second trial i think that's also very telling if you was really concerned about double jeopardy issues you substantial step that it would indicate the jeopardy have attached that to me is the rule that should be adopted here the the cases in illinois say jerry attaches when injury is a penalty and i can find no case that says jeopardy attaches when a jury of twelve is in pain or a jury of twelve and alternates are sworn in this case the defense and the state the liberally selected eight jurors into panels of four after those jurors those specific jurors were selected the court swore those doors this was a jury that wasn't handled in sworn in may not have been a jury of twelve and it may not have been the jury that the the court envisioned when the court began boy they are but before the court declares a mistrial the court needed to make sure there was manifest necessity here because jeopardy had attached the the swearing in jersey is not an insubstantial step it's something that's very important to the system and when the definition of time regarded when jeffrey attaches is directly affiliated with the time and that specifically in regard to the fact that this was an issue that was raised after the second trial in the can all men essentially say that when a defendant makes an objection during trial the fails to meet and that objections of a rule but he fails to include that in the post trauma you know a circuit that was air it can still be reviewed on direct appeal because the court has had an opportunity to weigh in on the court obviously when the objection was mediocre ruled the analysis being if it had been  motion the court probably wouldn't change its mind under nothing at all and i would ask this court to still address the claims even those raise the double jeopardy claims even though they were raised after the second trial because the court had already had an opportunity to examine those claims when defense counsel filed its motion to its push from the japanese second trial asserting the double jeopardy so those those claims i believe are preserved the other thing that i just want to say before my time  s this is a case where the state has forfeited for picture twice the the state initially during the hearing on the post trial motion raising double jeopardy after scott second trial never argued the dilution was worth it for any reason