it was this quote my client thinking he's being cooperative talks to them says yes i know kind of cooper you know i have been childhood friends defense counsel said this during her opening statement right after the prosecutor had told the jury two of those mistrial here violated federal constitutional mistrial should be granted only with the greatest caution under urgent circumstances and very plain and obvious cause and specifically when something happens that needs to retrieve the body taint the judge he very frankly said you know i might not have resolved this i probably wouldn't have resolved this the same way but there's a tremendous amount of discretion that trial judges have in deciding to grant this trial  the prosecutor certainly urging the original judge number one to do that because he thought it just put a different spin on mr flint's relationship with cooper and cooperative and all the rest of that and you know i was judged restocks said you know maybe that was an overreaction but was it so far out of line that the stream remedy require you are and the answer is yes and i think that that's revealed when you look at the full record or at least the lack of record here so when the prosecutor makes his mistrial you know his motion for mistrial the trial court statements you have to judge words i completely agree the judge doesn't have to say manifest and says i need the judge doesn't have to say prejudice but there needs to be a record and that's why i think witness of but there's another aspect which at least you can rest for me the st trial judge certainly didn't spell out things that way you're saying he should up and maybe that was a mistake but by the time you get to judge schroeder he's very focused on manifest mississippi he gets a transcript he talks of the st judge i don't know what else he could have looked at frankly that would have shed light on it and shouldn't we as a federal really confined to the mistral declaration itself and in this case again it's three now pages there's no break for research like there was in arizona versus washington where there was obviously i'm fastly more prejudicial statement where they said essentially saying that the statements implied that flip was cooperated with police and therefore lacked consciousness of guilt we have to treat deference to that well there should be deference and required to do that and on top of that the state courts assessment of all of that has to be reasonable so so you're a couple of steps removed in some cases from an actual ruling on whether the lawyer made a mistake in performance this co reads a lot like a ruling in the alternative that basically cuts right through and says it can't be defective performance if the problem is that you failed to raise an objection with no merit and just saying there might be some instances in which the argue you're making would have merit but then there are maybe other instances where the state appellate court is looking at that performance argument never mind prejudiced looking performance argument and actually just says  course it doesn't affect the performance it was fine it was no there was no error and right oh and let me just throw in one of the questions suppose we read with you that that that is just sort of structurally impossible to use the underlying ruling just for the sake of tease me that that's true judgment what this report says is you get judicial discretion if the record reflects that it's been scrupulously exercised that they've been very careful in terms of how they exercise the discretion like in arizona versus washington where they took a break to brief the su to see whether it might be admissible here rejoined with a summary declaration of a mistrial in three pages of transcript so i think that is the difference is that the record doesn't reflect that there was a quote exercise of just like they were the parts of the transcript exactly the statement for which the court declared a mistrial and the state courts assessment as to why so i'm not sure what else could they have provided the the jury once again defense counsel's arguments are not evidence which the court actually told the jury twice or so there was many many different things they could have done to address any possible prejudice but when you look at the statement itself it simply doesn't appear prejudicial at me ask you about one of the troubling parts of this record which is that the state pops up and asks for a mistrial it seems to me based on pretty thin cause and two days schroeder st of all there's nothing in state law that requires this motion to dismiss before the nd proceeding requires it could be the day before the three weeks before the state mark is silent on that jeopardy had not yet attached in the nd trial the jury you know so it was it really hadn't started yet and on top of all of that judge schroeder says after he raises the point the defendant doesn't have to make a new motion just because there's a new judge in the case confirms the cheapos mistrial you seem to think at that point the defense counsel should have brought it in and said you know i don't have to make a new motion i'm just just to be safe i'm moving to dismiss based on this double jeopardy point when it's obvious that that's exactly what judge schroeder is investigating so i'm at a loss to see others in the most rigid formalism which lead against canada does not seem to rule requires a motion to dismiss before the retrial begins and that's what case law including state vs court says and they do for arsenal equivalent of that before the new trial begins when judge schroeder says i want to get clear in a couple of things what happens to lance trial then there's this whole exchange that takes place he's being very conscientious and it's quite admirable just doesn't seem to me that there's any opportunity to state level especially since he tells the defendant you don't have to make a new motion and this is the point of the make the rule that it has to be made before jeopardy attachments no your honor and that's one other point the judge would make that i want to respond to as well so let's position in the reply brief is that the make role does require a pretrial motion to dismiss he just thinks this trial didn't begin that one the trial court so it's fine they ruled against a double jeopardy issue because a jury had been sworn at but there are couple problems with that approach one is bad it ignores the concept of continuing jeopardy if a mistrial is granted at least probably at the st trial and jeopardy which a cache of the st trial continues into the nd trial which is precisely why there's no double jeopardy objection right so i believe the distinction so basically continuing jeopardy is more of a conclusion than really an analysis so really the idea is that if the mistrial is properly granted then there's continuing jeopardy which while the jeopardy begins at your break likely under your continuing jeopardy theory it's impossible for counsel between the moment that the mistrial is declared and the moment a new trial begins to make a timely motion because it's always an earlier wisconsin court of appeals case state against and solace we have held that a jury trial commences with the administration of the jury's oath wisconsin statutes say jeopardy attaches in a jury trial and selection of the jury's been completed in the jury swarm supreme court it says in martinez against illinois a jury trial begins and jeopardy attaches when the jury swore so if you're the easier it makes me think that you're making a desperate procedural argument because you don't want to defend the merits no your honor i'll gladly spend the last three minutes talking about the merits but i just wanted to address the procedural default question because the courts and even get to the merits if the claim of the altered not time is short i want to direct you back to judge woods initial question at the beginning of your time ms moore this witness who places mr flint at the scene thanks she had not been interviewed at the time of  idea that the normal procedure in criminal cases is to address a forfeited claim within the rubric of see the effect of assistance is this is the linkage that brings in the mistrial argument the underlined decision you're asking you know a question with a higher threshold i'll say that the underlying merits are you know level ten you know the threshold for finding error in  the st instance is at a level fifteen and for a federal previous court you even have to say that that finding was sound reasonable so it's so far removed from the underlying merit some uncomfortable because the phraseology see straightforward ruling from the wisconsin court on performance issue on the effectiveness of counsel so why should we didn't me honestly i can think of all sorts of circumstances where the state would be screaming if we went and looked at the underlying decision on performance and said well that's a that's a ruling on the performance let's go with it well in this case your honor the  i guess i would just sort of reiterate that what the state is asking this court to do with regard to the you know regard to the interview issues essentially create a new rule that has never been adopted by any circuit court after a contested region there's the   police would that have been yours in other words is the hearsay part of his statement that they were friends or is the hearsay part is just a factual statement he was cooperating with the evidence will show that mr flynt  statement is that they were friends the fact that he spoke with police was mentioned by the prosecutor joining the prosecutor's own opening statement of the st trial and certainly mr flynt was free to justify his own defense and he can say yeah the police