ok well opposing counsel cites i think in a footnote this really great case for you fine to be done have you read that now this case is it's a really good case for you and i want to there is this possibility of getting relief now and knew they would be better suited to to to flushing out all this these these facts and having another hearing on that but i think if the district court were to hold a hearing i don't think that's not our on the record is going to be brought out i think what's going to be said is the witness testified in the middle cross examination he pled the fifth the judge stopped the child declared a know your honor we want to continue this is a good that's it wouldn't that be in the normal reaction that teed up after if you've ever been in the courtroom when somebody has taken the fifth when it's all exploding like that you want to keep on going don't examination of the witness after they had already admitted incriminating facts i think and i think after and you know i know that the state's going to cite that a lot of this is off the record but when you read the record of the judge comes out the first  tried this case now that is no excuse in this case because we expect you to be as familiar with the record as if you had tried to do that and i think that's one of the things the lack of objection i think that would look to play an error i think in this case i think that it's it was an error to allow the witness to stand on the face of that already second chance clean up their case for a second chance to present a more polished case in front of the jury which when you look at the rights of a double jeopardy one of those is to have the right to talk you know it would be you believe you'd be clearly abuse of discretion if you had made an objection or the the lawyer who was there but since they didn't then we analyze it under plain error just like we analyze all these other cannot stand you can't pick and choose on the fifth amendment once you come forward and that's and so i think i think the fact that it was coming out and then again this is coming out of date every question is whether you have a objection yes i think you know again i think i think injection with an explicit objection would have helped the record and help us arrive to you know a better place today and maybe somebody cleaves to fifth you can require them to do it right there in open court in front of the jury there's no rule that says that somebody is pleading the fifth did you get a mistrial and or that it doesn't have to be done in front of the there's some jurisdictions to say it has to be done not in front of the court it's right out there in front of everybody under texas law and i so what would be the basis for the mistrial the basis for the mistrial i think if you read the judge's understanding the judge's rationale was cited the ex is in the first court of appeals opinion the judge says you're going to be denied across so that's that was that seemed to be his reason was that montana was mean  denied across it's a pretty darn good cross isn't it if you can have the person every time you ask him a question say i'm certain my fifth amendment right and then they can't really do anything i mean that's a positive thing for a criminal defend trial is going to do is going to be this is going to be this is going to be prepared differently this testimony is going to be polished it's going to give the state you know pertaining to perfect their case and have a second bite at the apple as that person  out the other person who the person i'll be off the record but from my understanding the person is not charged the person will be granted immunity in the person will testify again or have they been granted immunity already that would be for the state to answer ok that would tell you wreck there whether or not you'd be prejudiced in your retrial exactly and that's and again i don't want to speak outside of i want to speak outside of the record but that's from my understanding the state of course could get it i don't even know if there's been a decision made to that but the trial was let's get to that but first of all what's the status of the witness in the new trial martin who was one and as counsel pointed out the suit is off the record but i've spoken to the prosecutor who currently is handling this case mr frost has now been granted immunity i believe that the issue at the time was the acts that mr fries admitted to on the stand were unknown to the state until that very moment well that's a different trial that gives you the sta better advantage of the new trial doesn't it it does but i believe it also gives an advantage to the petitioner because here we have a case where everybody knows exactly what he's going to testify about it's an issue of credibility for the witness that was not me the basis that it seems to have been defense counsel at trial who who as i pointed out in my brief really raised the issue of not being able to do a proper cross and what we do know from what is cited in the appellate court decision from the state of public court is that there were  protracted discussions that were had in chambers between states counsel and defense counsel about this issue so its defense counsel wanted to object to the mistrial he had ample opportunity to do so both off the record and on the record and failed to do so so i don't know whether he did it off the record because that because by definition it's off the record correct all of this yourself record it is and another fact off the record which goes to point out that if we are going to decide the double jeopardy issue i think that remained to the district court to actually get a proper record developed on the issue would be important but i think that it's also important to point out that the was declared in september of two thousand and thirteen and defense counsel didn't file his read objecting on the double jeopardy grounds until november of that year so here as you pointed out the trial court did not have an opportunity to address those objections until well after the mistrial had already been granted and they're not saying to the untimely it's timely because then you're announcing that you might retry him and it was actually set back on the docket for the mistrial was september eleventh it was set back on the trial docket on september thirtieth and the r was not filed until november eleventh so we're looking at well after noticed had been granted that there would be a second trial and i think that was even discussed as the mistrial was being declared in the trial court but i think here  what the real issue you have a transcript of what actually happened in the trial no sir not on the record before you only that the only excerpts that we have from the trial transcript are what the first court of appeals cited in their opinion  mistrial and he is then the issue of double jeopardy is clearly before i disagree the state's opinion is that right used your ethical duty to cite this terrible case for you it is a terrible case for you isn't it i think in some ways but there are several distinguishing point that i think  this court first the defendant in that case had been adjudicated as a juvenile in this situation we have never actually the defendant has never been convicted or acquitted up this crime so i think what we're really looking at especially in light of the state  decisions on the double jeopardy issue is that this isn't double jeopardy but it's continuing jeopardy i think it's also important to note that fame was decided in one nine hundred seventy three which was when he made office can you stop a little bit i'm continuing jeopardy that the case fine held that a federal court could adjudicated double jeopardy claim before trial because the double double jeopardy clause protects against double prosecution and that right would be meaningless if the defendant had to wait until after trial to assert double jeopardy so why has that not apply and what's discontinuing jeopardy point you're making think here appellant has had the opportunity to have this double jeopardy claim where you were not looking at a situation where there was no review of his double jeopardy cl i will then why would that be sufficiently exhausted so that we could didn't determine it as a matter of constitutional law because i think it's important to note that decisions that came after fain have really shifted the analysis on that so famous  to support you your honor and indecorous inverses louisiana the petition made the exact same argument that opponent is making in this case it was a speedy trial violation brother than a double jeopardy violation but dickerson argued that the unconstitutional this court said that pretrial federal intervention in a state of juda kotori process should not be allowed absent special circumstances and so what we need to ask here is are there special circumstances under the facts of this case that would permit pretrial federal intervention and the answer is no when we look at some examples of special circumstances that have been cited we're looking at cases where the state has had the opportunity to litigate an issue but has declined to do so i now wouldn't that really be more appropriate for the district court to decide that issue earlier suggestion i mean in other words of priests a there's a constitutional issue involved in your double jeopardy and the state statutes don't say that these facts from why that should be the focus is under twenty two forty one they're hostile he's there has to make a distinction between and this is what the supreme court doesn't read and makes a distinction between petitioners who are using federal court to force a state proceeding  judge rosenthal i you know i'm not sure whether i did or not your honor i believe she would have covered that because she's very thorough and i don't believe she did did she she did not address in her opinion no but i think that the decisions of brown and dickerson are much more instructive on the issue i don't think they will they're not even dealing with double jeopardy like finance correct but it does allow for only special circumstances should permit opportunity to consider whether it's a special exception here when she did to them pure to have done so she doesn't your honor and it's important to no doubt that you know that the opponent has never raised that issue to her either your party has receded only on the merits of the double jeopardy claim and it's the state who's raising the issue still year to exhaust the remedies and in less than one of the special exceptions that have been laid out by this court or the supreme court of law it's the opposed position that federal intervention at this some it doesn't prevent the second trial from moving forward but what it does provide the opponent is an opportunity for the first time to develop the facts surrounding the double jeopardy claim on the record in the trial court simultaneously with the facts of the actual underlying prosecuting the individual not just from trial not just from conviction and sentence correct but i think insane it's important to note that the issue of exhaustion in the other cases robinson versus the way for example the issue of exhaustion wasn't briefs the issue of exhaustion was often weighed by the state so here you have before you a you know an opportunity where the state in the first time in one of these double jeopardy the remedy offered by the state that has not been exhausted is not a remitted that addresses discretion and ready i mean i'm just speaking one judge but to me the so question here is where the consent and if he consented to it he goes back to trial but if he didn't consent to it then he can't be tried again child in the answer is yes he did he had on up now and doesn't say it on the record you don't have who bears the burden on that don't you bear the burden to show he did consent not because she him to show he didn't consent because it would ordinarily be inappropriate so you're bearing the burden i believe that even if we are bearing the burden that we're looking at an issue of implied consent we're not talking about us to chew ation where you know after mr fries made his comments on the stand that the trial court judge immediately stood up and said i'm declaring a mistrial and nobody's seat going to have a record of what we do have what was developed during the  if this court decides that federal intervention is proper then really the remedy should be remain back to the district court to allow us to fully develop the record on the double jeopardy issue all you have before you is the state first court of appeals opinion and it adequate to support to your claim so he can build his record that of course for his claims and then let the district court make a decision based on some kind of record that indicates what what the dickens went  convicted and this would be after he is allowed to have the special plea on the double jeopardy issue presented at the trial court allowed to have the jury make a determination independent of what the trial court judge determination was on the issue of double jeopardy and then he can have that conviction specifically that actually going to the trial itself violates you double jeopardy and it's good law on the fifth circuit and so in judge rosenthal wasn't even presented with that and so she held it to your special pleading all that was good enough but that's because she didn't know that we had held that that if it didn't even go into the trial has further violation of the double jeopardy and so this is not it's a non analogous i think we have your point but i don't see how you overcome the binding fifth circuit precedent and i think the issue with thing is that the question of whether or not exhaustion required a trial in a state court wasn't fully briefed or developed and here we have the opportunity to really delve into whether or not the prevention of a legitimate state court proceeding is warranted under a twenty two forty one writ versus reviewing that conviction in federal court after in a twenty to fifty four brit will even if the record wasn't clear all the way in the plain case the court answered the question and then we're malmo by our prior precedent the court did answer the question and i think that  what we need to look out here is is there a special circumstance that requires that intervention on every double jeopardy claim and the special circumstances have been bad faith prosecution on the part of the state harassment or threats or a refusal of the state to take up that issue like we see in the west for a sustainable way and because none of that none of those special circumstances are seen here this is not bad faith prosecution on the part of the state this is not a situation where the state goaded the defense into asking for their record is a transcript somewhere is a transcript somewhere they reviewed it and they cited quotes from it and they stated that there was nothing on the record where the defense ever objected to the mistrial although there was some plead to the jury right he could but again that's one of the things that i think the courts have said that the reason that it's brought properly under twenty two forty one is because he shouldn't have to do that he shouldn't have to be if in fact it is found that the trial violates double jeopardy he shouldn't have to go to trial on the subject in jeopardy to prove that i mean i think if it's found that this is in violation of double jeopardy it should be granted and i don't think there is any argument that he is being put in jeopardy again and i think as judge always said i mean it appears that consent is an issue it appears that most courts have decided that you can center you don't and that's it but that's why it's submit we're also looking for guidance in this issue because if the underlying basis for the mistrial  isn't within sound discretion then i think plain error applies i think plain error gives the courts the discretion to remedy that situation and i think if everybody is in agreement with the state would agree but there should not have been a mistrial declared in this case i think and i think a i think a rehashing of the record and questioning the judges the prosecutors the defense attorneys i think it's all going to lead to what's already in the record which is that the witness testified voluntarily to incriminating facts the judge let him blanketed lee plead the fifth didn't make him take the stand and plead the fifth to specific questions like him blanket elite plead the fifth and not continue testifying