number one seven six one five seven antonio l southbury versus randy levy arguments not to exceed fifteen minutes per side mr koppel for the appe discharged without rendering a verdict and supreme court precedent is clear in that last scenario it does not matter whether the jury ever considered the charges that's because the interest is what happened so this i know this isn't what happened here but just out of curiosity what about a judge that was nervous about jurors following instructions nervous about confusing jurors with too many instructions so in this case unless you do a certain thing i'm i i'm i'm going to show you these other instructions i like i'm holding them back and once you've made your decision on count x will decide whether to give you these instructions on count wires so in other words they don't even have a minute even know they exist doesn't know what they're about it might relate to felony murder but maybe not what would we do with that kind of situation so everything else about my head goes exactly this case except the judge just holds it all back you didn't tell him there is such a thing as felony murder and certainly doesn't struck them on it and it's the instructions are conditioned on whether they do one thing or another how would that work if the jury is dismissed without ever seeing those charges for rendering a verdict on the charges jeopardy still terminates because if the indictment so the double jeopardy clause would it was also the case in for instance the united states versus jorn down versus united states supreme court cases where the trial was terminated before the charges ever went to the jury the judge declared a mistrial before the the government had finished presenting its evidence the supreme court held that because there was no manifest necessity to do that jeopardy still terminated jeopardy attached as soon as the jury sworn on all charges your view of the idea of explicit versus mistrial rule has exceptions so that suggests that makes it hard to believe we wouldn't have exceptions when it comes to something quite acquittals but not others so do you answer your question from earlier judge sud that's actually my point what you mean it's not necessary you're saying it's always true that's what i'm finding so public puzzling about this you're saying in all cases where there's a charge who cares about whether imply a they acquitted don't even ordeal of trial a second trial would put the defendant to that expense in ordeal and embarrassment again it would it enhances the prosecution's opportunity to convict because it you know the prosecution knows the weakness of its own case the strength of the defendant's these are the interest of the double jeopardy clause protects and there are political whether or not the jury has rendered a verdict whether or not the jury has ever considered the charges present  h you're saying that these types of instructions just are not permitted i mean you can do them but the prosecution basically four fifth's except being a verdict on one count is equivalent to forfeiting all of the other counts that's correct the instructions are permissible there's nothing inherently erroneous about them but if what happened in this situation occurs the  prosecution cannot reprosecute on the charge that the jury did not reach the prosecution takes that risk with a sequential instruction of this type but sequential instructions don't need to be of this type the judge could have as the objection he did not but the defendant did not have hyper as a matter of strategy i can see that i can imagine that strategy see the benefits of it's not obvious you would want them looking at everything no matter what that's correct it was not the defendant's responsibility to ask the jury the trial court to put additional charges in front of the jury or to instruct the jury to render additional verdicts in this prosecution against against the defendant but certainly the how much this just just tell you just where i am on the case to be totally straightforward your broadest argument has support in the u s supreme court cases if there is a mistrial so that's your broadest argument about focus on the charge but those in all of those cases it was quite fair to infer the jury made a decision about that count here it's not fair because the jury was instructed not to so that's the that's where i see it as difficult i see it difficult even without it but doubly difficult with it so green relies on those mistrial cases green is applying that rule in the it in the context where the jury has rendered a verdict on one but not all charges so green as that one ninety one si versus hunter which is one of those in this trial they were instructed to look at all the counts i'm sorry green was a case where they were instructed to look at all the counts that's correct but the court said the result of this case i mean go down the road i'm just telling you what my objection was and your i told you that the second case is the implied acquittal cases were cases where they were allowed to look at the other counts and so if you're going to keep talking i'm just trying to make sure you understand what my concern is i understand but the interest protected by the double jeopardy clause are implicated as i said when ever you know as soon as the defendant is put on trial whether or not the jury ever considers those charges he's been put to the embarrassment expense and ordeal of trial you know those concerns that that green mentions in the spring course repeatedly mention are the interest protected by the double jeopardy cause the prosecution gains an advantage from being able to put its case on twice learning from the mistakes that it made the first time and that weaknesses of the defense's case and all of those interests are implicated whether or not the jury ever considers the charges and green was very explicit it's the supreme court did not rest alone on this idea of implicit acquittal it was enough that green had been put to trial for first degree murder and the jury didn't render a verdict on that charge and green sites waitresses hunter which is one of those mistrial cases conviction the simple fact that the defendant was put to trial and the jury was dismissed without rendering a verdict to meet that means that the defendant cannot put to be put in jeopardy a second time and  do you want to say anything about twenty to forty one yes so as i mentioned the standard of review here is to avoid the time that mr sauls we filed the petition he was a pretrial detainee with claim on the merits and it's the case whether or not judgment is entered in the meantime while the hate vs petition is pending but your best case court of appeals case where it's this fact pattern where it starts out as twenty to forty one but by the time are relied on out of circuit cases and those circuits no longer adopt that rule i'm not certain that that's true that one of those other circuits i think no circuit in a published decision has confronted the issue and discussed it and reached a what about green green doesn't stand for that proposition either your honor there's two seminal cases on this issue the one that you just mentioned green versus united states and price versus georgia and they both deal with implied acquittal which as the court pointed out is the petitioner second argument but they both have two factors that are required before an implied acquittal doctrine can be applied the first is the jury is given a full and fair opportunity to decide the verdict clearly that didn't happen in this case sequence  instructions instruct the jury that they are to consider in this case the premeditated murder charge first and then only upon acquittal of that charge that he considered the family says that normally that would be the right way to instruct on these counts is that true  first instructions are constitutionally on or there is a number of policy considerations that are taken into account the tennessee supreme court this earth i thought the point i was making was slightly different that whether they're constitutional or not that would not be the norm that would be what the tennessee state courts would have done with this particular thing normally if they did it the right way that's the point that the petitioner is making your honor but that's not the correct point ok so on federal habeas review whether it's the novo which we can get into if the core wishes or deference is applied you still need a constitutional basis to find relief so what the tennessee supreme court has said is that sequence of instructions are not preferred but they are allowed they are legal they are proper their constitutional there are many policy considerations that support that decision the urge to trial courts to not use them unless absolutely necessary but they nothing about them that was either on lawful or constitutional either now or at the time they were and the reason they urged the courts not to do it is because of potential doubt the jeopardy problems that's right your honor yes but your reversal but they are not unlawful they are not disallowed and they are certainly not constitutional in fact the u s supreme court as recently as two thousand and eleven has affirmed the constitutionality of acquittal first instructions structing the jury that they can move around so it is in discussing these different possibilities when you have less or not to say lesser included but different possibilities for the same basic offense and the court says no you don't you don't have to that's not unconstitutional you can require that they look quit or fine or have a reasonable doubt about the highest before letting the deliberate on the second but that's not the same as saying that there are no double jeopardy consequences of doing so and that's what the tennessee court was saying that there's a problem if you do this because if something is later reverse than you've sort of glowing to the finish the supreme court was saying was that there could be an issue but these types of instructions and the juries presume to follow their instructions does not constitute a presumption of error and there is no reason i don't think anyone's arguing i think the issue is what is the consequence of that instruction well again your honor on  federal habeas review the issue is whether or not the constitution was insulted by these this fact i think that when they say that the constitution was not violated by that practice they're talking about a different issue there's no double jeopardy issue intil there's a second trial well so i think we can look to your honor's point i think we can look to the decision in this case where the state court found that there was no double jeopardy violation and but if it was allowed to be retried in that specific case the court sided to force take cases which were analogous to this fact pattern and decided that double jeopardy was not implicated in the petition and that those defendants in this petition are can be retried so even if the tennessee supreme court has urged trial courts to not utilize this practice in a number of cases they have found that it's appropriate and it does not insult double jeopardy principles so i mean i started this down this road i mean one critical double jeopardy purposes and in terms of state law that's a state law question your honor but on federal habeas review we have to ask yourself whether there's any federal precedent whether it's done over or under deferential twenty two fifty four is there any federal precedent which results  vote what about our decision saylor well you would still need to find constitutional basis to support that the decision in sailor was different in several were guards again you had the jury was given the opportunity to return a verdict on all the charges although they were not instructed on the accomplished charge on the on the accomplice alternative theory of the unitary charge so in that situation you have a unitary charge this situation is  if two separate charges in sailor the other key difference is that this court focused on the next say she's nature of the prosecution the trial court failed to instruct on the alternate theory the prosecution made no effort to correct that instruction so that the jury could be informed and return the verdict on that this court is focused on the nature of that of that this issue and in this situation you don't have that you don't have any type of vexatious prosecution in the petition or a sort of focuses on the detriment that the defendant suffers by having to be retried and what about terry terry was a similar situation your honor obeyed a little bit differently in terry the jury did not return  verdict form with a decision rendered on it so they were properly instructed in that case and they had a full opportunity the judge offered which known as disjunctive instructions not sequential but they were allowed to return a verdict on any and all the charges that were presented before them do you agree that there there are several interests or aspects of the interest involved one is being tried again when there's been an acquittal but the other has to do with being put in jeopardy more than once with the same charge do you agree that those are separate interests yes your honor there's a multitude of interests here and and to be honest nobody prefer was was he in jeopardy shot i'm not sure your honor at the way you look at it as you have there although there is always going to be a a point where either jeopardy continues or jeopardy terminate so the question i have to ask yourself is when you reach that point if you're going to have a retrial what happened at that point to either terminate or continue jeopardy and in the doctrines that are proffered by the petitioner there in a political to the facts in this case so the closest option that we have any situation where the jury was offered instructions acquittal first instructions jeopardy continues unless the jury acquitted first and then jeopardy would attach to the verdict rendered on whatever charge or alternate which would allow which which invokes the fifth amendment under these facts so the supreme court has stated that the constitution ality of this fact pattern is appropriate and jeopardy continues and the petition retried i'd just point out that this court in terri found almost essentially that this set of facts would be constitutionally proprium this court stated in terry that we recognize that if the charge of murder is under two legal theories such as direct an accomplice liability or two factual theories such a shooting at stabbing the reversal of a conviction based on only one of the theories may not bar retrial on the other theory citing united states is worse versus garcia so this this type of situation was was but that's not the situation well you have two separate charges and so what the court is saying even if you had just alternate theories and you had a situation where was brought into those alternate theories there's still an opportunity for retrial so it's not as simple as asking ourselves where the charges first brought on the first occasion but what they were analyzing is whether the question of whether the whether jeopardy is continuing  on the on the offense and whether it's the same offense basically well they were they were asking they were looking at it whether it was the same charge your honor so that's what those cases focus on if the jury passes through the greater charge to a lesser charge there's an understanding or implied understanding that the greater charge was acquitted was acquitted on and so but that's not the situation here and so there's a multitude of situations i think that the court understands only to go through them where retrial is is necessary and it's not anyone's advantage i mean no one is trying to go through as the petitioner points out the expense of a retrial that the possibility of an acquit resources that are necessary to conduct that and as this court sort of pointed to in sailor when you have a situation where sort of re prosecution then certainly i think the double jeopardy issue needs to be examined for a loosely but when you don't have the i don't know i don't know that it has to be vexatious i'm not sure that one would care or sailors vexatious but i mean we really don't know what what happened there but is the question whether it's vexatious or whether you whether whether there was anything standing in the way of obtaining a verdict on the different charges because if you say is long as it's not say she is you can set up any system you want then you can conceive that someone could be tried on this you know a little cluster of charges again and again you know certainly point it's certainly about whether or not it's appropriate to have a retrial but i'm simply pointing out that some of the the underlying rationale and analysis considers the issue of why why why can't you have a verdict on each alternative because the instructions require that you don't unless why can't you wire dollars you have to instruct that way you don't have to you're on it's at the discretion of the trial court and they chose to do it why does the trial court why is it ok if it if it's purely a matter of discretion or just the way the judge likes to do things and it's not i understand that judge may think this is the logical way to do it is no sense and once you have a verdict of guilty on one of the charges and there's no reason to go on but if if there is no reason that you need to do that then why is the defendant's jeopardy subject to such whims so that someone might in fact a series of events could happen and someone is is is tried four times because you get one verdict in the judge isn't so great at trial and it keeps getting reversed in the mean why not just get the verdict on all of them there are important policy considerations that are important to consider when deciding whether to allow these types of instructions some of those policy considerations are it's the trial court's job to fashion deliberations in such a way that they're structured so that the jury can understand what's before them and and consider the charges in a way that's deliberate and and the supreme court has pointed this out of void compromise verdicts so to your point the trial court does i think you've answered it and i think your lights are like you thank thank you the state does not in its brief does not try to distinguish taylor or terry and sailor and in fact there is no distinction and opposing counsel's attempt to distinguish those cases here false fly in sailor of the jury was never instructed on the theory of accomplice to murder and so the jury did not consider that charge he could not have convicted on that charge nevertheless this court held the jeopardy on that theory terminated when the jury was discharged want i do want to go back to those mistrial cases that you're in your honor that we were discussing earlier there is nothing to distinguish this case from those mistrial cases those mr was in a mistrial here that there's nothing about the t label for when the jury is discharged before it can render a verdict it can mean that the jury is hung it can mean that the charges are never sent to the jury because a bit of a put it this way or i mean if we're going to rely on the mistrial approach to it why isn't it fair to let the state have the option of saying well one of the exceptions to the mistrial double jeopardy rule applies here of course no one raised that argument because there was no mistrial but if it were if we were treating it like a mistrial we would have to consider those exceptions to the double jeopardy mistrial rule yes i mean it's not obvious i think that's correct the only exception being manifest necessity and it is undisputed there was no manifest necessity in this case well yeah i mean that's easy for you to say you 're raising on rebuttal and they've never had a chance to argue that because no one ever thought they should not having a mistrial we have a section in our opening brief but i believe that the heading is something along the lines of there was no manifest necessity the state court addressed the manifest a sensitive issue and said there was no manifest necessity for this type of acquittal first instruction and there was no manifest assess the for discharging the jury without rendering a verdict on the felony murder counts i believe that this this is it was squarely presented because this is the line of cases that we are relying on back to go all the way back to united states versus perez joining down on arizona be washington wade versus hunter all of these cases which which we sign our brief those are all the mistrial cases they all stand for the proposition that jeopardy terminates when the jury is discharged without a verdict absent manifest necessity and there was no manifest need that you were in wouldn't be protected if you were under ed wouldn't be quite clear that  sequential jury instructions are unconstitutional and the instruction itself is not unconstitutional now but in this setting it would always be unconstitutional to use the option preserved by a sequential jury instruction that's correct and i think that it would encour to have his charges decided by a particular tribunal to put be put to trial one sect effect is where i started no no sequential jury instructions i mean why would you do it if it had this consequence and it just seems very strange to backdoor it through double jeopardy as opposed to the straightforward way of saying sequential jury instructions are unconstitutional i don't think though that this type of acquittal first instruction is all that common i do think that the more common approach is is the one that i mentioned i do really quickly want to go back to this cases the long time hades cases take and the other rule would see twenty to forty one petitions converted to twenty to fifty four petitions on a regular basis and especially the double jeopardy context which is where that is the norm the norm is twenty fifty four that's correct but in a just a couple circumstances here partner double jeopardy is one of them the defendant does have or the petitioner does have the right to file the petition before retrial and he and he should not be punished i call the next case