just tell you to cut to the chase where i see the issue and you're welcome to take it elsewhere but it seems to me in the green case from the supreme court we have a silent jury and one of the charges is don't say anything and it's left right then at the other end of the spectrum we have a situation where the jury says to the judge you know we can't seem to reach him verdict in the judge does or doesn't give an allen type charge and then nothing happens so the judge declares a mistrial this seems to be somewhere between those two because you have a blank worded form on the murder charge but you have a jury instruction which is separate from the verdict form that says well if you find guilty or not guilty you can put them in their mind but he can't agree just leave it  go to the next one so i think the real question i have is is that an implied acquittal closer to the green case or is it more like a hung jury which is a more typical situation verdicts because you don't want to necessarily get a mistrial if you could get a conviction on something i mean that's why they use these so even though this one didn't involve a lesser included offense sometimes the question i would have is even though we're not bound to have an exact case under and how far can we go in seeing if this circumstance which two eleven speaks volumes in this case the silence of the jury speaks volumes of what speaks volumes to me is the fact that the prosecutor did not ask for a mistrial that seems to me is bottom line if he thought this was  zero six which is the expression jury instruction and reading and pertinent parts express instructions to the jury which states the following if you find the defendant not guilty of the crime of attempted murder in the first degree or if after phone for careful consideration of the evidence you cannot agree on this crime you will consider the alternative crime assault in the first degree as charged in count one there's only two possibilities for the jury and the reason your honor i would submit that the prosecutor did not ask the court mistrial is that the jury instruction it makes explicitly clear to the jury and juries are presumed to follow instructions and there's lots of case law on that both from this court and the u s supreme court that if the jury did not make an express verdict of not guilty on the greater charge of attempted first degree murder the only other possibility it had before it was it could not agree so either they had a not guilty finding expressly we find the defendant not guilty of the crime don't have any of that you have this jury instruction which doesn't even say in the second word that you have to have a you know if you can't unanimously agree just as a can't agree leave it blank have a hung jury situation my answer would be yes so in this case what they could do is that you get these alternative charges you hope that they get convicted of murder the jury as the wish and supreme court has said on a number of view the state of washington can let's say the guy didn't appeal from that he was kind of thrilled not to be convicted of murder and he got convicted of this alternative assault charge the state of washington then go back and sank even though you didn't appeal we now will retry you on the charge that the jury didn't convict you on could they do that yes and they probably did so if your girl because that just was not a case of the plot acquittal the jury instructions that instruction says you cannot agree a reasonable inference is the lack of anonymity based on lack of agreement my second primary going to is that there is nothing legally in firm as to mr purcell's first or second degree assault if for nothing whatsoever those are the convictions that are in the record those are the convictions he challenges in this hideous petition as we've all he didn't get convicted the second time around on murder that's correct it has to do with whether he was in jeopardy of being convicted i would submit that based on the jury's that it the only reasonable conclusion washington but the russian supreme court has indicated you know there's a little unnerving but i don't think they've changed their view that this kind of instruction is proper but forms indicate on their face if the jury was unable to agree because the jurors were unable to agree we cannot consider them to have acquitted proven of the greatest charges that serve and they are we are we not like listening to each other i'm asking you about this case not a implied well that's what the court said yes that would very probably be correct under federal law so now that brings us to another question and one in which i think our cases are look to the ultimate result in other words i hate the us and we seem to have too much as a cases what's your position on a situation like this which is just assume that well i think they are wrong no you're on that saying that was for the long effect i said the of the ultimate decision by the court of appeals was correct judge judge mckeown was asking me regarding the harmless error standard was that incorrect as applied to federal law answer that it think as they indicated the the court didn't apparently put forth much effort in this double jeopardy analysis to it's only a paragraph long as i recall the washing court of appeals and it was it