defendant mr starr at that time was not being held under judgment of conviction that he was actually being held pretrial because the judgment of conviction had been reversed by the way supreme court so in that instance as twenty to fifty four one going on to the merits of your own is the jury in this case convicted mr stow of attempted murder in the first degree which is the attempted killing of mr nash and mr parkinson with a single intent as opposed to attempted murder in the second degree which is the killing of mr nash and mr parkinson the attempted with separate intents and where that conviction was reversed because that that very element of specialness between attempted murder one and attempted murder two  exist because the jury instructions essentially this distro was convicted by the jury of the functional equivalent of attempted murder two and so therefore there was no acquittal in substance of the attempted murder two because the jury did not resolve the elements in that case in th but there was or heard it seems that the supreme court of all why assume that there was a verdict rendered they recognize that there was a not guilty reason i'm asking you in a lot of places and i don't know why one of them and a lot of places the verdicts now nestl with the jury rights in the form it's going to be announced in open court in the jury's going to say that's our verdict but it seems to me that in this held however i think the pivotal question still remains and in fact that not guilty written on the verdict form was not published and the jury was polled and they informed the court that the supreme united states supreme court the question revolves around whether the factual elements were resolved correct or not whether they were actually resolved and in this particular case because of the interrelated nature of the attempted murder one in the attempted murder two you cannot really review the attempted murder two without looking at what happens in the conviction of the attempted murder one council when you say all of the cases we revolve around the issue of whether the factual even though they were just decided cases i believe in in green for example which was a jury case the the question was whether the jury the jury in that case actually convicted the alternative a murder in the second degree after they were given the opportunity for full review of murder in the first degree by using the green supports your argument i'm saying that it's still revolved on a matter of whether the jury assessed the element jury was given the opportunity to consider both murder in the first degree murder in the second degree and yet they opted for murder in the second degree so so i couldn't the same thing he said of the jury in this case they were given inconsistent but juries can be inconsistent it doesn't matter they're inconsistent we don't we're not going to start picking apart heard a mixed to decide whether they're inconsistent jersey the right to be in with them that's correct and in this particular case they were the jury was actually not inconsistent because of the nature of the jury instructions that they were given essentially what they should have been told was if you find guilty on attempted murder one you must stop and go no further however because that instruction was not given to them then they were aware that they could not convict of both attempted murder in the first degree added something learned in the second to be they did what they thought made the most sense which was convicted on the attempted murder one and only as lee had written not guilty however they are not guilty riding on the attempted murder two was not a resolution of the elements because they  in fact they intended to acquit on the attempted murder two they would have been required to go on to the assault charges which they did not do none of those charges were considered at all in fact what they did do was on the atte why the jury did what it did and a lot of the cases that you signed it involved proceeding for the jury was still available in the county and the court was able to question them regarding their reasoning you don't really need to inquire into what the what the jury perhaps was thinking or doing because it is on the manifest in the actual charge itself and in the jury instructions and in the fact that they did not go wanted the assault charges so therefore they were not at that point considering attempted murder in the second degree your honour's in this case cuz it is manifest in simply looking at the they should have stopped but as the white supreme court pointed out that inexplicably and perhaps to try to make sense of the jury instructions they had they wrote a not guilty just to indicate that they understood that there start with this i understand that but however in this particular case particularly because of the unique facts in hawaii law in attempted murder one in attempted murder two and the alternative nature and the fact that the attempted murder two is  because that specialness that having that single state of mind was removed because the jury instructions were erroneous as a result what the jury what what you're left with what the verdict does indicate is that there is only an attempted murder two that the jury convicted on the intentional or knowing killing the attempted intentional knowing or knowing killing of mr nash and this or parkinson you know you know write i take it judges can never interfere with jury verdicts unless it's a case of first degree and second degree murder where the jury has found him guilty of first degree and not guilty of second degree but the judge perceived that the jury didn't know what it was doing when they did the second step is that how we're going to run it how would you write that u because the finding on count one was tantamount to a fine uncrowded is that how the that's how we're going to write this with the additional fact that there is also other evidence that the jury did not i did not go further and look twenty to thirty four means only the judgment of conviction then it would appear that this case will be properly analyzed under section twenty two forty one and it's analyzing section twenty two forty one still was much higher under section twenty fifty four and the district court found that that burden had been met in this case the burden under section twenty two forty one is to show that the person is being held in violation as applicable decision was contrary to clearly established federal law or an unreasonable application of clearly established federal law in both cases for the law of meeting as determined by the united states supreme court would not be applicable here we have undertak states versus martin limits apply and discussed it and in my opinion derive the wrong lesson from it but there's no reason to even discuss that case if if their analysis was that it wasn't a verdict it was a verdict and that there be no basis really to conclude otherwise because if you have a verdict form submitted to a jury and if it comes back from the jury with the words written in not guilty which is what happened here two times on each count of second degree murder and signed by the four person of the jury and dated well what else could it really be other than a verdict and i don't think the white court although one can criticize and we have their decision on various grounds went so far as to claim this wasn't  verdict at all they analyzed as to whether it was a verdict both in form which they acknowledged it was and then they went on to ask whether it was a verdict in substance and there is where where they went wrong because what the court did in martin lynn supply which was a judge's decision was they analyzed the district court's decision and to see when the court but quitted the defendant did the court actually resolve the factual elements in some fashion correct or not and it's those words correct or not that are key to the analysis of this case and what had happened in barton and supply with there was a trial which resulted in a hung jury the jury was just charge and then the district court granted an acquittal and in the process of granting the acquittal the district court made remarks like this was the weakest contempt case he had ever seen and the jury should have acquitted the defendant but didn't for i don't know if he expressed any reason why they didn't and so the supreme court in looking at that said well it's obvious from the district court's remarks that this is a resolution  or one at least of the elements of defense in favor of the defendant and against the government and therefore it's not only just a verdict form saying it's an acquittal but it's a virgin substance and the key is that the rule is that it doesn't matter if the verdict is correct or not what the hawaii court did here was look at this and then basically said well we disagree with this verdict and that is a principle which of adopted would be i think unique and would be contrary to all of the supreme court precedents and really doesn't to address i think another point that judge fernandez alluded to court agrees with the acquittal then there really is no content to the double jeopardy protection at all if double jeopardy protects only when the courts agree with the irrational as it was in the green case where the jury was asked to consider felony murder where the predicate felony was arson and then was instructed also on second degree murder the journey jury came back with a conviction arson and acquittal on felony murder and a conviction on second degree murder and the court said the acquittal on felony murder will stand up even though it makes no sense so it seems to me that  this is a rather definite indication that jury verdicts are not to be scrutinized for whether they're right or wrong and it's consistent with all of the other law about what we do with jury verdicts when we look at  impeach the verdict you know the jury gave me an affidavit saying and they did something that they should have done or they considered this matter while they were thinking we didn't understand this instruction if we had understood it in the same way that the defense investigator told us  really meant that we certainly want to come out with the opposite result there's a strong policy against examinee jury verdicts and then it's a correct policy and it's a policy that's consistent with the constitution now what we have here is a situation that's unusual because of the counterintuitive idiosyncratic nature of hawaii law in connection with first and second degree murder but if you look at why the law it's the state of mind required to convict on person agree murder is entirely inconsistent irreconcilable with a mutually exclusive of the state of mind required to convict of second degree murder and what happened here is the jury was told that they should that deliberate that their verdict on one count was not necessarily indicative of what their verdict should be on another count and when they had finished liberated they should let the court know it's actually the case that their verdict isn't irrational because with mutually exclusive states of mind it is the case that if you're convicted of first degree murder you should be acquit of second degree murder now the reason why i think why supreme court has the opposite policy that you're told not to deliberate is probably to deal with a situation like this where you have two offenses which are mused mutually exclusive and you have an erroneous conviction on first degree murder which is  you'd end up with a situation like we have here but the fact of the matter is that this verdict by this jury represents a resolution of the factual elements  well i think that the the question we don't know why the jury didn't go on to the assault counts all we know is that they didn't and while it might have been the case that  yes all of these matters have been brought to the attention of the trial court and the trial court which had the verdicts in front of it had done something about it before the jury was just charged it might have been possible three instruct the jury or asked them i even after discharge you could conceivably call them back and see what they think well that was now in that particular case they said it was it was minutes after their discharge and they hadn't associate with other people you know that's great that's one of those this is a one way ticket arguments but you know we're at the pay attention now that the point is they were discharged and then came back and said no we meant to find him guilty not guilty and the court said that's fine and i think that was a very close call and probably that circuit was hoping that it wouldn't happen very frequently he was hoping for a one way ticket but i don't think one way tickets work very well except them any difference i don't think so i think that if there's going to be any notion of anality and protection of double jeopardy you have to say that once the jury is discharged and has dispersed as a group up the whole notion of impeachment of jury verdicts and i don't think that it would be a sound overarching principle that could only be done when you had an acquittal so if we're going to go down that road of examining days or months or weeks or years later what happened or what went wrong there's a lot more guilty verdicts and acquittals and will be a lot more business of reviewing verdicts of course reviewing  is where the white court went wrong in thinking that you could basically review the verdict or whether you thought it was right or wrong in terms of its correctness as opposed to whether it represented a resolution correct or not of some aspect of the facts in favor of the defendant and i think that this verdict on its face appears to be an acquittal and there's no reason to think that it isn't and even if it's incorrect all the supreme court cases that have dealt with this kind of circumstance have said well it doesn't matter that it is the principle of total jeopardy and what if you don't uphold that then they're really in my opinion wouldn't be much content to  protection thank you just very quickly with respect to the fact that this case is before this court it is before this court because there was a conviction and the mr stone did appeal that conviction of murder in the first degree so it's not a resolved the jury did not consider murder in the second degree as a substantive offense but merely reflected its understanding that having convicted of attempted murder in the first degree it was precluded from convicting  attempted murder in the second degree they did not go on to the assault they recognize that that was not a substantive verdict of the errors and they did not inquire into the factual elements with respect to the fact that whether or not it was also consistent and that it was appropriate for the court to correct the verdict because in the balance of double jeopardy there's also an interest in punishing the one who's guilty is clear and this is what we have here so your hon s in this case a very dangerous person someone who was convicted by the jury of attempting to murder two people has been released with no conditions with no b not the type of case that the double jeopardy principle is to protect he was convicted of attempting to chop up both mr nash and mr parkinson with a machete over alcohol in your hon here there's a profound state interest in punishing one who's guilty is clear and was determined by the jury