case to evaluate its merits and to argue his position and i took my task seriously as you suggested your honor i spent quite a bit of time on it and after doing so information that was presented to us and i wonder if you can comment on this it appears to me most likely that what both  defendant's role in the crime was in how to move that the victim to the car and from the car to the bluff and pelting to send him over the edge to where he eventually froze to death as the medical evidence showed if that's what the jury found was his role in the crime and seems most likely from the evidence why isn't that fully consistent with both v and he didn't do that and he wasn't and he wasn't retried for that so i don't see where the problem is the problem is and the and this is this is jumping right to my my first point i  very complicated and i have course i had to just select a few things but my first point is that you you can't separate the first verdict from what happened after the first verdict and the findings of the tr degree murder that he was guilty of second degree murder and kidnapping and he secured a reversal of that on appeal but what the situation is just simply that he gets retried for the things that he was and reaching the conclusion that this verdicts were consistent well i think it's more than i think it was more than chatting because the the there was a serious problem with this verdict that was raised by someone else with bernie and the and i'll jump right down to my last point which is the clarification that we're not saying they couldn't reach right and they could have retried him for those offenses that had been reversed on on the first appeal but they didn't they rely on the same have items it's my position that they cannot relate against something that's been resolved and so for now i think second my question i'm sorry and the government in trying the same crime again rely on that if you the first time around if they resolve an issue in your favor i'm guessing everything hinges on everything hinges on your theory that something other than first degree murder now and  that silverdale did not intend to did not have the necessary intent to come to harm go that's what led to the whole post conviction mess and because the cause of the causation issue as well death that is he didn't have the first degree murder i want this guy there and that he didn't kick him in the head or shoot him if that's all that this decided in his favor in the first trial he then everything that happened in the second trial is fair they they said that the cause of death was the the coal but but the for the purpose of the crime because that was the beating because it interfered with his ability to produce heat and get out of the cold so the way they framed it at the first trial and none of us were there to control it but the way they framed it was the beating was the cause of death the participation in the beating whether it's as an accomplice or as a primary assailant is is a necessary part of the criminal culpability and the cause of death and in that analysis i have a little problem with that the events occurred in the parking lot beating up whatever they throw in the van unfortunately that's not the way that they framed it they said that they the way that they seem to frame the issue of the first trial was the beating equates to the cause of death i think i agree as a practical matter it seems like first trial what about second trial well the second trial they they i mean i believe they use the same framework but isn't that important if we're going to have this double jeopardy discussion what they framed in the first row with the frames in way back to ask if you look at mclaurin and romeo and other night circuit case law and they say you don't need an explicit acquittal if it's obvious from what the jury did or didn't do that there was all this issue in his favor and your client was never acquitted of that act in trial now for one correct apprehension that's apprehension based kidnapping that wasn't litigated actual kidnapping it's taking him from one place to another right but an important distinction because they charged him with one variety of kidnapping and the and they that they were he was acquitted of that brand of kidnapping the apprehension based was not charged and was but the jury verdict was ambiguous and the only reason that a new trial wasn't granted to silverdale after the first verdict was based on this construct he was it was still when it was forced to rely on this construct of felony murder and the young charge kidnapping pow that's what you were convicted of i know you have these great arguments about intent to back felony murder and apprehension based kidnapping or or what you're on the hook for that's what was reversed by the court of a preserved i'm not saying all the charges were precluded they certainly weren't i'm saying that the the issues that require the specific intent that required the a sample charged offenses and the lesser included second degree murder those were the ones they were allowed to revisit and it makes sense here because the new a new a new turn is on both sides and a new judge and i can completely the attorney general the last that looks at the jury verdict says oh ok he was convicted of these crimes he was acquitted of these will this do it again they apparently didn't know or ignored the entire fight afterward where the judge said no no we're talking about felony murder and we're talking about apprehension based you know if they restricted themselves to those crimes and look at those crimes his convictions would be fine but they violate the fifth amendment because they go back to the same assault issues the same intent issues the same causation issues that had to have been resolved in his favor because of the assault acquittals and that's the basis for his current convictions ok second of all the defendant cannot show as he must that the jury did not compromise three stoppel doesn't apply ash talks about any future trial that doesn't talk about the same trial and abettor using the terms aider and abettor a short him so yes there are three or four different ways to reconcile the verdict in the first trial and the trial judge picks one of them as saying well this is one way you c factual finding that no dangers instrument was used my response would be that judge white did not address the definition of dangers and strength or the physical injury whether trial the jury could not have found it's over no acted with intent to cause serious physical injury or that he was going to convict was substantially certain to cause death because a jury acquitted the defendant of assault in the first and third degree both of which which required t presented and so we we can't be monday morning quarterbacks and say oh well wait a second something was floating out there and that may fit with what we know of the facts that wasn't presented by the parties and therefore it can't the basis for his current convictions and that's the problem with the apprehension based kidnapping that wasn't precluded that that was ok the problem with that is that they didn't litigate it they didn't charge him with this point number  this is one of those unusual situations where the presumption of correctness helps the over name because we have the state courts saying yes this is the this is how i'm going to resolve this problem for you so now and you're the convictions are going to stand insanity stipulation and the court goes into detail as to what the judge the frog judge thought and what he was his motives were and that the parties were relying on what the judge did i don't think it's any different here so when it was bound to what the trial court found and that's why he says that's why his conviction stood the final point i want to make is i just don't think the state's clock will stop argument makes sense if they're correct you have an issue that's resolved  in the defense favor in trial one the trials reversed for some other reason they think it's fair game they're allowed to go back and start everything anew regardless of what the first jury did just because something was reversed i don't think that's the are deeply grateful to all the lawyers are willing to take cases like this on a pro bono