all the final case of the day sixteen three zero four eight six langley versus print foreclose from consideration that's the question mandated by the court in ash there's a swenson and again in yoga it's important that in this era of collateral a stop of the united states supreme court did not simply states supreme court mandated exactly what form of inquiry is to be conducted under the double jeopardy clause to determine whether an issue was necessarily determined and therefore foreclosed by the double to come back with a conviction of second degree murder and that's the wrong question and finally it's is whether rational jury could have granted it's verdict upon an issue other than that which the defendant s is emphasizing the issue has to have necessarily men decided and at least in one application of ash they say actually decided and so if it's a fact intensive inquiry and then we  on to that at the deference why am i wrong to think that this gentleman was three times convicted everyone that every trier of fact that has looked at this has found him guilty of first degree second very second degree free times triers of fact find him guilty built on what you know the record seems three times he confessed to intentionally strangling it just looks like the facts are overwhelming that he did  question i asked mrs swenson but did as the supreme court yet clearly established ashes how ash is applied when we have at the deference or how ashes applied when a lesser included offense exist or a general verdict the what's the best case approach requires a court so it's required to examine the record of per proceeding take into account the pleadings evidence charge and other relevant matter and conclude with a rational jury could have upon an issue other than that which the defendant six to the floods the trial judge in this case was presented with your ash argument and you and you came into the case and then you presented and he heard it then we have the third circuit listening to it then we've got the magistrate review by the discord and none of them have accepted that the issue of special intent was foreclosed would you say they all may be a dental mistake thinking compromise verdict is somehow allowed or did they each make a of the strength of the evidence and specific intent and they made an error in analyzing the difference between a juror and jury rejecting the defendant's insanity defense we didn't prove that by proponents but the is there was it was a mistaken view that the kidnapping qualified under the second degree murder statute right i mean that was should the second degree murder instruction have been given at all if there been but it doesn't matter for the purposes of this panel and war because it's the instructions actually given in that jury trial whether they should have been my guess my question is under louisiana law if you know this answer if the state only could have relied on specific intent second degree murder could both first and second degree murder have been given his options to the jury even though they had just the same elements i guess except for that the youth the minor  they could if so if so it jury does not but then the instruction here say you can only find second degree murder after finding no first degree murder yes so in that situation if they both had to be specific intent why could the jury been instruct case hinges on that part of the instruction yes but if the if the correct instruction of being given up it's up to you if you think it's better to give second degree murder go for it that and then you would have the the factual finding i wouldn't agree with that because even in a system like louisiana or louisiana is hardly unique in accepting the fact of notification right even if you have that the the united states supreme court test more technically respective would of course amount to a rejection of the rule of collateral estoppel in criminal proceedings especially with as a general verdict the united states supreme court has not placed upon has never placed upon the defendant the burden of excluding the possibility of nullification or any rational verdict instead the united states supreme court has said in order to give full effect to the double jeopardy clause we will will jury and we will look at the issues presented and the issues to sudden is that altered factually here by the trial judges comment about having spoken to the jury absolutely not food one is that it's an objective test doesn't matter why those twelve people did what they did that's not the tickets the second is we don't impeach of those and let me just pause on that week if you have time to two cases i want you to talk quickly about why power wouldn't be existant here because if house saying once you know the jury acted irrationally ashed doesn't apply and you could say here we know they acted irrationally he because the judge spoke to them and they it's not what we do that but to turn to power and it is an important distinction the rule in ash this is swenson does have an exception the reason exception where the united states supreme court has said we may not going to give the the thing is the united states supreme court has defined what it means by inconsistent verdicts it doesn't mean the state saying i thought we had a really strong case on specific intent that doesn't make sense it's a conviction on one  i have a few more questions in that regard when you say we know specific intent was decided it is an unusual verdict form the capital murder wasn't found acquitted it was left blank that makes me wonder it would actually be a question of federal law and even craning to the supreme court's ruling they are they then re man same for prosecution and second degree murder citing the subsection for special intent was was there no issue  relinquishment of an ash issue to get away from a capital murder that issue wasn't presented to the court at all the issue before the court was purely a core double jeopardy claim we beat the first agreement and the fact shouldn't be looking for ways around the corners of it when he sees us really in that second try to jury charge conference specific intent was at best confusedly described relating to both first degree murder and second degree because at one point the just court says drug court says you don't even need to find specific intent for second degree murder and then everyone scrambling because that's wrong and then the defense attorneys are tell me jury no specific intent no capital to capital murder implying to the jury again you can get them on second degree murder wrong way without specific intent milieu and it wouldn't it wouldn't for a couple of reasons one is in this case they provided the written instructions with the explain the acquittal on first degree murder and the conviction on second degree murder the first degree murder there is something that i did not think about until up was preparing for this yesterday it always happens you think i should have argued this in the break one of the issues that is before us in that first inquiry is whether or not there was an other of another basis upon which the jury could have decided second degree murder and one of the things that i don't think that is discussed specifically was but it is discussed within the third circuit opinion is the fact that th defendant never conceded second degree kidnapping first degree murder in louisiana was based on two aggravating circumstance in this case child in the age of twelve which they conceded second degree kidnapping with specific intent both and they never conceded the second jury wasn't stretched destructed on felony murder doctrine no specific intent whether that was accurate or not is not before this court whether that was a proper instruction you're saying that second degree murder conviction was a felony murder can but it  is exactly how i was present and i think that's what the other side saying too so what what was lacking in first degree murder when they were checked to first degree murder or what isn't but isn't specific intent the only challenge element is  they go through the close nourishment and they say ok there's no second degree kidnapping and the state prison in the secondary kidnapping theory whether you know that was appropriate or not it was not challenged by the defense it's waived now  one however the state discussed a second jury kidnapping there's no question that second degree kidnapping was at issue because the defense never conceded it they said yes he that the child under twelve yes you killed him but there was still a valid first degree murder fast on first degree murder they can do the specific contempt was second to be crippling that's one way to get there but they can also do specific intent to kill upon a victim under the age of twelve everyone agrees the victim under the age of twelve constat wasn't an issue so have why didn't they convict on i think it's a five it isn't the only reason because they didn't find specific intent given that the age was met no i don't think you can say that at all and the other issue o because they did do a compromise mercy ruling or you're not argument yes or no i'm arguing that there's multiple being used that the jury could have reached to get to that is one legitimate venue around ash preclusion that the jury did a mercy verdict is that valid under a law like ours like the green decision i think that the bottom line is when you look at the rationality and realism review that had a killed court is supposed to conduct in which they look at all factors even if you don't use the word leniency in compromise even if that's not supposed to be looked at you're supposed to look at every factor every doctor in this case the bottom line was and i'm trying to get to what you think the strongest way we would know this jury didn't despite the big net is it because they disagree decided on mercy is it because in fact once they said not guilty by reason of insanity we know therefore they didn't find the likes of intent or is it because the jury has a completely mutually inconsistent verdict if they did yeah they may have decided but they decided inconsistently so under powered we don't discredit my list my thinking so you know where i'm going is you've just agreed with them that they did do a valid ruling under felony murder you aren't arguing a powwow exception i doubt you're going to be arguing that well because they had mercy were out of ash that seems inconsistent so it somehow has to be that this verdict doesn't rest on a special intent i think you're right i'm not arguing that we're precluded from considering that and i'm not arguing that we're out of it at the at all because the bottom line is three courts stated other ones three courts came to that conclusion when you look at that ok let's go through the courts that the state court said no for what reason and are you defending that really i am to think what's the reason they said it for three separate reasons one of which doesn't like first reason they said was specific intent to kill was not only gated they went through the fact that they rejected the insanity defense whether you play that into it or not then they said it was also possible they found no specific murder doctrine that was given to the jury as the instructions so it was cruel to a juvenile and the defense did you saying that they could find felony murder the issue is why did they acquit on the capital murder and the issue before i come back i mean they could have found second degree kidnapping as capital murder but under five the only elements as i see it correct me if i'm wrong this is them this is obviously crucial the case hinges largely on this it's killing of a human being with a specific intent to kill upon a victim under the age of twelve of those three if they didn't find him guilty of capital murder they had to have rejected specific intent or tell me why i'm wrong that your honor and what either of those support down which you've begun back and you look at the closing argument and the argument that was presented in the evidence presented by the defense they wonder how don't think the insanity counselor but you agree of those three elements only specific intent was challenged of killing age specific intent which was which was challenge of that particular one specific it it was jealous of the what but we're still not looking at the kidnapper we still have an arsenal of that matters because the jury didn't need to they could have found him guilty just under made as to state of mind was insanity i bet i've gone through this record that's just flatly wrong counsel that over and over again they said find him insane but keep in mind this proof also goes to intent different standard approved different burden of production the totally different they emphasize this is a case about madness that was the opening line in the closing the first trial but they constantly preserved that the government also had to prove beyond  they said over and over but that for a defense attorney to do one is the burden on the government the other one's an affirmative defense they're totally different and different levels of convincing force to prove them we're still overlooking the fact that we have a general verdict form here we it and you mentioned earlier that the question that judge gray posed to the jury and i looked at it again because it first i thought oh well he was kind of saying no they rejected the insanity defense he doesn't at that point you were on notice that mr burke preserved over and over again his ash objection to the straight specific content second degree murder he asked objection has been rejected by three different courts using the same precedence that this court talks about delhi versus closest to the analysis that would give you the outcome you or i don't know that there is that you asked earlier whether there was a case that you basically asked mr burke if there was a case quite like this there's not there's not percent agree with you but it appears the law doesn't allow that as an excuse from ash unless you can give me any case that says a compromised verdict removes you from the analysis ashton's i don't think what i'm complicated it might not recognize reality i mean here we actually know from the judge talking to the verdict the jury's not even guessing what they did it's we know that the case law does say you probably can't look at that but the real reason we're in this situation is because of the problem with the predicate on second degree murder being mistaken i don't but it's the combination of ash and that that is sort of created this this problem i still think you go back to this is this is what i i still think we're jumping ahead in that analysis when we have until verdict form to say that this issue was precluded by a jury that just said stand right by second remember that's not what about the instruction set first decide only go to second if you don't find  if you define the office charged then you go if you don't on this then you can you know you basically say beyond a reasonable doubt there's there's no question that a jury can look at those jury instructions jump around and decide ok we're going to go with this  this jury we're not looking at everything that actually happened here this jury knew that they were going to have to sit through this and you're saying the finding of second degree murder is not a rejection of first absolutely not especially when the second degree murder says that is that the petitioner has to prove that the issue was decided to stay with the first trial he in this just in shock he has the burden of proof we don't know the bottom line is you know that's why i was going through those three elements of first degree murder and it seems to me the only one of the three that was contested was specific intent but you're not looking at the second degree kidnapping your honor the second jury kidnapping was what was in south with in the second degree murder i agree that's an alternative way to find first degree but that but if they were they would have to consider both they would have to reject both they would have had to consider both you're looking you're this court i believe i understand the difficulty ok we have a general verdict form but we also have the incredibly deferential review that supposed to proof and for whatever reason the jury comes back with a less responsibility that happens it happens to all that anybody and that prevents you from recharging the more serious offense the jury didn't find we don't just go on and on any issues that are decided within it we don't have anything same by your theory or your theory why can't they even just recharge the first degree murder i mean forget about issue preclusion if that i mean it seems to me the implications of saying well the juries are just that disregarding the law  that's what we're stuck with and we want to understand certainly the fortuity of events here is very unfortunate certainly there is very strong compelling evidence that and of what is a terrible heinous crime you don't have to convince us of that but the issue is double felony murder you would have a power predicament you'd have inconsistent verdicts you wouldn't be dealing with ash but the more you say there was a basis for this felony murder the more we've got to try to figure out what's the consequence of the acquittal on the capital murder and therefore i would so so obviously they considered about the child being twelve secondary kidnapping they disputed it maybe they didn't design it on security that maybe they decided on cruelty to you know my goodness the defense certainly conceded that in closing argument i thought that was pretty telling right there there's no question that with what we've done to this child there was cruelty to egypt no i don't think that there's any question that definitely was on a felony murder conviction and then you dismiss what happened at the time we still have to i still don't see where this court is saying with a general target verdict form that we know what happened with the second degree murder verdict that was returned in the whole point of the case now is that if you can't predict if you don't know how they got there you look at what you have it if you can saying wisdom said we have to look at this realistically and realistically we just don't ask says that to ask talks about looking at the entirety of the record and there's something else that you know needs to be pointed out that i don't know that was discuss this was a second degree murder appeal that went up to third circuit by law with the second degree murder appeal required the court to look at the entirety of the record they looked at everything they had ladera they had the jury instruction there was some issues raised by petition that will be the third circuit court of appeal didn't look at everything they're supposed to not only do they have to look at it because that's the nature of the assigned there they raise but they also cite dallas versus united states in their opinion you draw any base not discuss the issue regarding intent ok i think that what they were saying that was the way i interpret that is what we all know the bottom line is this was a trial this was such a bizarre circumstances it was a trial that was declared and nobody under it would be infallible to anybody that a technical pleading about what what was technically before the jury as opposed to what was really before the jury that passage is a shield for the defense not a sword for the prosecution is there any ed but deference to a fact finding  elements killed which was conceded child under twelve which was conceded and specific intent to kill disputed dispute it doesn't matter that in addition to a child under twelve there was an aggravated it is a red herring because the jury necessarily applying the taste in ash and i believe as a matter of fact the jury necessarily did was not satisfied beyond reasonable doubt a specific intent was not satisfied that this mentally ill confused man actively desired the killing at that time and then brought a hard question to me careful ash was announced a while ago and that and the supreme court seems to have been winson they they specifically said it has to be based on a rational juror otherwise the double jeopardy protection of collateral of stop it goes out the window because you can't the entire sit