law as to county liability and qualified immunity and the rule fifty nine motion for new trial based on the jury instruction on reckless investigation and attorney misconduct your view is which means that sheriff to wit did not knowingly agree or come to a mutual understanding to recklessly investigate the case or to manufacture false evidence would negligence be enough negligence is not enough your honor nor is respond superior or it's insufficient that he's this juror and he understood investigation was taking place even a bad investigation can he have enough person to live military personal involvement to make the county  found in his favor on those issues the county's entitled to a fair bill inference on that basis what about what about testimony like dean's attorney smelling who says i get a call from the sheriff they'd say james dean had a bad night get over there and get it settled them that's the sheriff directly involved in the as you know he flies around the country and he says i don't have to use quotations is that enough even if there is a verdict for him i had quite understand are reckless investigation in manufacturing which have different elements and i understand the conspiracy but please address all the personal involvement of the chef well it's not it's not personal involvement your honor it has to be decisions that he's making in his role as the final policy maker for the canteen if usenet is involved and there's no constitutional violation associated with what thirty did or dr price did it  acquiesce to it or be involved in that council surely surely be involved it's enough it's right well if you're on the scene doing it you can't then say oh i'm just the boss he has to understand that what's occurring  constitutional violation it's not enough that he's involved or he's around the scene that is insufficient ok what's the best case that says personal involvement with the decision maker is not enough i think we're saying it the right way united communicating entitled to every infer it's that's right what do you what do you mean by that i mean are we looking at jury verdicts here and you're looking at during verdicts i mean the plaintiffs are asserting to you that they're entitled to every hear what inference in their favor  inferences are you talking about and i know why well the inference is i'm talking about there was a finding in favor of sheriff to wit meaning that he was not personally involved in any claim for up with investigation he was not involved in the and that's why we have to do every inference favorable to that to absolutely do but i think you also have to understand and interpret what that because there's a finding against conspiracy as well for everybody there is no conspiracy here others to conduct their investigation in a certain way or putting a stamp of approval on it so those two things don't completely overlap do they they do not completely overlap that's that's correct but it also means testimony and you know the stuff i've done at the moment one of the throwing the papers i got a whole bunch of stuff here but if you take if you take all that stuff is that enough it is not enough i think you have to look at what happened the muddying the waters claimed as does not mean that he witness and a witness with pain that stevens is trying to tell him a change of testimony or story about what happened that's where the muddying the waters comment comes about this is not one but of course stevens says that after that he was taken off the case and he investigation and the manufacturing false evidence claim and determining whether any particular piece of evidence used by thirsty or doctor price rises to the level of a constitutional violation of are three principles that guide that should guide the analysis first is there a problem with some piece of evidence gathered as part of the investigation was stuck problem apparent on the face of the evidence that could be assessed by the procedure by defense counsel and ultimately by the jury secondly did searcy or dr pryce do anything to hide or obscure whatever the problem with the evidence there was and thereby interfere with the due process rights of the plaintiff's third if the answer is no what duty did searcy or price dr price half with respect to that piece of evidence was there some constitutional prohibition against gathering the evidence there is no duty to be free of an investigation and no plan that the techniques used independently violate the constitutional right to roast a level of that it was not there was nothing to in this case your honor everything was shared with defense counsel with the prosecutor they had everything available breakfast investigations case has been defined at the high level of generality how would you define it you know i think in fairness to our clients it should have been defined in a way that they would have been alerted to what the constitutional violat right to be free from reckless investigation so are you arguing that the most previous case that was decided in this these proceedings is inaccurate that we need to revisit that is that what you're asking us to do been looked at again from the patient all the way through the d n a evidence and you need to narrow it down as far as time and apply it to sourcing your price because that's all that's left so you cannot you can no longer look at this as one big picture you've got a narrow down to what these two did what did they know and what violated their constitutional rights in fact i would point out your greed could be a series of act over a long period of time w be i'm sorry i swallowed it you agree it can be a series of acts over a period of time it could be but it has to be in their control as investigators and the law enforcement role they can't be the prosecution that's not their decision to make it can't liability based on the gathering of unreliable evidence there is no clearly established law today much less before nine hundred eighty nine that's that won force one can only gather reliable evidence the lawrence county case in missouri was the dream stuff and you know everything else involved in the case well there's not a gathering it's creating manufacturing evidence well that's the separate claim isn't it that's manufacturing fault i'm sorry you have reckless investigation yeah right  and i would encourage you to look at manual versus city of joliet as well this is the case that came down after our bruce rescinded in march that were the court held that the period of time you looked up the fourth minute violation extends beyond the first legal proceeding all the way to that doesn't mean that any evidence that might have been relevant to that claim wouldn't possibly be relevant to another claim as well it doesn't preclude all evidence just because it was relevant to the fourth amendment claim  that's not my point my point is if it's the fourth amendment that applies that's where it belongs not chalupa could not be here today due to a medical condition a condition in our family this is an attack on star to size it's an attack on the prior panel rulings its star decisis is the foundation for the rule of law i'm going to read a quote from a recent case from a two thousand and fifteen case kimball vs mario marvel enterprises to stand by things decided which is the definition of start assizes the things decided to stand by things decided promot even handed predictable and consistent development a legal principles fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process  the facts and the jury verdicts this is a confusing set of verdicts where there is no conspiracy and to which not liable for anything personally not reckless investigation not manufacturing evidence but  same jury says the county is liable to tell us how we reconcile that to uphold any verdict against accounting it's exactly what judge cop said in his order and the whip functions in this case the record reflects the function both as an investigator and as the county sheriff who is the chief policymaker decision maker for the county liability was assessed based upon his decisions as the director of the investigation liability was not focused because of his acts as the investigator and i would like to point out too that the jury's finding doesn't mean that the wit didn't investigate if you look at the jury instruction what i think that did for the first of all our jurors were extremely careful in how they conduct this analysis there were sixty decisions that they had to make factual decisions they only found for us on twenty three they were very careful on how they view this this evidence and if you think about it i think what they did was that they looked at what was a direct cause and what was an indirect cause and i think it's more reasonable to think that direct i mean there's no question by looking at the record that direct that was involved in investigating in some capacity as he was in directing the conduct of his officers and i think it's more reasonable to say that what the jury decided was that it's conduct as the investigator was secondary or and in direct cause and the of that investigative conduct what your base case that ratification counts what's the best case not the other things you said well it's the jury instruction itself it's accepting the exception after the fact the conduct of the investigator and they have no one's appealed from the jury instruction and i think i have that here judge judge shepherd's point the jury it's not the individuals that deserve deference for the jury's verdict it's the jury's verdict itself the jury's verdict itself is what has to be conceptual crime scene statement he read those reports so every time someone after mail leventhal every time someone said joe only joe white and only tom winslow great mrs wilson he knew that was false and what he did he did nothing he ignored price to go and interview that sheldon and the testimony that came out was that what dr price did was asked to sheldon over and over and over who else was there told her to go back to her jail cell price to go see james dean and he counsels james dean and this is even in prices report said the james dean walked into this meeting after having this polygraph and it was adamant that he wasn't involved in the murder but after dr price explain things to him james dean came to doubt his veracity and started believing that he may have been there then james starts having these dreams again dreams that dr price instructed him you will have you just go back you may have if you just go back to your so on relax and we know this all happened because he did a recorded interview with kathy gonzales told her that same thing and then he admitted in court that that is exactly the same thing that he argued in the brief the prior panel rule it's interesting that the that the that the winslow and white majority is here today but the prior panel talks about how a subsequent panel does not have the authority to reckless investigation can be a deprivation of the right to fair criminal proceedings one thing that the defendants try to do today is redefine or take away the definition of what this court has said is a reckless investigation and what this court has relied on over the years is that and this is i'm going to quote from white we have previously recognized that the following circumstances indicate conscious shocking behavior in the context of a reckless or intentional failure to investigate a claim one evidence that a state actor attempted to go hearse or threaten the defendant to evidence that the investigators purposely purposefully ignored evidence suggesting the defendant's innocence and three evidence of systematic pressure to implicate the defendant in the face of contrary evidence in the instant case there is evidence that the defendants successfully coerced and threatened white co defendants in the implicating themselves and white in wilson's murder repeatedly ignored in consisten implausibilities in the testimony implicating white and exercised systematic pressure to produce to procure white's conviction despite the unreliable unreliability of the evidence that was involved that was from white so  giving all due inferences to the jury's verdict what you just read doesn't that describe the sheriff's actions and how do you separate those from between investigative and directing an investigation i agree that it does also state exactly what share of the wit did it isn't that really a distinction without a difference i don't understand that question i think well i'm trying i'm talking about the arguably inconsistent verdicts here with respect to the sheriff individually and has and his policy and i and how do you how do you how do you distinguish it but isn't that to find out doesn't that cut this too far and for anybody to be able to make  that distinction i think it is a fine distinction but i think that the stakes in that the jury made is that the way it's direct involvement that de witt his involvement that it was a direct result of plaintiff's damages was his directing of the investigation authorizing the conduct of his deputies around that necessarily involve a conspiracy you know how broad conspiracy is in federal law wouldn't that have to be a conspiracy well again you told me not to talk about the conspiracy jury instruction that we asked for but i think that the jury instruction we asked for made it sound like it had to be a handshake deal for there to be a conspiracy and i agree that there's that we're talking about a fine distinction but again like i said i think i this jury was highly educated and very very careful in what they did so the jury think could conclude that he directed one of his detectives to do something there wasn't an even though that that person carried out that direction there would be no agreement to do so there wasn't there wasn't a handshake deal between the wit and suzy saying yeah i'm going to do this and we're going to be violating the constitution unsuccessful going back to the clearly established and having a case directly on point in order to proceed with this that the the the panel in winslow and specifically address that point that the conduct that issue would violate clearly established constitutional rights the law requires merely that the defendants need only to be able to reasonably anticipate when their conduct may give rise to liability the contours of the right violated must be sufficiently clear and that a reasonable officer would understand that what he was doing violates a constitutional right that any reasonable officer in one thousand nine hundred nine would know that you cannot you cannot frame six and six innocent individuals for murder and that's exactly what they did here they ignored every bit of evidence clear evidence that exonerated particularly joe white tom winslow and kathy gonzales they pressured their psychologically extremely vulnerable individuals to go back to your cell and dream and this will come to you in dreams and if you don't do something like this this is a death penalty offense they were constantly before anyone  pleaded the testimony as they were constantly told about this is a death penalty offense the stories that people came up with in their dreams board no relationship to the actual crime scene facts for example debbie sheldon dreamed that this murder occurred at eight o'clock but we know from the original crime scene investigation that mrs wilson was with her thoughts on until nine forty five that  evening and james said that there was loud screaming when mrs wilson was being sexually assaulted and we know from the autopsy report that sexual penetration of carrot around the time that the heart stopped so there wasn't loud screaming and the officers just ignored it they just kept pressing forward to get their conviction what about the the the the actress police department and instructions to the to the chief of police to stay out of the investigations the comment was made  because sam sam stephens is muddying the investigation so what the sheriff had every authority to do was to say just police i don't want you in my investigation which is exactly what he did and they said we don't want you in i don't want you in mind best a geisha be cause sam stevens is out there questioning these witnesses questioning their credibility and he's muddying the waters that's what the evidence reflects that that's exactly what happened and did the did the chief of police testify that the chief of police passed away before the first so what's the evidence that in response to that direction that that's exactly what the the actress police needed that they backed the backed out that officers can it's not just that the word unreliable is in the jury instruction that jury instructions that we read as a whole gathering unreliable evidence again not a constitutional violation that's a or between at th pretty and but it's just it's gathering it's gathering unreliable evidence recklessly it's without heat or concern for the consequence of gathering that evidence and then using it in a death penalty case it's just officers the testimony was that officers are trained to filter out unreliable evidence deputy seriously testimony was that he that's what he did investigation he assessed the credibility of all the anybody he would interview deputy seriously and all of his arrest affidavit swore to the reliability of his informants and the information and it also adds other factors in to bols r their credibility he would always talk about credibility reliability of the evidence so it's just really a non factor i mean officers are required to understand whether the evidence that they are going to forward is reliable or not there's any further questions i really don't have anything else to discuss thank you for your argument  o'brian judges and hardly know where to start so much disagreement one of the things i want to observe however is it we're still talking about innocence before you as a parent this wasn't about innocence and that's one of the complaints we've had in this case from the beginning the plaintiffs wanted finding from judge cup that they were actually innocent and one of the jury instructed now it's not an innocence case but that's in fact that they tried to try the case as and that's one of the problems i think that we have as a result of the verdicts of the jury in this case i want to go back to the sam stevens things that keeps coming up i think very clearly two things are apparent sam stevens did something he wasn't supposed to do he was instructed to go interview a witness was serious went and interviewed a witness by himself nobody disputes he should have done not his supervisor or anybody else and that's muddying the waters come in that's what it's all about nothing more secondly the meeting at which sam stevens was confronted with this information while it was in the sheriff's office was attended by the b after his police officers command exam stevens along with the county attorney and all of this occurred after charges had been filed and while the prosecution process was going on and it's clear from the evidence that lieutenant wilkie of the actress police department is the one that removed sam stevens from the investigation this police department didn't appoint anybody else to continue the investigation but there's no evidence in the record that they could done so had they chosen to do that so that's a red herring secondly when mr patterson talks about all the things the sheriff knew if you look at his brief particularly you see that he uses words like should could should have  have those kinds of words he doesn't identify in any particular what it is that share the wit did that constituted a violation the acquiescence in the violation think very strongly shows that the lab believed it based on his actions as inappropriate i don't know of any law that clearly shows that it's constitutional violation not to stop an investigation as a law enforcement officer when you think that you have some reliable evidence maybe even when you have a lot of unreliable evidence think more propre it's standard for law enforcement officers to gather whatever evidence there is to gather and turn it over the prosecutor for the prosecutor's evaluation that's what happened in this case these officers didn't initiate prosecution and in fact most of the information  plaintiffs in this case occurs after prosecution happened pick james dean for example when he was arrested he didn't give any statement first statement he gave was after his attorney had arranged for him to take a polygraph which he failed at interrogation was conducted by the county attorney as well as his attorney and it was at his request at his attorney's bequest that d price for example went and talked to james dean first thereafter all of the counsel your time has expired your honor we would ask that he that this case be reversed in order granting motion for