good morning your honour's morning like to reserve two minutes for rebuttal if i may my name is justin i am here on behalf of philip and cathy miller the in this matter philip and kathy miller were arrested in the spring of two thousand and eleven they were accused by delaware county of stealing from their mother and mother in law and subsequently tried on that accusation and acquitted in two thousand and twelve arising out of that accusation acquittal come the millers claims for malicious prosecution false light invasion of privacy  emotional distress and there's also a claim for supervisory liability at issue here this morning i want to reiterate your honour's that they appear to first be interested in your response  to the feature that here yes there was detective the detectives but a grand jury issued an indictment correct your there's a presumption that the companies that that aspect wrecked your honor and it's well established that there is an exception to that rule that indictment by the grand jury would have no precludes of effect as to the issue of probable cause where it can be shown that the investigators in the case knowingly gave the prosecutor's false information to support and aid the taking the case to the grand jury and i think that the trial court got the case law all right we're relying on  the city of detroit and henchmen be the more for the proposition that there's no precludes of effect of that that that indictment has no precludes to the fact if the investigators lied to the prosecutors to to encourage them to seek the indictment where we disagree with the trial court is the trial court's finding of course that the that the plaintiffs failed to show the court evidence of those lies and misrepresentations in this case we believe there was a mountain of evidence to suggest that the investigator there was only one investigator detective allam a lie to the prosecutor who was responsible for taking the case to the grand jury the key issue in this case and this is really not in dispute was the competency of the alleged victim betty robbins the statements in the investigators reports are that betty robins was a helpless  that my clients philip and cathy miller her daughter and son in law had on her prey preyed on her now that allegation makes a lot of sense if in fact it was easy to steal from the elderly if the elderly are incompetent and they have investigator didn't tell the prosecuting attorney hey this is just information that i got from the estranged son who hasn't seen the victim in ten years what the investigator said in his reports and in his meetings is it is a known is not the evidence shows that she didn't have any signs of dimension until the end of two thousand and eight and she wasn't diagnosed until two thousand and nine i believe on the timeline  from larry robbins who is the son and the problem is he presented it to the prosecutor as fact it's a fact that she had dementia and alzheimer's and the invest in prosecuting attorney did nothing thereafter to corroborate that statement made by the investigator in his deposition after the fact he said the prosecutor one's an investigator correct correct so do prosecutors investigate but right i'm not suggesting your honor that there's any claim here against a prosecutor's those are duty to investigate who were where i mean where's the fault lie it's all with the investigator who i didn't give her he what would you say it he tilted the story a lot and that's what we're saying and we had we think the evidence shows that he lied he's here because because he told the story from the sun but didn't give the the aspect that the son was a malcontent or could be could be coloring the story for his own benefit i do i do want to point out your honor it's not clear where detective  story that she was an alzheimer's patient we assume that he got it from larry robins because that's where he got all his information he didn't talk to a single witness except larry right and so worse assuming that it came from larry robins so first of all what our contention is if you didn't get familiar larry robins he made it up out of thin air because it wasn't true and secondly if he didn't get it from larry robbins he should have told the prosecutor that and not stated it in his report back got it from the sun i mean even if it's incorrect if he got it from the sun how can that be unknowingly intentional false statement or a lie if you would characterize i mean it just seems to me that that's you  know pretty pretty a broad interpretation of of the investigator well the investigator told the prosecutor it's a fact it's a fact she was incompetent when these people were stealing from her admits his test prosecutor who said later gee i wish i would have known that the investigator hadn't talked to the doctor hadn't talked to the preacher hadn't talked to the lawyer who been working with mrs robbins for twenty years gee i wish i would have known that there was nothing to corroborate that statement this is all hindsight and of course there aren't any claims against the prosecutor but gee i wish that that investigator had dug a little deeper but the the problem is that wasn't the only misstatement in the detective's reports we're not here today to argue that he did a sloppy investigation certainly we do feel that he did a sloppy investigation but there were four or five critical key areas where he simply out like ride the lied to the prosecutor the other one that one of the other porton one says that he told prosecutors sleeper who was the grand jury prosecutor that phil and kathy miller refused to speak to investigators he said kathy miller refused to  kathy miller was on the phone with detective allam and she said can i help you can i can you tell me what this is about and she herself was under investigation at that time in two places in his investigative reports detective allen says kathy miller refused to speak to me and we don't know where that's coming from because that is unequivocally false when i deposed prosecutor sleeper he said gee i wish i had known that phil and kathy miller wanted to talk to me with or without their lawyer because i certainly would have liked to talk to them prosecutor sleeper never got the opportunity to talk to phil and kathy miller because detective although i'm told in that the miller's didn't wan talk to him so the question of the communication between the investigator and the accused very critical very relevant because of course when we hear of people refusing to speak to investigators we think well you know those people must be guilty they don't want to talk to the police even though it's their constitutional right to go and get a lawyer so we we view that issue as very critical in the investigation as well there were a number of other knowing false hoods in the reports relating to the millers allegedly giving away their mother's car relating to the millers allegedly somehow fraudulently dealing with the sale of betty robbins is home to the sure mother that disappeared f enough your honor and the time period during which the millers are alleged to have stolen from betty robbins betty robinson was fully functional seventy nine year old woman who was in charge of all of her financial affairs i mean that of her well she was spending so she was spending some of the money herself it came out in the trial which is not really relevant here that ninety nine percent of the transactions that were quote unquote suspicious were actually mrs robbins using her own credit cards and our own funds under her own own free will so it's so the  investigator in this case took these bank records in a complete and total vacuum and made up a story to go with them about how betty robins was elderly and incompetent in also hours and then told that story to the prosecutor and in addition told them that they these people don't want to talk to you and by the way they gave away their mother's car when detective all of them made the statement to the prosecutor that mr and mrs miller gave away betty robbins his car the information he had in his possession at that time was that the car was given to her sister in law i believe betty robbins signed the transfer herself the millers didn't have anything to respond to the supplemental authority that was offered that that suggests that without the benefit of the grand jury transcript the courts very hampered in what currently we don't have it we don't have the drain the grand jury transcript honor and that's a non issue because the case law is very clear the tort of malicious prosecution encompasses everything from the investigation all the way up through the indictment so whatever happened at the grand jury we want to proceed without without that correct that's it's irrelevant because the focus here is on what happened to prompt the indictment in the first place and we're focusing solely on the investor who testified before the grand jury or what they considered well i thank you thank you your honor say appreciate your time bail the first is there is probable cause to indict the plaintiffs the second is detective didn't participate in the decision to indict the plaintiffs and the third is that none of the false report allegations made by the pla probable cause that's actually not quite accurate in this circuit indictment is conclusive proof of probable cause and the only exception to that conclusive proof of probable cause that the defendant knowingly presents false testimony to the grand jury and that requires the plaintiff plaintiffs in this case to show what actually occurred at the grand know recently we follow the supplemental thora the snow versus nelson where this court different panel specifically stated that without the testimony of the grand jury in the record we can't discern who testified much less presume that someone testified falsely and judge sided without that case was based on your  opinion and young versus owens were you wrote in dismissing the malicious prosecution claim where there were allegations of false testimony but there was no record of false testimony in the grand jury and you dismissed  or affirmed the dismissal of the of the case also appellants counsel argues that we should not just look at it at the grand jury level she in fact  argues that what happened in there is really irrelevant because it's all of the misstatements that occurred in the investigation which was a a a predicate really to the grand jury proceeding that we ought to be looking at and that's two in which that exact argument was rejected by another panel of this court evidence that the defendant provided inaccurate information to the prosecutor is not evidence dishonesty that grand jury and this court has been very consistent in these types of cases that you have to show what actually occurred at the grand jury falls another case that we cite no evidence of irregularity in the actual grand jury proceedings and judge to your point about presumption even in circuits where it's not conclusive proof but for example the second circuit where it is just a presumption which could be rebutted we cite a case rothstein vs career which also states the plaintiff has the burden to specifically show what occurred in the grand jury in order to that presumption so even if it were a lower level you would still have to to show what happened in answer to judge donald's question everything funnels back into the conclusive presumption and we and we need the grand jury and the pre counsel's been talking about and judge donald's asking about all the the prelude to the grand jury this is that matter not i don't believe so it would matter so we're it matters and i'm going to get get to this point in in my second part where so detective boland didn't participate in the decision to prosecute now where there's case law about you know i think the counsel course makes the legitimate point that he fed the prosecutor sure and so where there's case law about the any inaccuracy or dishonesty in the  report would relate to that element of malicious prosecution detective own clearly did not make the decision to prosecute the grand jury prosecutor mark sleeper testified that he independently reviewed the  reports that he did his own legal research and then he made the decision to prosecute do investigation he didn't do any of that had someone decided to talk to the doctor and the indian chief but ok somebody would talk to some of these people they would have had a different take sure and so that question goes to zero is their claim that if the detective did a better investigation  proper malicious prosecution and the answer that is no we don't have that claim in this circuit i don't think this court has to go any farther than the grand jury indictment they don't have proof of a knowing false statement a grand jury that's the that's the end of the malicious prosecution if you wanted to go further or if you decide to go further there was probable cause for this indictment in any case you know this case started when betty robins betty betty robbins told her son lester that kathy took all my money and dumped me here maybe in a nursing facility that's what she told  address that point in a moment but when you look at the records of betty robinson's husband died on june ninth two thousand and four at the time of death betty robbins had a checking account had thirteen thousand dollars in it within by january sixth two thousand and five that account was down to thirty three dollars and a lot of that money went to philip and kathy miller  and by the time that this case went to trial betty robins was in competent she couldn't testify so all they had were the records and judge mcgrath couldn't find just based on the records that he could get beyond a reasonable doubt although he did say that the state was fully justified in bringing in the case and the case also got by rule twenty nine motion for judgment of acquittal which while not conclusive proof of probable cause and it in and of itself is certainly a supportive factor in determining whether there was probable cause but when you look at all of the withdrawals and the corresponding deposits into the miller's account  and this included a t m withdrawals from columbus mansfield and hilliary which are you know twenty to forty miles away from where betty robins live included payments for the car insurance it included airline tickets you know gas payments when the only car that betty own was a car that didn't according to the plaintiff didn't work and when you look at what happened report from her son is that kathy miller told her that she needed to sell the home because she didn't have any money so she sold it she made money on that transaction but twenty five thousand dollars and i less than four months that twenty five thousand dollars was all transferred out of her count but there was never any guardian or guardian or conservatorship established and there were any court oversight with respect to  betty's finances and her care there was not and that money was transferred to the millers in may two thousand and five her car was given as a gift to fill  against it in two thousand and nine and then surrendered the policy in two thousand and ten total of about twenty four hundred dollars and but i guess judge seiler i do want to say  attorney stated well ninety percent ninety nine percent of of these transactions were her own free will or even if you believe that and one percent wasn't then there are still probable cause for theft so even if you take check for or do you know i don't know i don't have a handwriting analysis but i think the point is a reasonable detective could look at these transactions and getting information from other family members who say who tell him our mom doesn't spend like this this isn't like our mom and he could believe that there's probable cause that a theft is being committed then turned that investigation over and we did cite a case by the way state versus straight which is in ohio court of appeals case that's a very similar situation and to the point about competency that's does not require that the victim incompetent you can be competent and still have money taken from me and state versus asked right which is a very similar situation the the much the mother who had money taken from her by her daughter was competent and didn't want to briefly address detectaphone did not make the decision to prosecute that's another reason that he can't be liable for malicious prosecution he's got to participate in a way that aids the decision he turned over his investigation to the prosecutor the prosecutor reviewed it and the prosecutor made the decision to indict and he testified that it was his decision and that he didn't get any influence from the detective who made this decision sleeper he has not been sued or he was not sued they did sue the prosecuting attorney of delaware county carol o'brien who had nothing to do with the decision to prosecute this case  there was what the allegation is against carol o'brien is that there were some conversations about whether the case was questionable or not actually she testified to the exact opposite on the record entry sixty the twelve thirteen to sixteen that there were no discussions about whether this was a questionable case it wasn't a questionable case in their minds but even if it weren't she had these discussions the decision to indict and discussions about the decision today are entitle to absolute immunity for a prosecutor as judge frost noted it's difficult to conceive how miss o'brien's minimal involvement in this case could lead to a constitutional violation as a supervisor you have to show that she actually herself engaged in unconstitutional conduct i want to go back to detective because she said that he did not aid in the decision to prosecute  but the the prosecution was based on the investigative report that was prepared by detective and presented to the prosecutor sleeper so that because that was the basis how can you say that he didn't aid in the decision making because they were alive his report so judge donald that's where if he misled the in the plaintiff's burden to produce a grand jury transcript but that's where that case law comes in i just wanted to read you know this is what he said about he he he never called her he robbins as an adult female who has been diagnosed with the mention probable all southerners but he was only able to provide care for so that was all true it's in the complaint that was all true at the time he never used those words incompetent they're just they're making that up i see that my time is up we've asked for this to affirm the decision of the district court thank you she told her daughter to go use that power of attorney and that accounts for the other one percent of the transactions that were all given under or made under very robinson's own authority the second point i want to make your honor is on her bottle is that we should not be talking at all about the grand jury transcript because the trial court got that part right the trial court spent its entire analysis talking about the pre indictment conduct of the investigator the trial court didn't think didn't see it from our perspective and didn't think that the lies amounted to to much and didn't think that they had a negative impact on the decision to indict but the trial court found and i think they were relying and i think judge cross was relying on henchmen to be more a decision from this court that states that the pre indictment conduct of the investigator is very very important in the determination of whether or not the indictment was made with probable cause  of action the less the matter goes to the grange your don't have a cause of action for malicious prosecution in this case because it's based on the indictment and if there was no doubt but then there was henchmen the court says we've got to look at what dominoes led up to that indictment what prompted the indictment in the first place and if it was the lies of the investigator to the prosecutor the not just that is the inquiry for the court here but you have to trace it through the grand jury that he may have come in there the grand jury that he might report that's it's all erroneous and let me tell you what the true story and your honor the question for a jury in this case which we unfortunately never got this to a jury is would the millers have been indicted anyway to the defendants want to stand up and say yeah we had all kinds of proof that they would have been indicted anyway that's not for them to say that's for a jury of the miller's peers to say and that is what the the trial court got wrong taking that decision away from a jury of the miller's peers i want to know very quickly because they see amount of time that i filed some additional authority this morning a case out of the tenth district will receive an opinion in due course thank you