repeatedly his attorneys in their motion for relief from judgment stated that the breeze botched the test there is not one statement basis or even insinuation anywhere in the state court filings that even tend to indicate that john de vries acted with the intent to deceive factually it's not here either whether he did something is not a factual issue well it's not because we know that he was wrong we know that he was wrong and the how well the factual issue is decided it's an issue of fact right i mean whether he did x doesn't sound like something we can find in the law books sounds like something we would find from witnesses yes i agree that is a is your honor so if it's a fact issue and the district court was wrong the answer is to wait until it's final and then appeal it rather than appeal it in iraq it orally according to  interpretation or finding that could be made based on gadgets representations was a mistake it can only be one of two things i'm sorry well no one everyone agrees that degrees was wrong about chromatograph the question is why it was wrong it can only be one of two things either he was intentionally deceiving or he made a mistake and the actual differences my point is that the state court record establishes beyond debate works or doesn't work we have to look at the complaint obviously to see what the allegations actually are and whether they're involved factual disputes it seems to me we're talking about paragraph fifty one of the complaint where it says degrees either intentionally or with deliber indifference and a reckless disregard for the truth so on and so forth right so he's play something that would normally survive an interlocutory appeal provided there is some sort of factual basis for that so it doesn't become more a pleading question does he have any facts other than pure conjecture that would satisfy there would be by twamley that whatever juries did was done and in tentionally or with deliberate indifference i agree with what you said your honor that if there are some facts they point to that they know or believe discovery will show then it seems to me we don't have jurisdictions that make sense but going one step further from what you're saying i agree that what you read is a conclusion and that has to be supported by facts and if they pled facts that support their conclusion that would be adequate to state a clean but the situation we have here is we can't just look at the facts he put we have to look at the state court records to i don't think that's a controversial position i don't think it's controversial to say that we have to look at the state court record with the state court record utterly contradicts whatever facts he's put his complain and we have to go with what the state court records the state court record let me test you on that because forty two of the complaints the degrees knew that the laboratory experience false paragraph forty three the protocols were deficient so what was said to get him out of jail in the state court doesn't address that one where the other doesn't well it dress is the fact that it doesn't say that is that he got a false positive because of some laboratory problem in that sense it was more that he used improper techniques less of conducting his nails of the used improper techniques and let's assume the use that he made mistakes and let's also assume that that was consistent with arson investigative techniques at the time which you point out the his own experts but that isn't that different subtly perhaps than the question of whether he knew that the lab results were all at the time well and i guess that's the point that i'm making is he couldn't have no home because it was a mistake because he thought that he really had found gasoline and that's based on his flawed methods methodology and improper technique but that's the way i read i think it's the only way you can read his expert's affidavit in the context of what he's saying in his motion for relief and judgment over and over again they talk about botched testing misread results incorrect technique they're not talking about some institutional problem at the lab they're talking about mr de vries every misunderstanding of what he's doing and coming here forty two says that he knew that any m s p laboratory which relied on the single analytic technique will experience honor especially in light of affect that will never be able to discover what john de vries knew it because he's been dead for twenty years he died twenty years before this complaint was written so how can they have a witness says that he sat down had a conversation because we're not talking about all the false positives at the m s p lab we're talking about this particular false positive and as to this particular false positive is the one that's alleged to have harmed david gambit and his experts in his motion for relief from judgment say that this particular false positive was the result of a mistake so that's the false positive that's important if there was some institutional problem at the lab that was generating false positives in other cases what does that have to do with whether with david get it right that it loops back to him what evidence he has to support the allegations in the complaint that relates specifically to your right and then this particular false positive and we look at the evidence we do have what his attorneys represented and what his expert said clearly it was a  mistake like i was saying it was all it had to be one of two things no everyone agrees that he was wrong it's why was he wrong did he intend to deceive or did he make a mistake and all the words they use are but flawed improper technique that he misread the results or you look at these words and merriam webster these words all connote some level of negligence or mistake that's what he said in state court now he's saying he fabricated misrepresented evidence those words mean that he made a misrepresentation with the intent to deceive they're completely at odds they're in contradiction and to resolve that conflict we look to the sworn statements of his experts in tory appeals and qualified immunity up front there is a scenario where you get by twelve but you don't get by rule fifty six because you simply don't have any evidence then you'd still get qualified immunity l bit later before trial understand that there's a sense that's a legal issue but really in johnson b jones whether whether you have enough evidence to establish a genuine issue of material fact is in sense a legal issue and it's a legal issue about facts  and that's why i'm saying this this is different but it looks similar in the sense that it's a legal issue about facts right and legal issue about facts then the supreme court seems to say the facts have to be blatant under the record onder stan the argument i think makes certain amount of sense or at least coherent to say this is this is just clear open and shut in the same way that a videotape is open and shut but it's not a videotape not exactly the same thing if you have any case is that the use scott for something other than videotapes and i don't i don't wasn't able to sions you know it doesn't seem like the same thing you see what i'm saying i understand what you mean but i guess when we look at the language of scott it talks about evidence it's capable of only one interpretation and i think that's what we have here so i understand your position thank i'm almost out of time i'm happy to answer any other questions or try to necessarily concluded this at this moment but the general notion that there isn't jurisdiction over the issues presented in this interlocutory appeal because of the factual nature of those issues but i also want to address from a procedural standpoint what i argue in my brief which is the fact that we're also dealing with a waiver situation which wasn't addressed during brother counsel's argument in that the argument that has been presented in the briefing today by mr de vries as a state is not the same argument that was presented below the argument that was presented below was a very distinct argument that was based on the notion that mr de vries was intitled to absolute witness immunity in relation to the claims that were brought by mr mr davidge because they presented the argument very similar to the argument that was rejected in the opinion authored by judge clay in the gregg review louisville case that because mr de vries ultimately testified at the criminal proceeding that resulted in this conviction that he was entitled as you know judge clay and gregory you explained that pretrial activities that take place by those investigators are not subject to such immunity that was the issue that was decided by the trial court below then after the tr addressed only whether or not mr de vries alleged conduct in relation to these facts was reasonable those are not the issues that were presented in the briefing to this court the issues that were presented in the briefing on appeal or whether or not there was a clearly established constitutional right implicated by the allegations in the complaint again never addressed but i won't say never addressed never argued to judge edmonds and in fact judge edmonds opinion specifically states that the issue of whether there was a clearly established rate has not been contested by the defendant in this motion so about a clearly established right unless she was dealing with qualified immunity would i pod just one more time or i took you to be arguing that the only issue below was absolute immunity not qualified immunity they argued absolute immunity initially and then they argued in the alternative qualified immunity but he's talking about a clearly established rule of law she's talking about qualified immunity she would resolve no no your honor what she specifically stated was that in their qualified immunity analysis they were not contesting that there was a clearly count clearly established constitutional right at issue that instead all they were contesting was whether or not on the basis that's been presented to this court and what i would point the court to is you point to the other that's where i'm confused it may be yet to be persuasive right now i'm confused if it was argued absolute immunity step one in the alternative qualified immunity qualified immunity as two steps all that is are you to judge edmunds and judge edmunds rules on absolute immunity and then rules on step one step two qualified immunity can you come and say that the argument raised about qualified immunity wasn't raised because is that when they argued qualified immunity below they never argued that the notion of fabricating her misrepresenting evidence is not a clearly established constitutional right that there's not a clearly established constitutional right to be free from that conduct that's not the argument that they made below that's the argument that they're only making here similarly we addressed in our briefing that a recent opinion from this court they were arguing the it's that it's clear as a factual matter it's legally questionable as of a factual matter that he didn't do these things that is what they're from whether it's quality whether it's clearly established violation if he did  exactly or what they argued below is it's clear that he did not do these things what they're arguing in there appears to me now that's what he's arguing now that's what was argued during the course of oral argument but if you if you look at the briefing your honor that was presented  arguing inconsistently with this brief players i'm while i am arguing to a degree that there was an inconsistent argument presented with the brief and what i've spelled out in my brief your honor is that the argument that was presented in their brief was not presented below and that there's there's a recent case law from this court within weeks of the briefing of the of this case there's a recent case law from this court that explains that even if you present one qualified immunity argument below and then you shift the nature of your qualified immunity argument on appeal that argument can't be considered on appeal that the also suggesting is like the or in his oral argument he is complying with well yes and in his oral argument he appears to be resurrect to believe that we're dealing with a little bit of a waiver issue but regardless of whether or not we are dealing with the waiver issue were guarding the distinction between the qualified immunity arguments i think that the questioning of the panel during her brother counsel's argument is accurate in terms of the notion that what we're dealing with here is a very fact specific question i understand and that is argument isas degrees is titled a qualified immunity qualified immunity because the state court record underlying the action establishes that the breeze did not act and th constitutionally arbitrary or contra chocking manner and didn't violate clearly established constitutional rights how is that different from what he's arguing so you're you're right you're on of the third portion of his argument was that the shocks the conscience applies and he argued that the reason why this shocks the conscience standard applies because of portion two of their argument is that there's no amendment that provides an explicit textual source of constitutional privilege protection against the this case to go forward there's got to be some basis for the allegations that you have in the complaint and the state's argument is well geez those arguments are inconsistent with what you said in the in the state court case under stand that position but what facts do you have or anticipate being able to get in discovery that support the these allegations in the complaint that rise to something above a mistake arson investigation side yeah so i want to be very clear about that your honor this is this is one of the portions of the case where we do not have this specter hovering above us of an idea of a change in arson science six when these criminal proceedings were taking place i thought that the the expert said that the this fifty cation of eating the gas they are moderate say that word had changed significantly they did talk about notions of sophistication but in terms of the equipment that's used and the results that are produced my understanding is that they are identical today as to what they were in one thousand nine hundred five and i believe the states before we spent a lot of time on that let's assume that that's true at the same same science same equipment everybody seems to agree made a mistake in how we read the machine now the question is whether the something more to it whether he knew he was making a mistake he knew the machine was inadequate he knew there were false positives that many should have done another cap those are all the various things that you say so what sort of factual basis do you have for any of this stuff you said in the complaint i think part of it your honor is understanding  chromatography test actually looks like in terms of the results that are produced this isn't gas chromatography isn't an art it's a situation where a graph is produced there are lines on the graph their peaks and valleys those lines represent referenced in our briefing we've referenced letters from mr gates defense counsel during the criminal proceedings that he wrote to mr gaboriau who was the prosecutor requesting all graphs and he wasn't given the graphs that mr de vries produced during the gas chromatography testing that there was not gasoline our contention is that under science and clearly established principles of science there will be an expert that will testify if we can simply get to the point of discovery there will be an expert who will testify that no reasonable individual who was engaged in this scientific process as a career could have looked at this graph and simply made a mistake and said that there was excel or in on this carpet that for someone to make that assertion it's such a patently false assertion that it must evidence some form of intent or malice on the part of that individual your state court experts trying to get them released deal with the reasons roll in those two are only t would i go to well your honor you you wouldn't see that in the record at this point because that's not the showing that they had to make in the criminal proceedings and your honor as someone who's had some involvement on some of these exoneration proceedings not necessarily mr gats case but in other cases there's always sort of an instance where you're toeing the line because you're dealing with sensitive issues where prosecutors have made decisions the state has proceeded in a certain way and people on both sides are trying to want to assert as well your honor that i think that we'll be able to bolster that testimony through or those opinions through deposition testimony of the various people who are involved in this process i know that mr de vries isn't living anymore unfortunately but he wasn't working in a  vacuum problem no we don't have a statute of limitations problem here and this was a it was a time we filed cause of action time we filed one thousand nine hundred three cause of action they've made some procedural arguments that aren't in front of the court today regarding our ability to proceed against the state judge edmonds has already ruled on that and ruled that we could properly present claims against the estate and that's that's not an issue that's before the court and similarly your honor to to a question judgment here that you ha brother counsel there is certainly an opportunity for them to renu a motion or renew an appeal or renew a motion dispositive motion for summary judgment on the basis of qualified immunity after discovery we're not saying at this point we're not moving for summary judgment we're not saying that we're entitled to a finding of liability against the degrees of state we're simply saying that under it under twelve under all the relevant cases regarding the pleading standards we've played a viable cause of action against the  state and now the next step in the process is to proceed with discovery let's take depositions let's talk to experts let's find out whether or not our allegations can be fleshed out during that discovery process if they can't be i know will face the same thing that we face in every one thousand nine hundred three case i work on which is a summary judgment motion and then at that point we'll deal with the merits of our factual allegations and the quality of our case and the quality of our discovery process and whether or not we've been able to flesh out what we've lived in our complaint but at this point i think his judgement has correctly recognised we've very clearly pled that he intentionally fabricated or misrepresented evidence and that it was that fabrication that led to the arrest  imprisonment and conviction of david gavitt that is a viable cause of action under federal law and i don't think anything else is needed for us to proceed past that stage your certainly more definitive here in oral argument than you were in your it but is that enough well your honor i think that one of the reasons perhaps and maybe this is a failing in my briefing and i apologize if it is one of the reasons that i don't make bold assertions in my briefing regarding what the evidence is is because that evidence hasn't been developed yet i feel like that's what the other side is doing the other side is asserting this is a you can't just rely on conjecture you know what the evidence would be correct you've explained to us what you say an expert is going to say that's true that's pretty persuasive but it's not in the very i apologize for that your honor i know this was the argument that was presented below i was the individual who handled the summary judgment and summary judgment arguments below in regard to all these motions and i know that's the way that it was presented to the trial court i would assume that it was something that was in my briefing below and i apologize if it wasn't in my briefing to this court i don't know if it was perhaps in the other brief that i provided to this court in the next case that we're going to hear that helpful so if we go look at your briefs regardless of any potential deficiency here you told adman's what you believe the evidence is going to show that supports this is more than mistake i certainly believe i do did your honor and that you know we were dealing with a year and a half ago but i think between the hearing in the briefs that was a statement that was made to her it's not talked certainly i think you're under some of the labor your earlier argument a little bit more but not too much  the portion that you were reading to me the argument in the outline does seem not to mention the kinds of things that he's arguing here but if you look in the statement of issues presented is factual allegations in his complaint or directly contradicted by the end disputable public records of the michigan court and that scene is not left to their wills repeatedly made albeit under a heading that seems to be talking about something else it says the problem for gavin is that the public record of the state court action underlying that case demonstrates that the actions are not so egregious to shock the conscience they show at worst it was a mistake so they're referring to those records and saying you're bound by them and look over here on page twenty twenty one of their  and then make that argument in greater detail then when your brief comes down and the question is whether this court has jurisdiction it's a little bit hard for me to tell whether you are arguing that this  it just says you know than an error like your appeal only this this court with jurisdiction and that's not the case here is that an argument that there is no do you accept that we have jurisdiction in this case i do i don't accept that your you're making the argument which is kind of made in your read brief that there's no jurisdiction and then in their reply brief they very explicitly make the argument without citing scott that they make a scott type of argument and page one of their reply brief so you know i'm he could have been has no doubt about it but it is addressing the guts of the argument that he's making here today is not yes it is addressing the guts of the argument he's making today but i think as you recognize during your questioning your honor much of the argument he's making today is a fact based argument time i just want to give you a few page id numbers five forty two to five forty nine is where his attorneys are talking about degrees is involvement in the state court case and seven one thousand and seven twenty five is where the that judgement i don't recall any and i've never seen it in writing any affidavit this evidence will be presented only affidavits are evidence that i've seen is the evidence that i've talked about today john lentini the statements  lawyers in the motion for leave judgement you know i have an affidavit this is this is rule twelve but when put to the test it seems to me you do have to have some basis for your factual assertions to get a wildly and he seems to say that that is provided that says this court can determine that the trial court's determination that the facts are subject to reasonable disputes to wells or lucky tory appeals are permitted where the plaintiff's version of the facts is utterly discredited by the record as to be rendered visible fiction it is so why would the state do that unless to protect the assets of the estate which i assume have been long after there was no estate until two thousand and fourteen when point i just try to figure out why you are fighting over this estate if you know