supreme court put it the the analysis is whether or not the action is intimately associated with the judicial phase of the criminal process and there is nothing inherent in that that preclude a arguably administrative act from nonetheless being subject to the prosecutorial immunity and that is it's a long way of getting around to guess indeed that is the issue here whether or not this arguably administrative inform conduct is none the less protected by the at the absolute prosecutorial immunity and so you would put the issue differently then you would say it's not whether to organize the office in a manner where all the deputies were aware of the deals that were being cut with prisoners right that's certainly what the supreme court indicated in chief that's a fair statement you can't make a decision as to whether that's  administrative some of it's prosecutorial but there's a distinction between telling the clerks how to operate deciding which prosecutors will be assigned to which offices and the sort of due process issue that the united states supreme court said absolutely positively must be effectuated in order to make sure that criminal defendants have an opportunity to have a fair trial they impose this burden on prosecutors because of its impact hire i mean blacks because the trials won't be as efficient that would be designed to get better trial by a bigot who was the district attorney but it would not be a prosecut the future of this office rests on whether you know how you try this case and i'm going to give you some advice i'm going to give you some help and i'm going to assign a particular investigator to try this case that all might be directed to prosecuting particular things but what if what if the statement by that by mr bennett care by a supervisor is not directed towards one particular trial but a type of trial any time there is a shotgun murder we want you to try it in this particular manner is that not immune because it's not cloak it's on a single prosecution it's clearly focused on prosecutions of crimes within the scope of the wall of a prosecutor as prosecutors where do we say suddenly they're not engaging in conduct that affects trials and it's more result be that every elected da or every head of the off with will say to himself you know i have a responsibility to comply with the constitution and see that our procedures in our office are proper i think that that as many cases from this circuit and around the country have said that the mechanism that ensures that prosecutors comply with the law is the ability of the criminal do we do with that then again that goes and sort of contradicting myself when it's an administrative act then of course the absolute immunity doesn't but i am not arguing that that conduct that truly is administrative and doesn't have anything to do with the judicial phase of the criminal process well but then you obliterate administrative duties no not at all i i think there are clear situations personnel situations that truly are not within the scope of the absolute immunity and you know where exactly that line is i know that the circuit has dealt with it and so violence in the supreme court didn't exactly clear that issue up but i think it's much clearer when you're dealing with issues that don't impact directly trials this impacted this alleged lack of a policy impacted how evidence was presented to the defense counsel in an individual trial it may have been policy not in acted at the very highest levels but it impact its purpose if you will was in the trial it wasn't who's going to have which parking spot who's going to be prosecuting which cases those clearly have a step away from the basic issue prosecution this doesn't and i think that with that distinction it avoids the problems that you're concerned about i mean there's always however we apply immunity is qualified  absolute there's always going to be a grey area that's why these issues are constantly coming before this court and the supreme court and i don't think we'll ever solve that one because the inventiveness of the human being and finding new ways to come to the edge have to go back to the trial court for any reason at all well if it only just either way i want to know both ways well i mean it's currently pending down there as to other defendants obviously as to t yes i mean we the two individuals have not are there any class problems or anything else that has to be addressed by the trial court if you do not prevail i'm sorry i missed one word any any other issues that have to be addressed by a trial court if you do states supreme court with regard to get leo and fail to create a policy fail to disseminate information throughout the office the appellant continuously wants to focus on the impact ultimately office ultimately affects the trial stage the landmark case of pacman states whether something is intimately intimately associated with the judicial phase of the criminal process  fall under that heading the clean of the fletcher focuses on the nature of the function we are focusing on administration of an office creation of policies it's is the conduct that is at issue what we have here is a record keeping system is a a failure if you create a record keeping system a failure to create training individual deputy district attorneys how to share information your honor focused on a man who lost his life and who was executed because of this failed policy my client was twenty four years of his freedom but the los angeles county grand jury focused on taking the years in which this practice was prevalent specifically condemning the policy making of the los angeles county district attorney's office the largest district attorney's office in the united states and this conduct not soley affected trials it also affected investigations it affects everything when there is a potential course we placed him in it we argued in our pleadings in the district court and before this court qualified immunity is always available to a county official a government official to make a determination whether there was no request for qualified immunity in the alternative no you're on not not not at this juncture not in the twelve b six motion to dismiss phase your honor the decision specifically use the terminology of the prosecutors office these two men the deputy district excuse me the district attorney and his and his chief deputy were in charge of that office they were not in the courtroom they were not as as judge reinhart stated providing any kind of advice to the line da about how to try a case they were making decisions which were partly personnel decisions  partly record keeping and filing systems and ultimately after the grand jury brush brought to light the injustice that was occurring they began to determine what we need to create a central index we need to create deputy district attorney in the courtroom from being harassed from here from preventing him from being as well as advocates on the part of the state in this case the deputy district attorney the head of the office would receive the the only way i would foresee that he would receive absolutely munity is if he would intervene on a particular prosecution if he would focus on quality of evidence in a case it would possibly be on more on the border if the head of the office said we we know that mr fink is a is and is an outright liar we know that he will prove priest present perjured testimony but we decided to use him anyway that with a little bit closer i would still say that with the administrator belief there focusing on a particular witness here we are talking about a generic type of evidence and therefore as in the gensler case which this court focused on where the supervisors were providing specific advice to the deputy district attorney about in which no particular weapon was used or a particular tactic with yours i would argue your honor that would also be administrative because that is dealing on a generic policy level rather than on a case specific level it is not incidentally associated with the judicial phase of a particular case and it is a closer call is clearly a closer call because it's talking with how they're going to perform trials so it causes it would cause more of a concern that there's a possibility for immunity but still your honor the the reason we hold policymakers in check through absolute immunity is because we as your honor stated we want them to look over their shoulder we want them to be concerned about what kind of policies they're distinguish well i don't think it's a question of whether it's less or more egregious it's a question of not wanting to interfere with the prosecutor's ability to or his supervisors ability to guide the direction of a particular prosecution if we should sue isn't he doing it in both he's doing it in all categories of cases what's the difference that's what i'm asking my in my view your honor is that we want the policymaker to be held accountable if he's making a parag brush unconstitutional assessment that is contrary to law and we want to hold him in check we don't want him to feel harassed or inhibited by particular by an onslaught of litigation and liability if it's the only with a particular case we as a society we want to preserve district attorney's ability to zealously advocate for the state we want to not allow the force of those in the courtroom to be worried that they're going to be held accountable that's why a prosecutor in the courtroom uses perjured testimony he still amusing as as tragic as that may seem he's still immune because we don't want him burdened with litigation but when the policymaker is setting in motion a system in which outrageous on caution is unconstitutional activity continues on a case by case basis which is exactly what happened here through the establishments los angeles county grand jury that this is so far from an isolated incident and if there was any institution in the united states that was under an obligation to take into account the mandate of  leo versus united states it was the los angeles county district attorney's office because they are the largest one and they are the ones most prone to potential corruption in the use of evidence  the and the problem also your honor is that this can never be remedied in the courtroom in this case what what what the big deal that was given to mr fink based on the policy of mr van de camp or mr lives they could never be cured there's not a public defender there's not a superior court judge you can go and go to bat for mr goldstein say this is problematic cross examination would not be effective necessarily because no one in that courtroom knew that mr fink was lying and perjuring himself when he said he had he was you know benefits this is exactly the type of conduct that warrants liability for policy makers and your own i believe my time is up but i i that the liability for these two individuals in their role is a just act it's not a slippery be able to advocate zealously but that applies to the district attorney in making policies regarding how cases are going to be prosecuted we don't want district attorneys elected officials being constrained in their ability decide how they are going to prosecute cases whether individual cases or entire class of the case does by the fear that they're going to be sued for it they may be thrown out of office for it if their policy is found to be contrary to what the public wants but if they make a decision that as a prosecutor i want the prosecutors under my supervision to prosecute particular cases in a particular way that is worthy of protecting just as much as the individual line deputies decision to prosecute an individual case in a particular way and i would argue that there is a lack of policy goes directly to that the decision whether or not to provide information about plead eales to defense counsel which absolutely was required very core it goes to how cases are going to be prosecuted if you make a distinction between making such a decision as you've just described and simply failing to make a decision for failing to run an office neglect or a specific policy decision requires you to go into the underlying facts the decision making and other words to have a lawsuit the whole purpose of absolute immunity is if if the district attorney sad to hell with the supreme court that's no different than a line deputy saying i don't like brady i'm not giving him the information it's as much of a pros as any other the only way to answer the question of whether it was a conscious deliberate decision versus simply a screw up is that actually litigate the case but that's not what absolute immunity is all about we don't go into motivation reasons facts it's effect it's another class you get the get out of jail card free wrong is that may seem in certain situations and that that comment is found throughout the cases that the impact of absolute immunity is that just serving plaintiffs may not get their day in court but the overall public policy underlying the immunity it's been found to be as far as a specific case dealing with an overall policy yes there are comments in other cases about administrate of an investigative acts applying but as far as i know that's the only one that explicitly addressed what