is especially important when the witness who's testifying is i'm puzzled counsel but when you start with the constitution we have an elaborate set of rules of evidence and doctrines for district judges have to run their tr are you saying that those doctrines and rules are unconstitutional and you have to leap to the constitution because the rules of evidence offer you no support well the rules of evidence six zero seven and six zero eight do provide that my client had a right to impeach to join and why don't you start with the rules of evidence it's a fundamental doctrine that courts never turn to the constitution the most it's absolutely necessary now i thought maybe you don't start with the rules of evidence because the rules of evidence require an offer sorry back at three thirty one page four there were two two offers of prove me during trial that dr santoro would have testified that he present he he heard he told nothing to d rush that was adverse to dr rao and what he told dr rush was that all only positive information came out about dr ralph and that really concerning information came out about actually lawyers lead with the constitution when they're lazy and they're not researching their real arguments well your honor if it's a violation of the rules then arguably it is to the discretion of the trial court but when  it rises to the level where a party is country legally the supreme court ever said that in a civil case well i believe that the decisions an opportunity to impeach in the civil case is guaranteed by the constitution even when not by the rules but with this our been held while part parties do have a right to impeach  applies equally to civil litigants both plaintiffs and defendants and that addresses an issue of impeaching a witness so i believe that that case stands for the proposition no well dr rao was tonight a right to impeach a party in this case who was testifying about an issue that was material to the case he was required to prove and even under an of discretion standard which is whether a reasonable person could could could accept that view or could find that or whether that view was reasonable it wasn't it's fundamental and it's basic and i believe probably every citizen in this country knows it that when there's a trial and one witness testifies about something that's important to the case material the other side gets a chance to test that that is fundamental was there it's under the constitution or it's under the federal rules which allow for impeachment it was either a kind of violation of the constitution or it was an abuse of discretion it's clearly not proper to prevent a party we were not even allowed to ask dr rush what did dr santoro say who are fighting him what was the content of his statements she testified that based on what he said she referred these anonymous allegations to the ethics officer and we were not allowed to let the jury know what he supposedly told or either through dr rush or through the witness we wanted to call dr your honor there was no after after dr rush testified there was no more testimony and this issue because we went to the defense case and the defense called no witnesses and presented no evidence on it so this was the time it was proper basis to call this witness to impeach dr dr rush you can't do it initially she said we couldn't do it at the pretrial conference because she said this this this committee's investigation didn't relate to the ethics issues that was the finding there at trial it was hearsay that was the basis but if if that the rush testified that she made this decision based and the disco discussion with dr santoro that goes to her state of mind and we should be permitted to bring out that evidence show what was the statement and does it support bad affected her state of mind and we were never allowed to do that under the rules under the constitution that is improper it's an abuse of discretion and it is a violation even civil litigants have a right to impeach witnesses in a trial and that's consistent with this court's testimony was dr rush's testimony was that these individuals gave her information that that horrified horrified them this is what the jury heard but the jury was never allowed to hear the content of that information in this case is about that was the event where anonymous allegations judge rushed into dr rush to testify i didn't i didn't know whether these allegations were true or whether they were just being made by a disgruntled employee and she did testify that she certainly knew many of the allegations were false she knew that she knew that even when she received them that many of them are false to the anonymous source identified three pick every search papers that he said had errors she had another doctor look at them and he said they were excellent so this was the step where dr rush was was supposedly deciding whether she was going to advance these allegations against this tenured very successful researcher who ran the cancer lab brain cancer lab at the university of illinois he opened it he got the funding for it he brought in millions of dollars to the university of illinois this was the point where dr rush was making a decision do i ended here or do i advance it to the ethics officer and she claimed to have done it based on the concern with the jury instructions is that under under federal law that you can have a section one thousand eighty three due process violation if you don't have to show that the  knowingly if you look at the for the first part of the instruction is that that the defendant knowingly deprived dr allen who protected property interest so the instruction defined what knowingly means so the jury understands it doesn't have to be that they actually engaged in the activity but they could have turned a blind eye to it they could have condoned it there's many different types of conduct that could support a finding that the that the violation was knowingly and but the problem with the jury instruction is that that this knowingly definition which allows for condoning approving or turning a blind eye which is knowing it and just pretending like obviously it's not they are you know true from that that the problem is that that definition was only applied only use knowingly in the very first element of the jury instruction the second element sort of refers to what it says they did so either by constructively discharging so it's sort of somewhat ties into knowingly but the third element of that instruction which is that they fail to provide him due process in the form of notice in the opportunity to be heard that alan meant which is really critical here because that's what the claim was a big part of the claim that element wasn't tied to the knowingly is definition at all it didn't refer to knowingly it didn't refer to condone ina or turning a blind eye or anything and in order for this jury instruction to be in accord with federal law it would have to be clear to the jury that that third element could also involve the defendant's condoning it or turning a blind eye to it or proving it but that the judge only had knowingly in the first the first element and each of those must be proved so we're we assume presume that a jury is going to follow the instructions that are given to them by the court so we can assume here that the jury had the wrong instructions and accordingly dr rao was not given the benefit of the jury understanding that that the defendant terrific job brought in a lot of money to build this clinic it was the crown jewel of the curia campus they got a lot of attention he had just been the purine of the year he was very complex and very successful and very hard working he has outlived that he chose was legal gambling he didn't use the university's money to gamble he didn't he didn't you know not to lose his that you'll hear them talk about years but most of the papers that they claim he had errors after he left they never they never followed through to correct and they never took action against a single other person they had people fight yeah i made a mistake i i used to with the same slide on accident i sure used to know i had a different site to use but i made a mistake in compiling and that was all the evidence that was presented to the university they never took he also he gets all that money that he brought in state at the university but he left and then it was under the control of his supervisor so with the state of mind on the march twenty first twenty thirteen meeting he was called in and for the first time told that he was but they were going to they actually told they were going to terminate his employment and monday that was his testimony it was a he was thursday meeting and they took they told me you couldn't go back to the campus anymore he couldn't access the property couldn't do any of that even though as a tenured professor he had a right to have hearings that testimony was usually takes two honestly two to three years to get through but they told him they were going to basically by pass all that they would announce the allegations against him that that you know were fraudulent so they presented evidence what they tried with they did was a trial they presented evidence of this gambling he never gambled more than he earned in fact his worst year of gambling he earned three hundred thousand dollars more than he gambled he was i think the fourth highest paid person at the university of illinois he made like what do you know hundred thousand dollars a year well so  maybe yes so maybe his worst year he he i think one year and honestly he had he had a very high gambit of six hundred thousand and access or more a year because i think so i can't he was between seven and eight hundred thousand you think so he always had way more money than he ever gambled on and some years he won some years he let you know it was it was put in his worst year with a loss he earned way more so it was like he was in need of money but in any event they presented this evidence which was never known to the universities all these records and everything at the time they had that march twenty first meeting we wanted to present evidence of information that he had as well and they prohibited us from from from bringing that evidence in so only only the state of oh dress the three issues that counsel spoke about relating to first of all the santoro issue there was no in terms of dr santoro's so called impeachment testimony came out of the dean's committee and that the prompted her to take action we would like to call dr santoro and the court asks as appropriate what are you saying that dr santorum is going to dispute with d mismeasure he's going to dispute that he had identified any problems with dr ro and that the only problems he identified were problems with factor gandhi so she's using that to try to explain why she took the in fact if you dig through the records and look at his deposition testimony referred to in our briefs you will see dr santoro saying i do not remember what i said to dr rush so where is the impeachment here he cannot contradict what he does not remember so this claim that there is going to be impeachment by dr sent or it doesn't exist it is based on nothing that now in terms of the jury instructions what is what the problem with her the claim on the jury instructions is that a female's to consider the jury instructions are to be looked at as a whole so if you the jury instructions are listed in the record starting at page one twenty and you don't just see the one jury instructions standing alone you see a number of jury instructions i'm sorry one o eight is where the argument goes i apologize the actual jury instruction starts at that hour one seventy four and you see the judge explaining that to succeed on the claim you must prove by preponderance of the evidence that dr russian doctor aides are knowingly deprive dr rao of a protected property interests to they did so by either constructively discharging him or poor thing him to resign and they failed to prevent him provide him due process then if you find that the plaintiff has proved this by a preponderance of the evidence then you must find for the plaintiffs however if you find the plaintiff did not prove this b knowingly deprive another of his right to due process when he or she first is personally involved in the conduct that the plaintiff complains about or when he or she sets in motion a series of events that he or she knew recently should have known would cause others to deprive the plaintiff of his right due process and then here comes the blind eye instruction right after that on page one seventy six record one seventy six a defendant can be personally involved if he or she knows about the conduct and silicates it approves it condones it or turns a blind eye to the conduct for fear of what he or she might see there is a blind eye and structure right there right in the group of explaining what due process is the jury was instructed about this the jury is not stupid in the jury can hear all the instructions and as this court has ruled we must look at all of the instructions not pull out for the one instruction and and by the way there was no offer made by the plaintiff to include a blind eye and each the home that's never offered what they wanted to do was make it into a passive voice so apparently anyone walking across the university of illinois campus who might have made a complaint then and then it turned into various investigations which resulted in the terminations would somehow be held liable the way that they want this this to due process explained is completely contrary to the law as we set forth in our priests as well as this court's own pattern jury instruction seven o two which talks about personal involvement and what the judge as you see her talk explain herself at one twenty they had what she was struggling with that's what she was trying to explain and she wanted to make it very clear to the jury that there had to be personal involvement but they could set a series of events in process that they recently thought might result in harm and you could find from that and they were the jury was told that and the jury found there was no it's not no such harm in terms of the state of mind evidence not mentioned in the notice of appeal anywhere state of mind does not appear at all  terms of secondly but even if this court forgets that the the state of mind evidence is not preserved at all in indeed in his initial brief dr rao claims he was denied an opportunity present to present evidence at the trial the very subject that defendant introduce into into evidence in the first place rouse state of mind when faced with fact the thing that and then he was going to put all this evidence and of all these people that everything the gun did what and they had employee was a leave aside the fact that it's not really meant was the case scholer state of mind so i'm not even sure which state of mind we're actually talking about your honor it's what they really wanted to do here was it mitt character evidence in violation that he had a bad reputation and that he had dishonesty in a general bad character and then if you look at the reply page eleven it says the issue before the court is whether dr ro would be permitted to introduce evidence f numerous members of his lab and other university members confirming that dr gandhi had a reputation for being dishonest divisive and having a poor work ethic that's what they really wanted to do dr gandhi was the list of lower here and the purpose of this evidence was to tracks of the whistleblower this court cannot own that or prove it let me say one last thing  the the court found in summary judgment that what you know this case was all about was in was for all casinos ethar he resigned his employment there in this time peters came out in the from the lab that doctoral supervise while rao was demanding chashme payments from his subordinates presum to investigations after after dr rush determined that there wasn't enough there or that she had to go forward that and that the deans committee determined this deans committee she got together determine that there was enough there for her to go forward to the university that's what she did and the university took it from there to investigations one by case scholer on ethics and a second investigation and research integrity the judge dismissed basically all of the plaintiff's claims as to research integrity making these you know dr santoro's testimony about research integrity completely irrelevant following year case schiller told dr rao of what the results of that lengthy investigation was and the results were is that they found that dr rao had taken over fifteen thousand dollars  salary which was funded in part by federal grants that were not taken away from the toronto because the federal government determined who would get those grants and that there was there was evidence submitted in the record that that is exactly what the university did they asked the government who what should we do with these and they determined whether they would state with the university with other researchers or elsewhere oh it's money how much would you know the amount of grants he brought in this guy or get him to resign they had no motivation and this is supervisor dr rush there were thousands of dollars worth of brandt's that he was responsible for they did not go into this whole thing with malice at all they hired investigators crime white collar crime the tourney's went and did a months long investigation and came to the conclusion that he was taking money from the people who work for him and that he wors when they asked him how many papers you think are at issue he said zero three one at the time that he said that he used there were many more because he had his land looking at the papers he had evidence of of them looking at the papers in terms of the computer and he told his lamp destroy the evidence so that's what dr wrote it and that's why the university asked for his resignation and that's why he gave it he knew what would know there were no results and in fact dr ratner when he did the research misconduct investigation discovered that that no other paper had ever cited anything coming out so whatever they were doing has never been used again so that's why my answer to you respectfully is i don't know and my other answer would be probably nothing start start with the last point on the end i age doesn't give millions of dollars and we're talking about millions of dollars here to researchers who do nothing dr rao lab published over one hundred papers they were all published in peer reviewed journals which means layers of people three people that were selected reviewed them carefully they were and not one of them i'm sorry one paper of all of them was was ever  think withdrawn and that was the paper that dr rao had learned about preceding all of these issues and he was a part of withdrawing that he was a part of notifying the journal and taking action and that every other paper not one of them was ever withdrawn and i each gave back to raul he was one of the top researchers in the country in terms of being able to bring in and i federal funds for brain cancer research and that's the testimony at the trial nobody questioned his talent and nobody i've never heard that testimony before that nobody ever quoted or cited to his papers and the offer proof issue when you say i want to call a they have the same statements by dr santoro and in their own report it says dr santoro told dr rush about dr gandhi's misconduct intentional misconduct and that dr rao didn't know about it so it was obviously to impeach dr rush and offer a proof was made twice at the at the trial and that's in addition to his his deposition transcript being provided to the court on summary judgment which was ruled on three weeks earlier so the that we're raising now that it wasn't clear that the not the definition of knowingly which allows for blind condoning approval we raised it and it's referenced in the brief we raised it before trial during trial repeatedly and said it's just not clear it should be clear so the jury knows that each of those elements the knowingly definition applies repeatedly rejected repeatedly by the trial court she chose just to have it apply to one element not sure why with regard to the state of mind evidence notice of appeal number four addresses that issue but it was obviously fully fully briefed during the trial when this evidence was coming in and this is found it back at three twenty eight page one thirty nine we we we said we want our client we want dr rao to be able to testify that he wasn't worried about a hearing he wanted  hearing because he knew he could show that he was being unfairly targeted and they were handling they handle his his case like no other case and some of the things that we researchers explaining that what they thought were errors weren't errors they didn't look at the raw data you can't look at images in a scientific paper like these in tell whether there's an error or not with the naked eye dr grabner emitted that he said it was from the dean special committee the dean special committee member said i've never seen it before and it resulted in expanding that research inquiry from five papers to eighteen papers and they never told dr all that they were expanding it although they were required to do so under their own process and it goes on and a lot of those allegations also supported the discrimination because we had evidence of other people outside of that his national origin who weren't indian that were allowed to provide information that were treated in a different manner so we appreciate greatly appreciate your time and and thank you very much again saying so major thank goodness 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