issues number one of was whether mr burke concealed the existence of a person who has been has been called samaritan a person who by the way mr burka still doesn't even know who it is but is a person who turned up according to the attorney general after the district attorney's office refuse from the case after they took over the case this person whose call to america and started making statements which conduct reason that the district court arab regarding so american the reason it's clearly subject to prosecutor like munity is because it talks really can only be analyzed in terms of a prosecutor's grady duty to disclose butler while mr butler had a hung jury and the first trial and the time that the grand jury indicted the six plaintiffs in preparation for the second trial and in fact no allegation that mr palmer testified falsely about anything to do with these plaintiffs about their activities on the night of the shooting i think the allegation that during in the course of the six months that mr firth learned anything new and there may have been a few other minor points but that the whole business of the conspiracy the fact that these guys were out on the street that night and they were going to do it gang had on this other gang i was in the neighborhood those facts were developed by the police befor after the first trial i understand that my question is more specific than that when half of the first trial i do not have an exact date for the second problem it was before the second trial certainly another was during the investigation leading up to the second trial telling me that the timeline is significantly important i just want to sure understand the position and that is we so long as you have probable cause to make an arrest any interview conducted by prosecutor after probable cause other ordinary circumstances where we already know who the cast of characters are and where we're meeting with a witness for purposes of learning with what the witness is going to say and learning how to parrot case and present it to the grand oh well you know we better fix this case now and in years to hang with me even though what you've got is a prosecutor trying to fix up the case because somehow didn't go right the first time round is not the last you get some additional sixty two years dollars that functioned as an investigator in the office that he worked under the direction of the district attorney staff actually  imagine the confusion and the problems that would evolve if that prosecutor some day could be held liable for what evolved from that conversation whatever label you you were to put on or whether the that at some point before the first case was filed there came a point when there was a probable cause determination and prove there was a probable cause for me throughout the case so you're dealing with a situation very often ongoing during every case which is being heard because witnesses come forward and the defense attorney or the prosecutor has new information that he has to have  he's well publicized and important as this one was certainly want to go talk to perhaps a number of the witnesses who testified in the first case to shore things up to get ready for the next trial and i think i said mick that's the situation we're in here it doesn't rule out talking to witnesses in order to get new information no not at all not at all  that a prosecutor is a new before i think everybody will agree with holding it sculpts or have it refusing to turn something over well that's that's one way if you will of skewing or twisting the evidence that comes  and you don't like the statement so you write you write you go out to see the witness and say look i want more information than your statement previously revealed tell me and under those circumstances that too would fall under the unity if it if it were not to fall under the tree for whatever reason of work you would have a prosecutor tied to his chair and his office or her chair before people that well you know that's that was like sort of remark a moment ago there are other problems with speaking with with the witnesses you might get yourself in the bind of having to testify of peach that vary with us so there are there are clear from his record that in between the two trials that there was no investigation going on they were just keeping everyone happy and smiling everyone's thanks that you know it's not that clear is it you know i i i i think that is not  the presentation that was just made essentially was whatever a prosecutor does or whatever his investigator does no matter how outrageous or at what time is absolutely immune because we don't want them to be sued counsel did not address to you what i consider one of the important parts of the case we alleged by the way contrary to the representations we allege specifically in the complaint that mr burke early in the proceeding and before the invite then came down from the grand jury on the six defendants who are in the second trial who specifically allege that he and survived face fabricated evidence suborned perjury from  district court i don't think it's enough for you merely to allege i think you'll go to the ordinary standards of proof of summary judgment we take whatever facts you put in evidence and we construe them in your favor but we don't there's not enough merely to look cases and frankly i thought i recognized as the nature of this is the cases are going all over the place there's a significant number of cases in which even though it's technically the nominated summary judgment witnesses three hundred exhibits and who made specific explicit findings of fact that mr burt was involved in committing perjury during that hearing suborning perjury from the witness in hiding and s allegations and see if immunity applies and our judge pleasure technically as a matter of course since it was denominated summary judgment was that appropriate probably not on the other hand they're showing as to why they should be granted immunity was done in a must and a pro forma only and conclusory in the extreme they submitted i think five evidence to call for a response on the immunity issue then we we would have been put to provide a factual response which we did but the court didn't want to take judicial notice and so simply and in essence and as a reward for agreeing to commit perjury the district attorney's office specifically investigator survives and we allege in the complaint with the knowledge and connivance of bert provided women or provided a place for their witness palmer to meet with and have sexual intercourse with women on at least ten times with tracy palmer she was his wife but the district attorney's office didn't want to be confined by victorian morality they also permitted the admission to and gave a secret place to ten moved into a bathroom so they very rarely before probable cause allies as well anything the prosecutor does be considered to be anything other than investigative but of course the things that the prosecutor does after probable cause tan something that focuses on the judicial process if we agree it's a function of what the prosecutor or the investigators doing as to whether or not it's it's preparing for trial and going to back or asking it but you know and if and i could even but keep them in line so that they are available on and and the fastest car needs to do i'm not saying anyone should go to any particular extremes but i'm saying there are streams and mainly and because those extremes are exercise the fabrication of evidence by way of perjury and i wouldn't just say fabrication of evidence but fabrication of evidence by way of perjury which is supported by bribery in other words the payment of an illicit words i'm saying that no prosecutor for example if the prosecutor says to a witness you say this we know is false and i will give you a thousand dollars for saying and letters to the is to the contrary sir and we did evidence certainly at an early point in the proceedings but i would submit even at a later point in the proceedings if there is also in addition not only to the simple separation of perjury but and something that is conce testimony of homer of the tween the first and the second that there were material changes the theory of the changed and we're not just talking about one anybody thing like for example need or did he not only then can you fact of judge kennedy and he noted that between the first and the second trial there was a radical change not only in the testimony but in the factual underpinned of good can you briefly outline  changes in testimony were and the change in theory specifically there was a change in which no longer did palmer and the other witnesses focus on oh i know you've sat here all day long and i thought i noticed that i was in time i just wanted to get you back on one for me it was going to be a more interesting question and maybe something that i need to make sure that i absolutely focus on what we say is that  there is no contrary evidence in our last summary judgment that they submitted as a matter of the record before the district court but we alleged in the complaint and submitted substantial evidence in support of our allegation that after the first public trial ended in a mistrial and six jurors said he didn't shoot the gun he was not the person who shot this officer the prosecution then said oh we're going to change the theory of the case really opened the investigation but for the other half palmer would just say i want to come i need a break from the tedium of the jail they would go and pick him up and bring him into the d a s office if a woman or girlfriend was there they would turn their back  relations of course when he was in the jail the d a s office work out a special deal he could call into the secretary at the d a s office and she would place a call for him anywhere he wanted five thousand six hundred ninety dollars  first trial before the first trial there was no evidence in the record that there was sexual favors and the issue about the phone calls only as i recall from the the first trial there judge kennedy addressed this as well is that what they did they presented something to the jury that he was just doing it out of the city but the fact of the matter is that there was a secret deal that was concealed from this jury not only concerning the stacks of phone calls but also concerning the d a ultimately going in and getting the guy cut loose after the conviction on a twenty five year sentence but he said one can only imagine what secret undisclosed deals they had for the testimony in the first trial but we don't have the evidence of insult so it would not be proper for me to say what  i'm saying though is that with respect to these improper unauthorized illegal benefits that those are not investigative they may be administrative but they are beyond the scope of any immunity even  prove that and it may be some proof that it was happening that they were investigating the case and in order to keep them from that or to make him amenable to to their new story or  as as you have set forth but in another self the fact that they were a forty m sax does not mean i think we're investigating the case it may be proof that would help you prove that but it's not the end of the true summary judgment application with both parties have the opportunity to spend any evidence concerning their factual positions in the absence of the specific factual submission by the other side which i believe that they didn't however the record feels that the problem or its deferral or decision not to rule on the judicial notice issue precludes this court from considering the factual material that we submitted the transcripts of the findings in the court of appeals opinion and i would ask the court to remand it so that we may properly and make another the submission and request for the trial court to take judicial notice of various things as well as the the allegations of the complaint and if you like some cases a lot of courts have treated these absolute immunity issues whether they're technically denominated summary judgment or technically denominated probably said they really treat them as  know what i understand i understand that letting this guy do this in the d a s office to have him lying in court is something that even simple minded little me can't be can't be justify can't be immunised and is  never happened we still think that mr butler shocking officer it's just that in the second trial these guys were prosecuted for conspiracy theory that mr butler shot the officer has never changed robert never did there are some transcripts i don't know if there are enough for your purposes we will be we have the transcripts if anybody wants them just let us know and we have them at the fortunately i'm not a crowd and i don't mean it was on the record now is you know obviously we want to get thing over with and to the extent that we just go back and start the whole process over again it becomes reverting to them but there's no objection to us ruling out on appeal that you know that it was or was not proper judge had these findings supposedly found all these underscore i would judge kennedy found his number one finding with an undisclosed these things agreement i don't recall anything in judge henry about these guys didn't commit the crime these guys are innocent but there's no specific allegation of any of the sex happening on a date before he testified in the second trial i could dredged up can be found that there was sex between the two crimes well the trial is still going on we're talking i know i  a lack of supervision a very calm or at one point that much is clear whether it was anybody intending to let that happen certainly today it wouldn't happen because we have holding cells around we're not interested in policing at the v a but let me as you know disagree with the not i just want you it to you know those speeches this coming it's so the fact that there's probable cause or even an indictment or even a trial ongoing is not it is not theoretically impossible to still have an ongoing action based on the same facts which is what you we have in this case we have the original cause of action of mr butler's prosecutor in one nine hundred ninety one which is he shot officer heartless and then in one nine hundred ninety three the six gentlemen are prosecuted for conspiracy in connection with it those are really the same facts because we're not saying that but we didn't shoot officer heartless we're just saying these are guys who are liable for the conspiracy so if you're talking about brand new facts that implicate brand new people i think we're into the either and there should be at least some evidence to support that he's before a jury during the trial and i have to do that was i the summary judgment you can make an argument that in most in many cases where there's a munity you shouldn't hold people to to shift the standard because they the it's just a frustrating thing because you know we need if the normal rules apply if in this in this case there's no real logical justification for holding him to a lesser standard because one hearing and and made it in another hearing for the truth of the matter and i submit that that's exactly what the appellate wants to do with judge kennedy's report in this case and i submit that it should not be considered for any purpose by this court thank you  page declaration from mr burke and one page declaration for mistresses narrows basically saying highly conclusive terms we didn't do anything wrong we submitted to the court that we had alleged specifically in the complaint certain things and as factual support for the basis for claims we submitted to the court judge kennedy who was the referee was the former u s attorney and i guess strict then he became a superior court judge and then he was the judge at the first and second trial and he heard that he be a specific so he made specific findings of fact after a contested judicial proceeding which all parties had it was not a hard complaint to draft so if the court feels that it can take summary judgment i mean i can't take judicial notice of that there's any real issue you would ask the court for meaning and so that we can present what i consider to be a super abundance of evidence but i think and i would submit that there is no reason why the this court can't look at the reasoned determinations and decisions of an earlier court for the purpose of