besides that he also presided over the issue of whether or not mr vander warrick whose address we never knew was in appropriately served late and whether or not the death of our expert witness on the key issues in the case  should have been allowed have been substituted he simply use just denied that without even an explanation the person that died is the identification expert the photographic identification expert that testified in the superior court hey vs corpus petition proceedings dr shomer and interesting lee enough the superior court in the hay vs corpus proceedings had a mini trial like a trial on the probable cause issue that should have been had here and said this so if you just look at what he said on the card number two is the shooter it's really miss leading that's what the sapir your court judge wapner said about the positive identification by change ins who is the key witness in this case relied upon by the district court in a summary judgment proceeding with no trial whatsoever and a summary you argue that the district court as you're arguing now didn't consider the entire record and you specifically point to the court's habeas finding and your experts testimony but what can you tell me what specific facts in that evidence should the district court have consider yes if you look at the card that was shown for example attached to the search warrant affidavit which was attached here and into the into evidence  sixty dash five which of the search warrant affidavit attachment for i believe was and five let me just make sure attachment five was jenkins photo identification reports and the only thing that was shown to the judge who issued t search warrant was the was the card which stated the guy on card east slot two is the shooter there was no mention of the tape being lost the twenty minutes of conversation that were had the long time that was had about the thinking process the notes by detective vander whore who was there who conflicted with detective when he said at first and i can't i don't have the exact words in front of the words the effect of i'm thinking about this it kind of looks like the guy that was all excluded from the arrest warrant and from everyone else in this case and so the arrest was issued without the magistrate or the judge having full and complete information with regards to how the identification was tainted so not only was that way made chink ins prior to that time had never identified me even though media was in a prior identification procedure card lineup shown to jenkins he said that's not the guy that wasn't shown to anybody either now this is a identification case the spirit court correctly had the trial in the superior court talked about the difficulties with identifications in this evolutionary process that we live in in the united states where we learn more and more psychology about identification procedures as we go that's why the sexpert witness on those issues is critical because that someone that actually has knowledge of these issues completely ignores trial judg case what about the specific tracks going to the probable cause here and that's in dispute i was trying to figure from your briefs find her the facts that you think are in dispute can you give  me a list of the facts that you think are in dispute regarding the probable cause yes i can try my best although i think i really stated them best in our original brief to the court that pages use documents sixty seven and that's pages seven to i think fourteen and i have a lot of fifteen and i have a lot here to talk about unfortunately when i have enough time i wish i had more time and i understand the court's dilemma with regard to that but if you look at the court's order below the court says there are five reasons why i don't find probable cause ok so that's on page twenty it's a little fuzzy but it's on page twenty two i think of the transcripts if i'm not mistaken and he says first defendants multiple defendants identify multiple basis to support their belief that probable cause existed number one eyewitness remar positive identification of the plate of as the shooter now if you look at the transcript from the court at the superior court proceedings there is a lot of problems with that that the judge identified and if you read my also our opening brief or opposing brief down below we also saw how they perceived what happened and talked about that and the record is clear that even detective vander horak when i took his deposition stated a tentative identification is insufficient for probable cause and this is the most experienced attempted that they have in this case he's retired he's been doing this for a long time only was a brand new guy he didn't have any training whatsoever the only training that he had if you look at his deposition tranter excerpts which were attached to the expert on the issue of identification was he read the back of the card and that gave him the instructions on how to do it well respectfully the tentative identification is nothing so then we go to number three the fact that plaintiff was near the location of the shooting on october second and october third two thousand and one so are a million other people in that long beach area how does that establish or mean anything regarding probable cause and then he has two more reasons that again mean nothing the fact that plaintiff was affiliated with the two hundred fourth street gang that's a very sad thing unfortunately in our society now days many young men or boys are led astray but simply because you're a gang member does not mean that you are a murder it does not mean that you committed a murder on this particular day so that respectfully has nothing to do with probable cause it should be irrelevant there's thousands of gang members unfortunately maybe even hundreds of thousands in the los angeles area does that mean that there is probable cause that they committed a murder and then number five the fact that played it was arrested in may two thousand and one near the shooting location for assault with a deadly weapon with a firearm against now african american victim well i was never convicted nothing happened to that that was the final thing and just because it was arrested months before at some other at some location near this shooting arrested not convicted is that problem now for probable cause those are the only things n goes down about shame kins testimony being misleading big because that's what the court at the superior court found then the whole of the defendant's case goes down because that was the evidence that was used to support the arrest warrant to support the d a s decision to support everyone else so they can't rely on advice of counsel which is really what they're trying to do there's no evidence of that there's no d n a ever submitted a a declaration  no evidence whatsoever of that and if you look at the deposition excerpts from vanderhorst and usually in our case they don't even remember what was talked about that with the d a they don't remember if the d a reviewed the papers that were given the da in front of him they don't know what was reviewed they don't remember what they gave the d a they don't remember much they don't have a special murder book that they gave me d n a because all i think was vanderhorst said he didn't recall what they were given or someone said it was a stack of papers if you want to have the time maybe wall counsels talk about to find the exact page that was on but it's in our attachment to our opposition so that along with beef the whole slew of factors relating to the exclusion of our expert only the fact that we had our own expert lieutenant strong who testified in detail with detailed detailed declaration that wasn't objected to that was admitted and i think there's a new case it just came down a little while ago cobb in the ninth circuit that said because it seems like the state haiti is court didn't find that there was no probable cause to arrest or that there was no problem cause for his prosecution or that the line of procedures were unconstitutional so i'm just trying to figure out are you saying that the factual conclusions that the state court made are controlling here well this is what i'm saying i don't believe and i agree with your honor i don't necessarily believe that it's issue preclusion because we have the additional witness came and tol the new much later years later that the start of the hate is corpus proceeding going i can't say that but i can honestly say this this is a summary judgment case you've got to look at both evidence evidence on both sides so while it may not be an issue preclusion issue it's definitely evidence that the court below has to consider and that's what justifies a triable issue of fact it doesn't have to be an issue preclusion it's something that however the court is duty bound to consider because there was an actual trial on the identified bench would you argued was it was and i'm stepping back a little bit i'm saying at the very least because i didn't only argue that all sorry that was relevant for a bunch of for the fact that it was evidence so at the very least i would suggest that that's evidence to establishing a tribal issue because now whether it's conclusory or not that's above my pay grade to make that decision and to argue that that would not be fair to say that because i can't really honestly in my own mind as a practicing lawyer for a long time say that but i can say this that when a court's dealing with a summary judgment decision the court all of us are duty bound to put the evidence from the defense on one side and see what evidence on the other side exists and if there is no evidence then you grant summary judgment if there's a very little evidence maybe grant summary judgment but in this case there is a lot of conflicting evidence and to be honest with you we have a difficult time i think one of the things that happens in these cases and cases are removed from the supreme court you sometimes end up in places that the defense favors this is the reality of the situation why so many cases are removed from disappearing court of los angeles county and in this case i don't want to insult any district court judge so i won't but i don't think that these rulings here were anywhere close to being here i've never had a case where an expert dies and you don't get a chance to get someone else that's pretty wild pretty trying to figure out why yes well would be because it only be two years in the data you answered under california law so the judge in that order where he found that there was no good cause said will print plaintiff won't be prejudiced and i don't understand how the judge could make that finding that plaintiff would not be prejudiced but that's the language they use plaintiff will not be prejudiced if vanderhorst is dismissed because you still got only in the city but we all know the city is a completely different entity and defend it as it is only and so you know what are we supposed to do with that do you want to reserve the balance of your time i would love to if that's ok with your honor some lesser honors of course have more questions which i'm happy to address any questions in this case i would ask the potential of the court consider sending us back if the court is kind enough to do so somewhere else because in these rules negates the probable cause and negates everything that went on below and actually what counsel failed to mention but we do mention in our briefs and he may have mentioned in his briefs as well is that this was the second by an attorney at all of these criminal proceedings they actually they asked many questions about the eyewitness identifications and cross examined and they had the expert testify about all of that and th after that happened and there was a conviction and the life sentence they made a motion for new trial brought in evidence of the alibi brought in evidence of all of that argued that the photo i d s were tainted a different game officer for a murder that had happened a couple of years before and mia looked very different from how he looked at the time but how can i just i'm just trying to figure out how can you say that no reasonable jury could find probable cause was lacking here we have a state court judge who made a series of factual findings a very strongly suggests that the probable cause on the basis of the photo identifications was lacking what so why couldn't a jury find the same well i think it's because it's only in hindsight the same court made but don't we have to look at the evidence at this point in the light most favorable to the pla true and so looking at it in the light most favorable to the plaintiff and in light of that why is it fair question of material fact on that here because even if you look if you look at the if you look at the photographs in all the different lineups which we presented with our motion and i'm sorry i don't have the page so it's for all of the different for grabs but they're not unduly suggestive they're not well he's he's into the law and he like in two of the lineups he's into the line does not negate probable cause is because it didn't look the same in the six pack that the detectives created for this particular case he was a few years younger at the time of this when this case happened he was either eighteen or nineteen and the earlier photo lineups were when he were when he was fifteen or sixteen years old and so he looks very different he had a lot more hair you know he looked a lot younger and no one no one recognize went about developing their case they actually had somebody else that they were looking at and they showed six packs of a different suspect martinez who they originally thought would have been the suspect but there are questions i mean terms of i mean it seems like you're opposing counsel thinks there is a question of fact regarding a specifically the photo lima the mother that was you know problematic you don't think there was you think it was fine why wouldn't we let the jury decide this i mean and that's the only one example there's others others as well well i think the fact that there's dead that a witness is into photo lineups does not automatically make it constitutionally and  there's multiple cases we said them in our previous united states versus a man's united states versus poor two you know where in part because in the case of symonds there was no evidence to show that any of the witnesses were told who to be who they should be picking or there was a suggestive suggestive interrogation  and that the six pack was suggestive because only up one other person was of the same nationality that he was in the court that was a ninth circuit case found that that was not  i'm sorry go ahead i just i didn't see any an argument in your brief suggesting that the district court actually considered all of the evidence in the record and granting summary judgment  do you think you said that because i don't think that you said that anywhere in your brief i don't know if i would have said that i mean i did not publish it and i'm trying so if the district court i mean in the sense that he did is taken everything here you know what a meal is expert witness or the state courts findings  the hague is proceeding i mean it seems like all of that seems relevant to the probable cause determination or to whether there was a line up was permissible or unreasonably suggested and i guess one to give you an opportunity to point to the record if you think the district court did address evidence addressing those issues well i think it has rowling he does point out that he doesn't  s head or know exactly what he was thinking but i would assume by because he picked out those things that he did look at the record and did find it went through the analysis and found that there was not a evidence that there were or there would have been any evidence of the detectives were like well don't you think that it's over there that that was you know one just sort of leading the witnesses along and there was not there's no evidence of any of that  about detective bender horak being dismissed from the los suit i think what was that with prejudice i believe so i don't know i'm sorry off the top of my head i didn't look at that when i was focused on that aspect but i guess when you made the motion had he already been certain i guess he had so what happened was he had already been we had agreed to accept service for him by then but that was after they filed the lawsuit in august and we agreed to accept service for him the following july so that's eleven months later and they still didn't send us a summons or you know the new flexibility about dismissal or ordering that the party be served in a certain time and i guess here he had already been served by the time the motion was filed is that right probably because i think i think what they did was they served they accepted service on his behalf and then filed the motion but as social rules for de five says an agreement to waive service does not waive  objection to personal jurisdiction or to venue so do you agree with that nor does it need to show severe prejudice to excuse the untiring service he just needs to show good cause i think he needs to show both a need to he needs to show good cause and prejudice under the case law if you look at we versus hawaii townsend's versus county of contra costa and it good causes no excusable so if we let me just say if we respectfully if we if we disagree if i disagree if the district court applied the wrong standard do we need to i'm sorry say i did if the district court of i've if i find the district applied the wrong standard would that require refers reversal i don't think so in the sky tell me why because there's no there's no good cause it's he waited basically a year vanderhorst name probably a little more often than i did as opposed to saying but i mean most of the cases it's they were working in tandem together so it's not like one person did one thing and somebody in the other one did a different thing so you can sort of separate it out so that you'll see somebody violated something or somebody didn't violate something i mean they were working together on this case so they have they have the defendant they have the city as well and actually by the way we we've  before your time is up because you just have a few seconds here and i did want to ask you also about the brady the alleged brady violation and do you agree with opposing counsel that evidence that he described was not discussed was not disclosed at trial i'm not asking you whether you agree that it was brady you know material but rather just a i just want know factually whether or not it was discussed everything was disclosed t if you look in the front of the of the detectives so you disagree with counsel that those items were not disclose correct because everything they they had they had all the photo i d s they had the quality of the t v s they had all the tape recording the tape recorded most all the interviews with tape recorded and there was a tape recording log that listed you know interview of jim all from our jenkins tape number one two three four five or whatever on whatever tape and so all of those were listed in clues including the you know the miss the garbled tape  the second tape everybody's tape recordings jenkins hightower's everybody's relisted they also in in many instances in their chronological log that detailed everything that they did in the investigation  they they listed the tape numbers of the key witnesses in that as well and they presented all of this to the district attorney the fact that you know twelve or thirteen years later they don't remember what they in a deposition whether they did or they didn't you know it's not clear we're talking and say had access to at that position and whether they can look at the chrono log and see whether they gave everything to the you know what the correct answer would have been but they did in total to get a substitute expert well we did not oppose the motion down below but i think in terms of they were prejudiced in this case because the expert that they had in the testimony about the you know how about why i witness identification is unreliable and i think that just goes back to steve's strong stuff gratian actually we did file objections to it doesn't look like the court ruled on them because steve strong step laurie should he says we violated all these different procedures but he doesn't tie them to single l a p d procedural law post you know objections specifically but maybe that's i mean and again i can't get him to judge rules head but maybe that's part of the reason why he granted the motion to begin with because maybe maybe he looked at the declaration and didn't think it was admissible or didn't find it helpful or we don't know one way or another we don't know but i mean but the fact that but i think the fact that you know trial was proceeding and all of that until you got to the heaviest proceeding and kevin tell you know basically almost drops out of the sky twelve twelve thirteen years later whatever it is and says i was there i know both of them i know it wasn't me i know it was the other guy and so that at that point is and it's only at that point that the court that the trial court goes back who would who had denied an earlier he be assumed to not an earlier motion for a new trial says look as a trial judge just practically everybody knows that i witness testimony is unreliable so that he's sort of it's sort of the strain of twenty hindsight and that's not how you look at a probable cause the question is what did these officers know at the time that they were investigating and the information that was available to them and there's there's absolutely no evidence that they should have known about maria floors or known about the alibi because that well they knew that he sorry he claimed that he be that he wasn't at the scene but nobody would have known that he said oh somebody else did it because no one no one told them that they tried to interview the girlfriend to try to interview the girlfriend's roommate they tried to  thank you may please the court again well this alibi issue is kind of important because it was a completely identical alibi given by the lardy and media even though they were kept separated the entire time from the time of the arrest according to the officers deposition so that wasn't fully investigated either and the admissions in the depositions from vandar who work in media talk about they they didn't discuss these things with the da they don't remember discussing it they remember discussing some of the things with the da because it's twelve years later but they only remember some of them not all of them course that's a credibility issue that has to go to a jury like your honour's have suggested now there's a couple of things that are missing from counsel's argument besides the alibi  try to get through this quickly number one the district court didn't even have a hearing for us he the guy was in prison for twelve years we didn't even get an oral argument so nothing could be presented in any way number two there's no evidence whatsoever you considered anything whatsoever of our experts declarations he didn't mention anything in his decision and he basically just mirrored whatever the defense said in their motion number three on this issue of there was a prior he views corpus that was this to maria flores when she was found right after the trial and they didn't do an investigation to find anybody that knew what was going on she was found she came forward and the reason why it was denied on that ground i believe if i'm not mistaken as mr barrett was there was because she was there was an it was new evidence not beat and they didn't they should have found her before not because it didn't go to the merits so that's something important then this issue about the tape recordings well the judge commented about it being twenty minutes before jenkins finally agreed to it being mr media what they what was not discussed by counsel that was mention or brief was every testimony that was on the tape or every every question answer was on the t was completely leading if you read it it's in our brief it was not a and they agree they're not supposed to ask leading questions that's what they testified to in their deposition but it's only the part that was a racist who knows what was happened but the part that was on there was completely leading we also have this issue about missing evidence while the photo that was given to the defense attorney down below had up was a photo of mr down mr m it didn't have a scar on his face and all the witnesses worked we're talking about identification we're talking about well he had aren't this one person in the lineup he's the only one has a scar on his face that was mr mia downer actually has scars on his face as somehow that picture didn't have any scar on it that was and he was the real shooter the other thing is we asked and what why wasn't the calking spoto is given there were nine people  identified by officer malden otto who was the officer that gave them mia and downer as names gave those names saying well these might be the people nothing else was done with any of those inner individuals they said we looked gangs photo on mr media and we saw it a scar in space so that's the one person we put in the lineup he didn't put the other ones in there were possibles and there's no evidence as to why mr downer's photo did not have a scar on it or that's the issue and that's the only issue that he really found in the decision that he made but isn't a conviction conclusive evidence of well the conviction was set aside and he's actually been found in factually innocent by the hades corpus petition that was filed and thereafter by the petition for factual innocence so if your honor is correct respectfully then you could never bring a case any time there was a conviction that cannot be the law in the united states you can't bring a civil rights case thirty forty the guy spends forty years later and you can't bring a civil rights case because he was convicted originally even though they found that it was a defective conviction and set aside the conviction that wouldn't be fair or right and i'm sorry i know you're from new york and i apologize that's you know maybe something that i finally removed to federal court and their initial disclosures came out the day they came out they said i thought oh we're going to get the address for vandervoort because there's a lot of banter horrocks ok we put some of them in my declaration in opposition a lot of them i was surprised one is even a another person work in a deli p d so we were trying to serve every vandar work in town and in the meantime i put my declaration in and then they finally give us our before that they they give us the initial disclosure and they don't even give us the