he thumb or six hundred sixty to eighty one david jones versus clark county kentucky at all oral argument not to see fifteen minutes per side mr bell three for the made please the court i'm greg bells appearing this morning on behalf of the appellate david jones with the court's permission i'd like to reserve three minutes of my time for rebuttal the issue in this case is what specificity of allegations is required to be afforded a plaintiff the right to pursue discovery in support of his claims in our original complaint in this case we alleged that mr jones jones in the affidavit for the search warrant was it was indicated that he was not a suspect that nevertheless once the warrant was executed at that time he was arrested and his electronic devices were seized and have and they remained in the possession of the defendants and were not tested until he had been in jail for over a year at which time the electronic devices exonerated him and he was released from jail and the charges were dismissed soon thereafter would you say that exonerated him is that completely accurate in the sense that the forensic examination showed there was nothing on his computer but it did did it show that it could not have been deleted prior to their seizure your honor by monder standing of the the forensic analysis that was conducted by  jones as expert indicated that it wasn't on his computer in that there was no indication that anything had ever been on his computer now that there may be some very significant details there may be some weeds there but it's sufficient to say that upon that that discovery the defendants abandoned their case and the charges were dismissed and drop their case is that report in a hole in the record grand jury indictment establish probable cause we sought to amend our complaint to allege specifically not just omissions generally before the grand jury but we specified what omissions were and they and those were material that was that the defendants had seized the electronic devices which would have been the exonerating evidence and had not tested them that's like for example as you wrote in judge judge boggs in the web cases like somebody going to a grand jury and saying he's the suspect without acknowledging that there's a photograph of the suspect and it doesn't resemble him at all that's like saying somebody is a murderer but we've got the murder weapon and we haven't tested it for fingerprints when it comes to this type of electronic data and information this this new world these ip addresses are routinely hacked we allege that the defendants knew that that was certainly something that was discussed and that the conclusive evidence in their possession the electronic devices should have been tested judge white you remember in the h case that you wrote it's an unpublished opinion but it's the only opinion i could find that had malicious prosecution ip address they seized the in that case they seized the electronic devices they tested them forensic an fade there was no evidence there there were still some weeds as we discussed earlier but then they took it to the grand jury the grand jury returned an indictment and only then were the  in that case it became a question then of why would the jury do that under that evidence but here we're alleging unlawful arrest unlawful prosecution unlawful incarceration from the get go were alleging that in the absence of a forensic analysis of what should have been understood to be exculpatory if not exonerating awful rest from the get go i mean isn't isn't aren't there cases that say that  tracing pornography to an ip address is enough for probable cause there are cases that say that judge i disagree with and this is a case is a prime example of why it is pr because these are so routinely hacked by the perpetrators in order to hide their identity i admit there are cases out there and that may be a difficulty but as we alleged in our commit amended complaint even after mr jones has a rest this case should not have been in even brought to a grand jury without a testing of those devices so we believe we have alleged our complaint was a line   where the complaint of the plaintiffs was well my family had gave me an alibi and you didn't present that to the grand jury well that there's an issue of fact alibis can be controverted by other evidence but here judge i think we're talking about unique a uniquely exonerating type of evidence like a photograph of the offender the doesn't match the suspect like the murder weapon with fingerprints on it not those of the suspect we've got a electronic devices here that had they been tested and it this is  evidence but at least potentially and i think we certainly want to encourage our law enforcement officers to do that before they take the case of the grand jury as they did in the hoxha case so do we have information about why they do it that way why they just go to the grand jury get the indictment wait for trial the check to see if there is any evidence judge that that's that's the central question that's the first that's going to be the first thirty minutes of any deposition of defendant murray that i take in this case which is why did you take this to the grand jury without this evidence why did the judge say that you never asked for discovery i thought that was one of the reasons the judge didn't allow your amended complaint seems to read some pleas that the judge the well it's been i don't know how many months and never asked for and he you don't i don't recall that specifically there may have been a ruling by the judge that i had hadn't filed an affidavit saying that i  needed more time or needed discovery to do this case that that argument i think was was sufficiently made because in our response to the motion to dismiss nonetheless because we  motion dismissed was after our complaint and we argued on the pleadings from that point the judge even judge reeves even refused to consider the affidavit that was submitted in support of the motion well this is not a this this is not a case that turns on which we are simply complaining about the grand jury proceedings this case and again to go back to the hawks or case and how this differs the the the defendants and hawks are conducted a forensic analysis they and then they took the case to a grand jury the question then became what was it that was told to the grand jury that led them to return an indictment despite what appeared to be exhaust exculpatory evidence from the  analysis under those circumstances the court went to a ray berg analysis we're not concentrating solely on the grand jury testimony all we're doing here is  our challenge at this stage is to rebut is to overcome the presumption of probable cause that arises from the grand jury's indictment and we think we have alleged omissions a material fact that permit us at least two hundred take discovery to prove those claims and that rubber doesn't doesn't come into it because we have a much broader claim here in starting if the discovery revealed  for whatever reason that only the grand jury testimony was evil let's say then you would fail and rebore that you think you could discover some additional matters if you got to pursue them yes  terms of that the jury's indictment is a rebuttable presumption and that the the plaintiff should be permitted to to rebut it i think it's arguably a looser claim but signet significantly looser that there's a material difference between the federal the state tests that i can point to though in other words if you choose under the federal test you also lose and i'm not prepared to concede that your honor i think we've or you'd in our brief that the statement of the cases afford a more lax interpretation or afford more freedom and so we would maintain that even if the court believes we can't go forward on the federal claim we should at least be allowed to attempt to make our state claim with discovery  point in opposing counsel's argument on the rebirth case because i think the the issue in our case is has have sufficient facts been play in either the complaint or the proposed amended complaint to survive a motion to dismiss and the only facts that have been play had as roger where when it whenever there is an indictment by a grand jury that changes the that changes the calculus of the case it creates an additional hartle that must be overcome because it requires evidence in the sixth circuit or under the federal malicious prosecution claim that the defendant knowingly have knowingly presented false testimony to grand jury or have been reckless in that testimony in this case the mr jones attempted to allege facts about evidence presented in testimony to the grand jury jury or that wasn't presented to the grand jury that creates a rape or a problem because that testimony is subject to the absolute immunity and i don't know how that none of the allegations had anything to do of anything with anything that happened outside of the grand jury context isn't i mean in the discussion it may be inferential but in one sense the grab them and the real grab them and they are empathetic complaint is that you had the evidence in your hands  to show that they didn't do it and you refuse doored declined to look at it under not i might ask you in that context is it clear that they would not have been able to to get at the testim the computers themselves that is you had custody so i don't think that's clear certainly not clear in the record at all in fact they were did they finally get it  represented by counsel in that proceeding who ultimately requested the test and a year later that was diner under criminal discovery rule or do you know how they are able to do that or they just finally ask for it politely frankly i don't know in this case exactly how that occurred but also signed under the re bergen our case in sanders at least as i read them officers might do something prior to a grand jury that was so heinous that it would constitute malicious prosecution isn't that fair that's fair but not nothing like that has been alleged here everything that is allege here is about what happened in the grand jury room so you're saying that my inference just isn't in the allegations that is my inference that the evil was you had the evidence all you had to do  look at it and you refused to look at it do they not allege that they allegedly made three was not told that the evidence had not been tested so not not you're saying they don't they simply don't make the freestanding complaint that it was malicious not to look at the computer and see that there's no pornography on it i think that's accurate i think it's also important to note that i think the claim that this was like d evidence in our hands is zero as is vastly overstated as the court understands the absence of elect after forcing forensic examination the absence of electronic evidence on a device seized does not necessarily mean that the crime did not occur certainly turned out to be strong enough the three drop your client three agreed and in certain cases it might be a hurdle that the prosecution for whatever reason there's also not evidence in this record to say why exactly the prosecution decided not to proceed with the claim it was dismissed well what do we even know whether the prosecutor knew that the computers had hadn't been  i don't believe that evidence is in the record as to whether the prosecutor had that understanding or not so i mean isn't that a possible that to be developed but if it reaches you know went to the prosecutor and said ok this guy downloaded we have evidence that this was downloaded to his ip address and left but we haven't checked the computer or he says we have  it looks like this is the ip address for me so this is what happened we got this and we went over there and we took it and to your point you asked a question earlier whether you saw something in the record about discovery in the fair to conduct discovery i think that was the discussion initially the defendants of the apple e's in the case submitted an affidavit from detective murray and asked to convert this to rule fifty six motion in its opinion the district court decided could be converted to allow him to consider that affidavit that affidavit had additional information in it including that mr jones made a statement that he lived there alone is his network password protected he was there at the time that the  material was downloaded additionally the plaintiff has never made an effort mr jones has never made an effort to secure the grand jury testimony here that is available to him and i believe as this court has has noted in the past in the bigger staff case which is a six circuit case the plaintiffs failure to request and make allegations regarding what was actually testified to the grand jury can be a significant failure at the pleading stage even though it had not yet been converted to a senate summary judgment motion he should've divined that it might be and filed a fifty six f asking for more time to divined that that was going to happen i mean you would think that when you move to convert it then he might have said i need more time but how long was it between your motion and the judge's ruling many months six or eight months i believe your honor but he thinks he's facing a twelve he said your motion hasn't been granted i understand that but i think there was he understood that affidavit had been filed a request had been made and so if there is an if there was a belief that additional discovery was required to rebut or address any of those any of those facts and the requests to convertible fifty six motion and full time was available and there was have been given that that might happen  submitted to the grand jury to overcome or to satisfy the exception the six circuit that the grand jury conclusively determines the existence of probable cause in the amended complaint there was one paragraph added and that one sufficiency of pleadings problem with that allegation as you as you're well aware the complaint must allege facts sufficient to nudge the line from conceivable to plausible these allegations were stated on information and belief  which have not been sufficient to to meet that pleading requirement as a matter of law i think the darvocet pharmaceutical litigation case at seven fifty six f thirty nine seventeen held that the information will be pleadings are not sufficient across that line so there is a sufficiency of pleadings issue but beyond that even if you do consider the allegations that actually do not overcome the conclusive proof the conclusive effect of a grand jury determination of probable cause the first allegation was that the search warrant and that i acknowledge that mr jones was not a suspect the search warrant that time also mentioned that he lived in the that the ip address was associated ip address was associated with a particular location and the name of mr jones but one of the things i wanted to find in the search warrant was who lived there detective murray didn't even know at that point whether mr jones lived at that address they went in they weren't just looking for proof of residence they were looking for the devices right i think they were looking for both ok so that there were two things like if they went in and they got proof of residency and then they what they get a warrant i mean you're saying that they wanted to find who live there they are that the war is reflex some understanding that it's not cut and dry just because it was down they have evidence that it was downloaded to that i p address right sure it could be not dry for a number of reasons including that that they don't even know the yet who live who does live there i mean the first that they don't know anything about the residents of that point well they know they know that i eighty and t is sending bills and getting paid sure i don't have the name at that address but in terms of whether that person downloaded something that i understand i don't and they don't know anything yet at that point me ask you this may be too deep in the weeds computer wise but the search warrant which describes the ip address also has a phone number and a modem mac d which my understanding is that an ip address may come from different places but the mac idea he is supposed to identify a particular piece of hardware do you know anything about that in this case whether that was found on any of the computers i do not i haven't seen any indication of the whether anyone discovered anything about the mac idea address well why the why did they why did they do with that way why did the yet the evidence the hard evidence and not look at it and simply charge i mean it's like going in getting some substance in the house and charging before you test the substance and then waiting and your honor i don't really agree that it is like testing us of a substance they knew that the video had been downloaded they knew that the crime had been associated with that i that the video was not found on and that at the point that the electronic devices were tested were not found on one of those devices i don't think that indicates it's not conclusive evidence of innocence there's many explanations that could establish that the could still lead to the conclusion that that person did download those files and just for whatever reason when they were tested they weren't there or wasn't on those devices and in addition in this case the rather facts to support the problem caused determination statements that mr jones made to detective murray that were set forth in his affidavit submitted in the record here that he was the only one there yes that he was there that night that is a network ad password protected that could lead a reasonable grand jury i think and it were reasonable tech to have to the conclusion there was probable cause to believe if they did get discovery and because here we have the pleading versus summary judgment issue they did get discovery and the testimony is no when we do one of these child porn things we never test them we always go to the grand jury right away because it might disprove it and we don't want that to happen with  that give them some purchase for a malicious prosecution judge i don't think so because a lot of cases that talk about this exculpatory torrie evidence issue with grand juries i mean i think  there's really kind of two sets of cases that have been cited here there are cases where there is evidence there is clear evidence that the law enforcement officials were fabricating or knowingly lying to the grand jury to secure a probable cause determination there's another line of cases where there are facts that either are not yet known or have not yet been developed at that point in time or or maybe are known but are not believed to rise to the level of being making the known facts or the known requests that there is probable cause to be knowingly false this case is much closer to the martin v mauer case where in that case the detective did not tell the grand jury or is alleged not to have told the grand jury that there had been an eyewitness identification of the perpetrator of the burglary that didn't match the description the suspect he was pressing the grand jury this is on the line of cases where the expert the fact that e griffin on the computer and that's why we went ahead with the indictment and i was personally pretty surprised to find out fourteen months later that we didn't have the proof on the computer well that allegation is not set forth anywhere in the complaint here even on information and belief that the that the detective told anyone that that the evidence was actually on the devices to get not saying that he told them  that that that what if that was the understanding of the prosecutor based on the omission what if the practice is that you come in to my office once you have your face which includes getting the warrant looking at the computer and if there's something else going on you know you tell me again i don't i don't think that takes us into the knowing falshood realm required to overcome the conclusive presumption established by the grand jury indictment i think we're still talking about there there's  potential for exculpatory evidence there that hasn't been revealed to it or in your your case the prosecutor or than the grand jury who are terms of probable cause to terminate sort of the difference between oh there was it turns out there was someone else at the house or or you know an alternative explanation i think that's a little bit different than the hard evidence you're kind of implying that you had it but you haven't checked i think we are us assuming that the detective then both believed that in the absence of a test he doesn't have sufficient probable cause to proceed with the indictment and i don't think that that is actually true the detective might reasonably believe that even if that that device is tested and doesn't show the video on it there might be another explanation explanation for it it might there might be evidence of that that video was deleted from morse or there might be other evidence story but you can usually find that on the computer but i don't think you always can find that on the computer i fundamentally disagree with the belief that testing the device was absolutely conclusive like d n a evidence in this case i don't think it was but we do think that while it it's not to the level of d n a that the at least apparently the report said a it isn't there and b i can't find any evidence that it ever was there which is maybe perhaps intentionally is all you can do certainly relevant i mean i would agree with that but i just don't put the conclusive effect when i see my time is up drawn and i apologize for running over lessers any more questions read thank you thank you this is not all about the grand jury the original complaint that we filed said nothing about the grand jury it went to the central issue which is why when the authorities seize control possession of conclusively there's a question of whether it's conclusively exonerated and i don't know whether you can answer that and then say why is he there reporting months before he's permitted to test it i mean whoever damages i guess i'm not sure whether i ask your colleagues but i thought i did maybe i did and as to whether somebody could have gotten it earlier than that in the they didn't affirmatively say they could have but they say since he did since the lawyer got it later there was no indication he couldn't get it earlier that but that's right and we're and i'm in much the same position reasonably that lawyer the state defender whoever did it that that person was available to you yes that you could have gotten you know whatever statement he might have made the police i mean and my success as of experience in other cases a in being able to do that lawyers don't like being deposed with a subpoena that's right and so this isn't about the grand jury that the initial motivation of this case in the original complaints and nothing about the grand jury proceedings at all the one paragraph that was that was added to our amended complaint addressed the grand jury proceedings and specifically alleged a material omission this wasn't just a an allegation of an omission or unreasonable this this alleged a material was not considered a suspect or at least they said that in the affidavit accompanying the search warrant that he denied the download and that they had the evidence necessary to either prove or disprove his claim and they hadn't tested it yet ok so they i don't think they have to see the person i don't think the grand jury needs to know that the defendant deny doing i mean i can't see that that is actionable and what was your first  donna that's an issue of fact that is precisely the purpose of discovery to determine what did they know he was not a suspect or was as the district court found that just an opinion  sound right i mean the question is the totality of what you tell them so i mean i really think your only argument is that it's immaterial the one that you seem to be saying is that it's a material oh missed in not to tell the grand jury that the evidence was seized but it was not yet searched to see whether it evidence yes that is that is our that is our argument and i would tell you that that the web case illustrates just how important discovery is to that sort of thing because the proof a deuced in that case that this court ultimately held was sufficient to not only permit discovery in support of the plane as malicious prosecution claims was evidence that that was developed after the grand jury indictment that indicated that there was an issue of fact as to whether the investigating officer had lied due to the grand jury it wasn't even established first complained without the amendment that was focused on that wasn't even focused on the grand jury testimony was that sufficient that they seized the gun and didn't test it for fingerprints that they had a photograph and didn't bother to look at it and recognize that the person in the photograph didn't look anything like the suspect and so what is the constitutional by elise well your honor it's a material in the constitutional violation is that there was never probable cause for his arrest his incarceration or his prosecution undermined all the probable that's correct your honor thank you very much thank you