have accomplished a hard job with a complicated balancing test that this is that we provide absolute immunity to prosecutors we want them to make their best decisions to exercise their professional judgment without the threat of litigation or you there's there's a judgment that prosecutors have to make but that the nature of that decision and the difficulty of that decision does not change after trial just because has a conviction has been secured does not mean that new evidence and new information is not a rising about the conviction and about the legitimacy of that conviction in fact in a case where there's a gang investigation or where it's a gang related homicide such as this one a team of police detective investigating related crimes some witnesses who testified in one case are being investigated for other things there's new information that comes to the floor all the time and often after conviction is when the rumor mill really  the prosecutor is conducting assumption of an investigation then the prosecutor is not absolutely immune and that is not my argument but in this case butterworth was undoubtedly not conducting an investigation or what was he doing he was preparing for a jury and material and i have to make that that doesn't change regardless of whether a conviction is final or not and in fact if there had been no appeal going on at all let's say that goss appeals were completely exhausted his conviction was final for all purposes then there would have been no what tourney involved with this case no attorney involved with preparing for a judicial proceeding related to his case under god reasoning in that case there is no one with a duty an order that he didn't mean she did your honor and i believe that that was there yes and in any event regardless of whether butterworth presented the claim properly below this court absolutely has discretion to reach a pure question of law and in the fry known at the time given the limited time today your honour's i'd like to focus on one of those elements and that's the intent element which is the overarching element for all the alledged evidence that was not pr trial court found that in dealing with intent did not actually state what the standard was but referenced daniels it is unclear but then found that there were factual disputes and denied there the issue of intent and said that was for the jury however in doing so she ignored clear precedent from both the ninth circuit and other circuits in particular the issue in the ninth circuit is looked at by cunningham in that case the night found violation when a police officer supposedly suppresses evidence and the the law as stated both in daniels that address the issue that for qualified immunity and looking at intent you must find something more than negligence then expanded by the court in youngblood the supreme court which found that where evidence was not gathered the court must look to the intent required and found in that case in a criminal context that bad faith is required the ninth circuit applied that brady violation or honors but gene versus collins in the force the circuit applied youngblood twenty three brady case finding that bad faith this required to show the intent that's required for constitutional violation but there's a reason why you bad faith and applied it to a one thousand nine hundred three case that involved failure to disclose evidence that has been gathered in your honor the issue of whether there's a difference what you're if we start a standard that says if you don't gather evidence you then have to show bad fa to defeat qualified immunity but if you gather the evidence if you show the good faith and investigating and gathering the evidence then if it's not produced then the standard is different that doesn't make sense how does that square though with with the idea that we look at the exactly what you're saying it's that you have to look at motive you have to look beyond the just the allegations you have the plaintiffs in that had a duty to present evidence regarding the motive so in that in the sense of a due process violation we the subjective standard because you look at due process and you say you can't accidentally deny somebody due process and find that person liable under one thousand nine hundred three context is different than a brady violation so you have to look at intent you have to look at motive daniel stands for that proposition you can't just have negligence you have to have something more in this case there is no facts that support anything other than negligence if you take the facts as jefferson says in the light most favorable to the plaintiff's material facts they have produced no evidence to show anything other than negligence no motive evidence whatsoever back up or men and women are your proof as to what an investigation police officers constitutional obligation news under brady under brady as a member of the prosecution team the officer is to gather the evidence that supports what they believe is the criminal investigation  that's how officers are trained to comply to break i don't care how they're clear what i want to know is who what your position is of their constitutional obligation that brady defines that the constitutional requirements to trying to find the obligation of a police officer three and i'm asking you right they define it generally to be to turn over exculpatory evidence that standard cannot be higher for a police officer and in fact because the gatekeeper is the district attorney that's where it lies so the police turn over their entire file and it is up to the district attorney because as a member of the prosecuting team that does not make the decision to turn over the evidence to the other side the safest route is to turn over the entire file they do not communicate directly with each other all thirty something here if you can turn over he's made a violation are very obligation as far as i can tell if you look at daniels if you look at cunningham if you look at this case authority it says that there's a difference between brady and when it's applied to nine hundred eighty three for civil liability against individual officers they have to knowingly fail had focused on two separate suspects tennis and golf correct within a month of that chante smith call sanders and tells him she was at the scene of the murder tennis and golf were not and someone else actually killed chan right know what she says in that in that conversation on the phone is that she is an informant she has heard on the street and she does not name tennis or golf as being there are not she names people that she believes she's heard were present it's only two years after the conviction that she comes forward finally and says i was actually there that's after conviction after appeals have been filed after the required confession in that telephone conversation all she is i heard on the street there were certain people that might have been involved and that's a fair amount of some out it's got clear with respect to the prosecutor himself or herself but with respect to a police officer go over continue after the conviction becomes final on appeal of play after the conviction and the officers are acting at the pentagon the role they're acting on if they continue to investigate they have one role if they're serving at the at  you know we found this out they would be if they find out additional information they would have an investigative duties police officers running out of times was there some other point you wanted to make to us not today ok we'll give you time for  please the morning my name is elliot peters i represent john tennyson in this case as i did below and as i did on mr tennyson's he vs a case in the district court are i will be responding to the two points we just heard from counsel for sanders and hendricks and then i'll be dividing time with mr scott who represents and torn goth the argument we just heard made two points that the district court did not apply the correct legal standard with respect to qualified immunity and that the facts of this case do not satisfy the proper legal standard and we disagree with both of those points the district court did enunciate the correct legal standard and in fact did enunciate a legal standard at excerpts of record pages fifty to fifty eight culminating in the following language and i believe counsel argued to the court that the district court did not enunciate a standard here's what the court said the court concludes that to prove a section nine hundred eighty three claim based on brady against the inspectors plaintiffs must establish only that they deliberately withheld exculpatory evidence from butterworth that was the legal standard applied by the district court now it is also our argument that based on the facts of this case mr summary judgment motion and qualified immunity the legal inferences have to be drawn in the light most favorable to the plaintiff here the non moving party counsel said to this court that no facts support a finding of intent or anything greater than negligence in this case and the record does not support that statement the there are three issues as to which the district court ruled that plaintiff tennis and can go to  suppression and the failure to disclose a confession of her card which we've heard about this morning to the failure to disclose a secret witness program memo by which reward money was put in place for use in this case but when it was put in place your honor it was sought it was approved and there's a memo in the record that it was put in place in fact there's a handwritten note saying the reward is in place it was not turned over to the district attorney it was not turned over to the defense a cash reward available to witnesses in this case was not known by tennyson's counsel at the time of trial and the third item is the failure to provide information smith gave the inspectors about that levinsky ricard was really the killer that the chase started at a seven eleven store which the geography of the chase becomes important in this case but the chase starting at the seven eleven store to the east of the site of the murder was completely contrary to the state's theory of trial that the chase started up on a hill to the west of the site of the or they they did not turn over that information in fact in two thousand and five while litigating this case notes surfaced from sanders that show that said seven eleven bay shore boulevard is where the chase started and that's in the record of this case i can give the court record citation i want to talk for a version of that tape the actual cassette that lucas gave to them has never materialized it's a fair inference on this record that it was destroyed because the only version of that tape is the one that lewis kept and then he gave it to barter with seven months later and sanders in response to a new trial motion that was pending then put in a declaration in the court which said this confession of a card is completely uncorroborated but he knew that sean takes method corroborated it shop a smith and told him months before record is the killer the chase started at seven eleven he put in this declaration which also said again members in my experience frequently confess to crimes that they didn't commit to get other people lost and in discovery in this case it turns out that neither hendricks nor sanders can name a single time that that ever happened so the conduct in the intent of these officers are ample facts with respect to the record confession to justify a trial in this case with respect to the secret witness program money and the contingency fund the money there were two sources of cash there was twenty five hundred dollars available from the secret witness program and there was also documentation which just surfaced during a b s case about the police the inspectors actually getting one thousand two hundred fifty dollars in cash from a contingency fund program of the police that happened a week after they submitted the secret witness the nature of the secret witness program for which the city under mon el is still held in this case but the nature of that program makes it difficult if not impossible to prove that someone actually got money but we're entitled to have a trial in this case on that on that issue particularly because there is a tape recording another tape recording the original of which mysteriously vanished and only a copy appeared in discovery in this case where when enhanced an audio expert that we employed was able to discern the words if you get to the effect of if you get that reward in a conversation on the telephone between hendricks and one of the governments i mean what this is a young woman they miss you know if i will do so there is evidence in this record about the offering of money the offering of reward money and for some inexplicable reason the prosecutor didn't know anything about the reward the secret witness program any of this being in place when did butterworth learn of the record confessions as far as you know where he learned of it with this event in may of ninety one it was in may of ninety one and it was on the second to last day of the new trial motion which had been going on for several say is there any evidence that butterworth knew about the record confession prior to that time no how did you know how did he come to learn he was involved in a new trial motion in the tennessee case in tennessee and independently and his lawyer jeff a dodgy head and learned that they believe that required might have been the killer and they had gotten information and they tried to place before the court a sort of put it confession with a man whose identity was unclear but it was ricardo they were trying to argue to the court that record was really the killer but they didn't have the confessions butterworth goes to the cafeteria in the hall of justice at lunch time on like the fifth day of this hearing and he conversation to that effect i'm not purporting to quote it but this is they have a casual conversation waterworks learns about the confession lois brings him his copy of the cassette the one he gave to sanderson hendrix never materialized sanders was sitting in with butterworth during the hearing on the new trial motion and then they opposed it said listen it's admission in the new trial proceeding and sanders puts in the declaration that i've described as it's totally uncorroborated which is of course false because it was corroborated by a lot of evidence in this truck drove backwards all of that is completely consistent with a recording session and completely inconsistent with the theory that they offer that convicted john tennis in a trial which didn't involve the seven eleven didn't involve back or driving down the street office eventually was also assigned to represent ricard tennis and lost his lawyer jeff a doxie who was an excellent lawyer who'd been with the case all along a doxie had to withdraw because of a conflict and then they went through with  this probably inadmissible information about how ricard is the killer in order to get a new trial and sanders is sitting there in the courtroom having received that tape recorded confession during trial post conviction but i'm entitled to absolute immunity because i'm always a prosecutor so on one hand they're arguing the duty does exist but they're entitle absolute immunity on the other hand they're making the argument well the can help me clear this one little thing that i may be a little bit fogged up about but apparently there is absolutely no evidence that prior to me seventeen of ninety one butterworth didn't know about the regard confession right that's correct and the day he learned about it he informed the court and tennyson's counsel during a court proceeding right because he was expelled he also knew that months earlier that have just thought he pursued and i take it the record also is either silent or equally clear that butterworth did not provide the record confession to god for coughs counsel correct or the attorney general's office most importantly right that's correct is that she incorrect well your honor in she wants to destroy yes or no well in the notice he moved forward put in the body of the pleading he doesn't talk about it resolved so i would welcome the court to address the qualified immunity which mr scott i have a problem with the way the issues have been sort of divided up between call fired me an absolute immunity with suppose they guard him could have been could be made that he was then acting more as an investigator and less as a prosecutor but particularly with respect to tennis and he learned post conviction if a prosecutor is acting intentionally going out and acting as an investigator you get qualified immunity but if you're just sitting in your office not actively investigating and somebody calls you on the phone and says oh by the way you know i have d n a evidence to clear somebody but the reason they call and that's because they know he's the prosecuting prosecute that case yes and they're calling him in this capacity as a prosecutor of prosecutorial has many functions you can you can act as a prosecutor you can ask act as an investigator you can ask action in ministry to function and all the cases recognize all of these functions and the burden is on the prosecutor when asserting absolute immunity to demonstrate that in the particular case at issue that he's acting in a prosecutorial function the presumption is against that i clear that you see what the problem is could be more fundamental too to the whole idea of brady thank you everyone recognizes that post conviction there for a number of reasons from a number of different sources where there is d n a information whether it's some gang member rolled over whenever a prosecutor now whether it's a day after the conviction a year or ten years later becomes aware of it's exculpatory information i guess it gets down to the point of whether the same question is the loss of the conviction or that make in terms of your analysis of that the ready to to disclose post convention on but let's assume for the sake of our you've got a brady duty post conviction and here you have the only difference is that he's no longer on the case and it's still pending has what public policy purpose is served by saying that's a functional difference that he's no longer acting as  not necessarily all three doesn't have the duty then what it is you know liability you weren't functioning as a prosecutor and any other capacity whether it's investigative administrative whatever if you are acting as a prosecutor you are not entitled absolute immunity you aren't titled qualified immunity and nobody  says he can't raise the defense of qualified immunity and nobody says he can't go to trial and defend himself there's policy reasons why prosecutors have absolute immunity because there's a lot of judgment calls that are made during a prosecution and we don't want to be second guessing judgment calls of prosecutors make during the prosecution of a case that includes decisions about brady not post conviction what you're talking about during the the prosecutor means on the case absolute immunity attaches see so that's so that's the conundrum of this case first of all there's a pending appeal which he arguably i suppose could say he was involved because he was you know one could say he was made to try demonstrating coffee together which they didn't ask for and they have their own cases says their own lawyers just to have a rule that's fashion that says well if we're if there's a joint prosecution we're she needs time but the point i want to raise to the court is that the court at the new trial motion to mr tennison fully considered to take although it was provided towards the end of the hearing it was actually a month later that the court actually ruled in gay parties a chance brief the issue was aware of goss confessed i'm sorry require confession to the police when it happened even before he got to take also mr goss testified in this case that he knew about the required confession even before he was arrested he knew about the seven assume we were talking about quote the record confessional we're talking about what was given to the to law enforcement it of some straight talk it goes to it goes to the issue of whether it was material or not because he was aware that mr ricard had said he committed the murder and that's but that's a factual background on the on the secret witness information there was no one who testified that that money was offered to them or that they received it and moreover when he says that wasn't turned over to the prosecutor it actually was found in the file that was a to the prosecutor as was the shontayne note so this information was put in the file turned over to the prosecutor and that's what happened the required tape it was not given to mr sanders spector standers as he said he sat in the courtroom and was aware of it there is no evidence inspector sanders was ever aware of the tape any communication occurred between officer lewis inspector hendrix and the timing of that officer lewis does not remember he remembers turning in a tape slipping it under the door of the homicide division without actually get it to deliberately withheld evidence but the court didn't define what the liberal meant and then cited to daniels the supreme court case that found that negligence was not enough but he did not say what is deliberate and that's the issue before the court they say the plaintiffs want the standard to be a general intent standard because there's no dispute that negligence is inappropriate they want to general intent requirement that means if the police officer knowingly did not give a piece of evidence but didn't know it was material because they were constitutional violation there is no evidence in fact recording the record tape the district court here found that there was no evidence that either sanders or hendrix took active steps to conceal that tape that the court said that faith evidence of bad faith would be that they destroyed it the we have our if we have made a case that in fact they acted properly and we have presented the evidence of how the facts laid out and how they got the memo highly produced that they then have to come back and give evidence of intent and simply the failure to turn over the evidence is not favorable to the plaintiffs there's no evidence that their motive was that there was intent to deprive a constitutional right ok thank all of you for your arguments it's a very interesting case like suppose  stoner's it speaks to the really difficult job of the public prosecutors to keep an open mind and not focus on a single theory of the case so that