to focus on the fact that a j m o l was denied after the verdict we had a seventeen day trial two days of deliberation many opinions prior to the trial  denying the summary judgment so the trial court determined after the verdict and after briefing after the trial that the standard that had been set on the continuing investigation prong devereaux when the investigator is held to a standard of knowing or should have known that the suspect was innocent was almost impossible standard to meet and that the court the district court said unless we have direct evidence that someone is innocent and that would be difficult to have in a child abuse case then it's difficult for this court to imagine the district court there could be ever be sufficient evidence to show that the investigator knew or should have known that the person was there was i was a trial attorney i ended up reading three hundred and twenty quotes to the jury that i contended were fabricated and that the witnesses testified were the analysis to a much more tenable conclusion that you could have constructive knowledge from the fabrication itself so if an investigator is fabricating in this case hundreds of port asians hundreds of quotations that from that you can deduce that you have a constitutional violation without anything else well it sure  is your position i think this is correct reading astonished but i want to make sure if if someone fabricates evidence against a defendant even believing that they're guilty that's a constitutional violation yes you may have to you may have problems down farther down the road on causation of of damages but it least the constitutional violation is the fabrication of evidence you don't have as well as you knowingly fabricate the evidence you don't need any more  that i agree with the court that that is that is the only position that's consistent with the constitution with due process you cannot be saying or you can fabricate if you think the person is guilty you know because the time they are cruel time is when the fabrication takes place it's not at some retrospective point later but that's the key point the key point is at this point according to the trial judge there is a standard that's impossible to meet so you have carte blanche to me that's what actually impossible to me and it seems to me that even under the court's standard the court may or may in in corrent because once you have the testimony the alleged victims that they were not in fact victims and that they did the investigator that at the time them that supports the finding of the jury instructions that were given that the investigators should have known least right so you may be right theoretically but i'm not sure that it matters to the outcome it may not your honor because i do i think that our evidence was sufficient to establish under the standard that the defendant krauss knew that or should have known that mr spencer was innocent this this case was fabricated from the very beginning out of whole cloth there was absolutely nothing and then in addition to that this exculpatory medical records of two of the three children but third child never had an exam done two of the three children those medical records were concealed the videotape of katie spencer the defendant common had in her garage for twenty years well mr spencer languished in prison look let's assume you have ample evidence to go to the jury of fabrication and wrongdoing and if speaking only for myself i think you do cases a little strange because your client pleaded took and did alford plea but pleaded normally we look at a trial and say oh my god had the jury known this stuff what do we do that here well you have an alford plea so you don't have to admit anything you know exactly but that's important so you don't have him admitting anything but you do have him testifying to the fact that he entered the alford plea because he was presented with the fabricated police reports and he believed that he had absolutely no chance to prevail at trial plus he was broke is it possible in a case like this to move the causation meter back slightly in time and the woods there seems to be ample evidence here that to prosecutors when confront when presented with all of this evidence and not enough a third prosecutor said yes had had the prosecutor knowing that much of the evidence was fabricated his mere good argument that he never had been charged in the first place exactly because if the prop the prosecutor who actually went ahead and filed the charges had no hands on and in the case so he didn't interview any witnesses it's not like the mcsherry prosecutor he had he didn't interview anyone he didn't have the videotape because it had been removed and put in the defendant's garage and so he was relying on these fabricated reports one of the really fascinating things about the case is we presented exhibits to the jury showing them the quotations that each child remarkably had used the same language a dental corpo taishan it's so the four year old had used the same language at the five year old the four and five year old had used the same language as the nine year old and so i think it became apparent to the jury from the very beginning that there was a deliberate fabrication in the case me ask you a precise factual question is there evidence that and i know the math we have big matthew and little nephew but his nephew hanson is there any evidence that his statement was fabricated yes what's the evidence ok here's the evidence of that it's because matt hansen said he had witnessed the sexual abuse of katie and matt spencer each  night and so even the trial judge at the summary judgment stage said that that was really the key point with matt hanson that there was still evidence that his reports were fabricated in addition to all the special deals that have been offered to him with his criminal infractions and all of that which i think he i was able to impeach him in front of the jury but that's the key to the fabrication in his report he's witnessing their abuse and then of course his medical report which is concealed shows no abuse of him could you also address the district court's alternative ruling that the there was an error in the jury instructions and that the moving force  instruction didn't capture the section nine hundred eighty three toward causation principles yes because the court the trial court was very involved in the jury instructions drafting and so we all agree that the moving force instruction was the conservation and structure and for this cause of action and then it was only subsequently that the defendants in a reply brief started raising issues well maybe we should have but for  but all of those arguments are waived all of those arguments but four were made about having probable cause for the false arrest malicious prosecution false imprisonment which i dismissed so i could just take the case force has been applied to individual defendants it was in johnson versus duffy versus city of reno and i think harper versus city of l a the court is correct that the typical case where you see moving force appears to be m m l claim but it's judge settle said it's in footnote six of his may opinion you know if that wasn't the instruction he should have been using the comments are very misleading about it but it isn't more the meet me just if we could rank causation right obviously but four is the least amount of causation you require because the next level up is proximate cause and there was a proximate cause instruction in this case there was no use moving force fall on that scale is that more than proximate cause or less than proxy it's me more because because it's the moving clause case so if it is more whether or not it was correct or not it posed a higher burden if it was even correct and it should have only been a proximate cause instruction right i'm sorry but if if there is no requirement to proving moving cause in a case involving an individual then the court should have only given approximate course instruction right that would be true i think if it had only been applied to menow but it has been applied but i'm asking let's assume that it only applies to me now my point i think is that because it's the moving force it's the use of the word it's the moving force because i have to correct myself council submitted a proximate cause instruction we did not we simply had the moving force weapon strike which instruction was given yes so going back to that in the proximate cause instruction that the defendant submitted they of course put into the instruction that there could be more than one proximate cause so in our moving force instruction it was simply this is the moving force well i guess i have the same question that judge her words asks and that is if there was here i don't see what effect it could have possibly had because the argument of the defendants was essentially as i recall it there were intervening cause such as the effort point which was referred to in an earlier question and that argument was made already i mean under the existing instruction set argument was available and it was made because it it goes to either proximate cause we're moving for so i guess i don't understand what difference it makes i don't think that it does and what's fascinating about the closing argument of defense counsel is he uses moving force anonymously with intervening cause so what he tells the jury is the real moving force of this was you know the prosecutor's decision to prosecute the real moving force of this was plea the real moving force so he used it synonymously with intervening cause so i can i don't see that it makes a difference i do think what's important to stick with the argument was it was too attenuated firm the is exactly that the fabrication was just so clear and overwhelming and i think the jury i mean this was a seventeen day trial this is what we were doing they were presenting intervening causes we were arguing the fabrication caused him to enter they offered plea the jury decided credibility it heard all of these people both of the defendants had heard all of them testify and it concluded in our favor there had been a deliberate fabrication and that the defendants had been indifferent to the violation and that mr spencer who spent almost twenty years incarcerated on this case the longest in washington history so if if we were to agree with your moving force and we have to write an opinion it in this context moving force means what would we say you would say that moving some compass is cause in fact an proximate cause its legal cause and it's factual cause and it was the model you know that i mean moving forrest as really mean much of anything so that whether that means if you're right then we  never give a moving force instruction we only give a proximate cause instruction again i go back to my point that i think it didn't prejudice the other side in this case but if you say that moving force is just a combination of but for proximate then why give it at all as just sort of plucked out of a supreme court opinion right so i'm just trying to translate at it well actually i think you look at it look at the instruction that was given this week it wasn't just thrown out this is the moving force if you look at instruction twenty one it says that the jury that that the criminal charges now this is on the moving force filed against clay if were based on that evidence plaintiff suffered injury as a result of this evidence the evidence was so closely related to the deprivation of plaintiff's rights as to be the moving force the cause the ultimate injury and because defense counsel argued their whole defense was there intervening pauses i don't see i don't see the objection to the moving force i just don't see that it makes me do it it's harmless error if you should have called it proximate cause but i think it's actually stronger because i think that you know but for somebody becoming a police officer you know things may now not have happened this is i think i hire and stronger standard but regardless what difference does it make at this point the jury heard you know all of counsel's arguments about intervening causation we covered that we had such detailed instructions and then on top of it our verdict form the jury had to in the verdict for form answer i think it was seven questions and they had to go through whether or not there was deliberate fabrication the devereaux standard then they had to continue on the supervisory liability and then was the violation of plaintiff's constitutional rights to due process of law the moving force and causing the damage this was such a carefully managed case with based on trial five done all over the country this was very carefully managed the judge i think at the end of the day was concerned about i think he misinterpreted his stand it she thought it only bottle or something but i might not think yeah i misspoke judge said i'll wrestle with the parameters of devereaux a liability for over a year through dozens of motions in this case through fifteen day jury trial and in the final analysis he concluded that there was insufficient evidence for a reasonable jury to conclude the police detectives in one thousand nine hundred four would have known or should have known that the mistress i don't understand he wrestled with that and did it and were wrestling with it too the question is whether or not it matters whether they knew or should have known that mr the plaintiff in this case was innocent i think other words if is it your position that as long as the defendant is guilty the police are do not violate the constitution by fabricating evidence our position is that the court in devereaux stated that there's just i know i can rebut court state i want to know what your position is is that your position that there is no violation of the constitution if evidence is fabricated as long as the defendant is either guilty or the police believe he's guilty that's not only my position your honor but that that was also the position of the on backcourt endeavor so you think that let's say it's a bank robbery and you are pretty sure that x is guilty but he for either because you're lazy or foster parent was a complete and gauging the misconduct it wasn't a criminal case but well there may be different issues with rely with regard to supervisory liability because in my scenario it's possible that the supervisor wouldn't even have reason to know that they'd been tiriel has been fabricated but but that wasn't really the question it was the question of fabrication itself and it's your position that it does not violate due process to make up we have and let me give me give you a hypothetical that's not this case let's assume we get to trial and detective cross takes the stand and says yes i made up all this evidence i did it because i thought he was guilty and i was afraid there wasn't enough evidence to bring charges in the absence of me fabricating so that's just i know that didn't happen here your position is there's not enough to that that that case does not go to the jury because she did not believe he was innocent if there was no other evidence to suggest that there was no then a sense then yeah it shouldn't go to the jury under the devereaux standard it does not rise to a constitutional biological let me let me play out my like i find his position astonishing the detective takes the stand and says you know i heard and i believe this guy was a molester because i just looked at him and he looked like one but i didn't have any evidence so fabricated all the evidence that went in that was used at trial he was prosecuted and convicted and it later turned out he was innocent but i am not subject to liability because i truly believed he was guilty she has to believe that he's innocent in order for there to be a a cause of action divisive subject of all of that i'm miserable what that does it is operator ok you know me fair enough so let me change my hypothetical slightly one witness comes forward and says this guy's a child molester and the detective says i believe that witness but just as not to go to trial it's just not very very good so i'll make up a whole bunch of stuff to make sure he gets convicted she truly believes and there is at least some evidence of his guilt and she takes him to trial and he's convicted and no nine hundred eighty three violation even though she admits fabricating the rest of the evidence i think what you're missing  subject to believe there's a i mean i just know that i'm not taking you or your view that subjective belief is enough my question is even if you had objective reason to believe that this defendant was guilty you're telling me the constitution does not prohibit her from fabricating evidence that's your position i am telling you that objectively regardless what the detective thinks you know maybe if there's objective reason to think that he committed these crimes you're telling me the police are then free to hold up is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government that's our statement of law and ever that is the first of all there we go on and say here's how you can prove it in this case with direct evidence of application there's just aggressive interviewing so cussed and said that was the approach that you use for a circumstantial evidence devereaux there was no direct evidence correct there is just aggressive questioning of these child yes but it is true that i was the allegation and ever that you agree there is direct evidence of fabrication in this case we don't concede your honor you don't concede that the she did it but surely you must concede that when a statement is presented from a legit victim that says the victim said a b and c and the victim then takes the stand and said no i didn't i never said those things that's direct evidence how persuasive it is given ages and time is a different issue but surely that's direct evidence is it not in this case the the trial court i think correctly analyze what did the police officer know at the donmar that's what i'm asking whether there was direct evidence of fabrication in this case based on the testimony of two of the three child victims evidence of fabrication devereaux we're looking aggressive questioning and we say gee you got to show more than just aggressive questioning but you have to show more than just direct evidence of fabrication to get to a jury oh it got to the jury you the two page seven page statement that may or may not be direct evidence of fabrication but you have two people who take the stand who say i detective produced a report that said i said this and it didn't happen and it didn't wondering why i asked the question so so let's assume she said well i think he did it against matthew hansen i guess right the later victim and your opponent says no there's evidence of fabrication and that but let's assume she truly believes that he did all this stuff but there's direct evidence that she fabricated much of the case don't you get to the jury under those circumstances you can argue causation and intervening cause and everything trying to figure out what the law is ok well the law is in our eyes that there is an element you have to prove deliberate fabrication that is not the be all end all be proved but you don't win you have to let it go the next element of knowledge of innocence objective or subjective but we do have some case law suggesting that when we are looking at essentially the sufficiency of evidence to have supported the jury's verdict which is what we're looking at here that the instructions pass out of the picture and if they were wrong we don't have to just look at what the instructions said and as i have the same reading i guess  where the you know we said that the that because stanage in that case have produced evidence supporting the claim of deliberate misquoting and misrepresenting the statements of witnesses and that was sufficient to win we not only because of that but also because even the plaintiff in this case agreed well i understand that's why that's why i'm saying that our job isn't to worry about what the what the plaintiff agreed to or what the instructions were don't we have to look at the evidence at the trial against the correct legal standard regardless of the instructions to j m well you know as judge said there wasn't enough evidence to go to the jury forget how the jury was instructed for a moment don't we have to determine whether there was enough evidence to go to the jury i do think you have to determine what the amount of evidence was sufficient a grand jury maybe error with the instructions and you have arguments about that but we don't look at the instructions to figure out whether there was sufficient evidence to go to the jury do we i would agree you have to analyze whether the jury had sufficient on the evidence under the applicable law right  let's say for the moment that this sort of due process claim there is not an element of showing that the officer thought were should have known that the defendant was guilty let's let's say that that this innocent or was innocent let's say this innocence of devereaux is not an element then was the district court wrong in its j m o l so it's so if i understand your case it hinges on the question of whether the innocence prong is an element of the case the element of the deliver fabrication due process and the way we've described the rule of constitutional law of deliberate fabrication there's no requirement of showing that the police officer knew that the defendant was innocent that innocent prong is not part of our any other basis on which you can defend the j m o l i think if we must must we reverse if that were the case we would have put a lot more emphasis well but it doesn't matter what you would have done  if the innocent element is out of the picture what would your argument be in that case argument would be that there was insufficient evidence of deliberate fabrication at the time you have to remember that there was evidence in this case as to both of the people who the not moving parties or to to the to the very being tardy yes and so would you be able to argue that even taking the evidence in the light most favorable to the verdict has been and continues to this day to be this seminal case that is cited in this circuit for the cause of action known as a deliberate fabrication of evidence and to to answer the court standing in our opinion simply didn't address the issues we were wrestling with in this case about the second element which plaintiffs proposed a jury instruction on and we proposed a jury instruction on that that takes me back to my original question once even assume that the instructions were correct there are two of the alleged victims who testify these things did not happen and the statements attributed to us by the investigating officer are false why isn't that sufficient for the jury to find that not only deliberate fabrication but also that your client should have known that there was no grounds to believe that he was guilty but i think that in your last getting all right my apologies and again i go back to because deborah rowe no i'm asking a factual question now i'm not asking a legal question i'm saying assembly instructions were correct why something or enough evidence to support the jury's verdict under the instructions that were given assuming that they were correct it's for all of the reasons a judge subtle relied upon in granting the the judgment not standing the work but i don't understand that i'm giving you devereaux now let's assume based on it you never occurred the entire world is deveraux and and you have to show you have to produce sufficient evidence to go to the jury that a reasonable officer would would have thought you would have thought whatever you think deborah requires we have here two people who say she made up our statements when we talked to or we did we told it just didn't happen isn't that even if only the devereaux standard applies to get to the jury no no it's not and i would cite language from the united states supreme court which i think partly addresses this and don't get me wrong the cases are consistent in condemning police conduct along the lines of fabricating evidence and if you're asking me i wholeheartedly agree with that but what the united states supreme court said in hartmann which we've relied on heavily in support of our but for causation instruction excuse me they said it may be dishonorable to act with an unconstitutional motive and perhaps in some instances beyond lawful but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway and that but yes that's the causation or that is a cause that is not the that's not th expired you may briefly oh yes with a few my comments my comment on causation is that the hartman case is critical to a situation like this where plaintiff's entire case was trying to prove the unconstitutional animists by detective kraus yet she wasn't the person that made the decision that by all accounts caused these these damages caused the imprisonment that was done by the prosecutor would i know judge graber is told you to finish up but i have to ask this question so let's assume the facts in the light most favorable to them which is that detective krauss made up some of the evidence and then she brought it to a prosecutor who said hey that looks like enough evidence to charge to me you saying that she's immunized from liability because she lied to the prosecutor too no i'm saying you have to look at all of the evidence that was in front of the prosecutor which started with in the direct testimony was the unsolicited disclosure by katherine to her mother at the time not i've read i've read what the prosecutor said but surely the prosecutor didn't say had i known that a lot of this evidence was fabricated it wouldn't have made a bit of a difference to me i would have charged him anyway he did not say that he was or he was not asked no he would not ask for the jury was surely entitled to infer that had the prosecutor been told the truth these charges would not have been brought well and that's the problem with the causation instructions i strongly disagree with plaintiffs counsel's representation that there was a proximate cause instruction given there never was and there were five questions on the verdict form the last of which is did the fabricated evidence cause the damages or something to that effect there was no discussion of a but for no discussion of you have to take out whatever you found was fabricated and keep in mind there was very direct evidence that twice under oath these two recant being witnesses at trial as adults one of them had said i reviewed those reports and i told are just so it's clear when we were dressing the proximate cause i said that both merged into the moving force instruction but i believe that the proximate causes in corporate setting the instructions aside there's case law all across the country that states that even if there would be probable cause found that a officer still cannot fabricate evidence after that and so i think to propose that just because an officer think someone is guilty you can just go ahead and fabricate carte blanche to fabricate then there may be no damages of course if the eleven eye witnesses plus one fabricated thing it would be impossible to demonstrate that he didn't think because stan h applied to the situation he thought it he misinterpreted the language going forward which applied to the civil proceedings the child custody proceedings it was just that fundamental mistake that made him shift positions from when he denied the summary judgment motion he denied to j o m j m a well at trial so it's just a misreading but the most significant thing the judge settled that in the my opinion is there was vast amounts of fabricated evidence in this case this case went to a jury that's what we have juries for what councils talking about or just credibility determinations this jury decided that the two children are now grown ups were truthful and they decided that the third victim that hanssen was not truthful they made those credibility findings and i obviously this court doesn't want to go back and make credibility findings or try should never have been granted the positive thing about having it granted is it's the opportunity to look at some of these standards like the devereaux standard or maybe you know do does there need to be a knowledge of innocence standard or is it is the act of fabrication does that does that indicate that one knows that someone's innocent why do you have to fabricate against a guilty person why why would you be doing that so i think those and maybe that's in part i try to think that judge settle up to the last opinion get gave very reasoned opinions that he wanted to force this issue and get a decision on it by a higher court so i thank you thank you counsel the case just argued is submitted and we appreciate very much the arguments of all three counsel they've been very helpful to u