other than mr sheppard brian who's represented by mr jeff carver reseated to my left mr hill and i will do the argument we would ask you to split the argument and was part of resenting the state's case was advertorial nature and therefore absolutely immune unfortunately the district court held otherwise and went off on a tangent tangent believe that holding is erroneous and if it's not reversed by the court it will subject prosecutors throughout the state to liability for any action taken prior to a finding of probable cause that a plumber hearing or for that matter a finding a problem caused by a grand jury is this purely a question of timing what happens and i'll ask you to come to concede for purposes of argument of perjury of skyblue flanders prior to arrest different answer the answer would be the same if at that point in time there was probable cause to arrest mr g even though there had been no arrest that's correct and what if what if there was no probable cause to arrest and in fact no perjury produces the fine senselessly the probable cause that would be a different case and i would not be here arguing for  can you help me understand i mean it is probably we're stuck with some some lines of the court is towards congress told us to draw their little difficulty draw sometimes i mean the activity is the same as we move back in time we're interviewing a potential witness and w prosecutor if you want to through or nation of perjury to change the facts he wants a witness to change the facts and we're looking at facts you're talking about investigating a case not resenting the state's so  i make it would be a lot easier case for me and i understand and agree with the public policy that the prosecutor must have this absolute immunity even if these an outright supporter but i don't think it's something that should be pushed to the defendant will be bound over or not and that sort of to be my cross the line through investigation when the prosecutor wants to have her testify as an advocate for the state he's he's bound to do his job right he has to meet with witnesses he has to talk to them he has to prepare them for their testimony it's not investigative at that point in time there was probable cause to arrest mr that the police had fully investigated the crime taken evidence taken statements interviewed miss winters on videotape but you don't deny that he's trying to change the facts that are  but but nonetheless it's the prosecutor which is trying to change the facts that are given to him in this pile as he goes into the plenary hearing and that's why i have a little problem and thinking maybe this isn't this is not just presenting the state that he's presenting the case and we all prepared what this is for you when you go over their statement or you go over what they're going to say and you might give them some hints and but do you tell them hey  this court held that the grand jury was not in and handle for investigative purposes but for purposes of return and document and that probable cause existed at the time the prosecutor the hearing had her prior videotaped statement on the night of the murder and had other documents regarding her statements so they were hamstrung that's when you're hearing the mr gensler went on to trial and ultimately was convicted of involuntary was bonded out between the first and second trials and i told her relevant as to the issue of all before us whether he's guilty or not guilty because it's relevant to the issue probably costs and that's why i raised i see my time is up and i'll defer to mr hill at this penton was a division chief who was the immediate supervisor of mr a lot of our reason i'm here on this appeal this morning is because these three gentlemen were sued in their individual capacities there's a lot of argument in this case about official capacity liability whether that was a policy that prosecutors could run amuck and do whatever they want that's not this appeal i wouldn't be here this morning if that were the issue this is the reason i'm here is because these three gentlemen are sitting their individual capacity for individual damages including punitive damages and there's no allegation of that actually did anything up to the point that mr gensler got convicted therefore that's because ation how could that cause any of the damages if they just didn't do anything now here's my puzzle with this one i think as you can tell already from my question i have trouble with the labels the court has given us under which we're supposed to have an alliance qualified or absolute immunity there is specific allegation which they specifically did this administrators that somehow caused this and one of the allegation is for example they have created through their administration the office the climate in which this sort of behavior is encouraged thomas right and if you look at buckley well buckley this doesn't really tell you getting any help on the administration to the side but it talks about those investigatory here's what buckley said prosecutors administrative d policy of administration and supervision which is strictly administrative why should may be liable under under some well known theory of of having created  work and every one of the office knows and you if you want to promote it you you better keep to it but the how how would you create how would you articulate a rule that couldn't be free that in every case and theory that allows any criminal defendant to sue the whole part of the agency and do it in every case then you have just a fee that the primary articulation the reason for prosecutorial immunity you're suddenly  prosecutors dealing with defending civil litigation instead of going out there and doing what they're supposed to be valid prosecutors are going to do that other people are going to do that well you know i think that let's say let's say you've got a you've gott and then they come in and they get a conviction then they get really it's all right to use people come in and testify and you know that they're lyin from the culture you know we want convictions we want this we want to clean this up we don't care what you do you want to use lying jailhouse informants go ahead and do it and then says well you know see that road out there my or you hire somebody from another office the reputation for being a real gunslinger who will get his prosecutions successfully done based on perjured testimony so the hiring and firing based upon  situation where they're you know wrongdoings are being done they're not doing anything themselves wrong except they're running the office but they haven't done anything to your client where they live under  i would disagree with the now says that they have not been anything wrong this is a situation where we have presented evidence in our opposition to the motions for summary judgment setting forth in declarations and in other by the administration and the people who are supervising the district attorneys to make sure that they're doing their job to ensure that in fact iranian's evidence and manufactured evidence is not being used in order to  and i think when you're doing that and you aren't are intentionally allowing misconduct to occur courage being actively encouraging that misconduct throughout the course of  criminally a criminal defendant has a constitutional right to a fair trial and to have the persons connected with the administration of the prosecution implement polic and maintain policies which are not intended to prevent him from having a fair trial well that's awfully broad you're bringing in just about everyone under the sun maybe even the judge everyone that did with the trial condone by these individual supervisors this isn't a situation that you know we're looking for problems just like he's here any type of vicarious liability we're looking for these supervisors have an obligation to make sure that there are appropriate policies and procedures in place for the administration of their office and they intentionally neglect those duties so as to bolster the conviction rates organ able to secure improper convictions then they have run a felony as individual argument that's made yes but the qualification is if it's administrative behavior connected to a prosecution or maybe connected to prosecutions in general that's not the sort of the minister of a behavior that has only qualified immunity the only kind of qualified immunity that comes with that comes out of the ministry of behavior sort of personnel behavior on hiring firing procurement those things how do you how do you answer that argument because you're wrong and i think is that of the state's case rewarding prosecutors for presenting evidence in general as a general policy is not intimately intertwined with presenting a state and the main problem i have with your case on the actual situation here is it does make any difference to me whether it's before a clinton or a hearing around trial but he would suppose he would have done this a trial if we were told this flanders listen  the court last week is informative because there is justice allen suggested to me why isn't this an investigatory type process aren't they acting like a detective you know generating new facts and that was the argument made by the plaintiff in the cutting case and it was rejected because the court found that it a point in the proceedings to suspect has been arrested used to this enormous degree and i'm sure that the rule of thumb court has given us will change if it can be shown that repeatedly office is protected to this degree violate can trust i that i just wanted to bring us back to the fact that the district judge actually limited the denial of immunity to my clients to three specific issues not the broader issue that we've been talking about  constitutional separation there and number three that the defendants were aware of mr long in wasilla ploy of accusing people refusing attorneys and again we're choosing all is something a prosecutor can ask for a judge can order but it's not anything a police officer can do outside the prosecutorial side of the case it's got to be intimately associated with the judicial phase out of action thank you for the  the representing in this