the name is jeff price i'm representing talent in this case and i would like to reserve seven minutes for rebuttal mr price did you ever file what you said you were going to file in your opening brief and then we gave you a wakeup call and then you only filed one item which showed that the mere batson challenge that that person was indeed black but then you never filed anything else as far as i know and so how can you even the stablish that she was the only black in the jury pool for that trial that was the third to exercise your bets and challenge you can't because you didn't do what you said you were going to do in your opening brief well number one your honor the district court denied my x party application and number two actually number one should probably be i believe the defendants will concede that she was the only black on the jury she was and they were there number two well there's nothing in the record today that would establish that i believe that they'll concede it so it doesn't need to be on the court should not submit this case and should permit me to get the information from the district court because it is the district judge who was there when he made the erroneous decision that a prima facie case was not may he was present and he knows that that was the only african american on that panel so therefore in the event that the court wishes to explore that issue the court should not submit this case i will get the information and i will submit it i anticipated that the defendants would agree to release that information but initially they did but then they decided that they would not agree to my getting the jury qualifications qualification forms for all of the jurors and would only agree tasered severely beaten he was tasered when he was partially unclothed and vertebrae in his back were broken during the incident the incident arose because of basically what i'm not amounts to a contempt of cop type situation so what happened with the jury instructions in this case is that the parties initially agreed on the correct instruction which was at the time in ninth circuit nine point two two but at the pretrial conference on march fourteenth two thousand and fourteen the district court decided that instruction was in khorat and he appeared to be focusing on the fact that it had the fourth amendment in the title of the instruction which as we know now after kings is really of no moment so he got hung up on that and he ordered us to go back to the drawing board the defendants were reprimanded for agreeing to an instruction that would likely result in reversible error ironically and we all went back i proposed an instruction having seen that the district court was adamantly opposed to what i believe to be the correct instruction which i had argued in an earlier case in this court young view wolf which was wrongly decided and was actually mentioned in kingsley the nine point two two is correct but i proposed an instruction that had some vast ijaz of the seven circuit instruction that was discussed by the seven circuit before the case went to the supreme court the defense went back to nine point two four which is th and that's what the judge gave with a few additional modifications we do know now that that instruction was erroneous it was a subjective instruction it was not objective and it was erroneous it doesn't seem as though your opponent is contesting error part they're just saying that any error was harmless and i was hoping to hear from you this morning to help us work through the evidence that you think shows that the air wasn't harmless and in my mind what that would involve i'm just looking at the instruction that was given the problem is that second element that the judge said the jury had to find in order to conclude that the defendants had deprived your place your client of his fourteenth amendment rights required the jury to find that the defendants acted militia sleen sadistically for the purpose of causing harm right that's the that's the error yes and so what's the version of events under which the jury would have found that the defendants used excessive force the first element of the of the instruction but would not have  would not have found that the defendants acted maliciously and sadistically that's i guess where it seems to me you're that's what you need to show to persuade us that there was harmful well yes in my reply brief i address that and also i'd like to first state that is the defendant's burden to show harmless error and they did not even begin to meet that burden but to respond to the question i would say that in this incident there was some kind of an altercation between mr white and several deputies and so i don't know if i'm not understanding the question but it is virtually impossible to imagine and where the jury to find that the defendants were merrily on reasonable let me  help you with this because like most of these cases the trial i assume turned on two very different accounts of how the incident went down right i read your client's testimony and obviously if the jury believed him in terms of how things went down presumably they would have found in his favor right the officers of course give a completely different version of what your client was really the you know the source of the problem in that they just did what was reasonably necessary to control them so the defense position is that well yes maybe the instruction was erroneous but it's clear we know from the jury's verdict that they obviously credited the defendant's version of events and did not credit your client's version and if that's true it wouldn't have mattered whether the instruction was different i take that to be their argue i mean their argument is that is their argument that's probably the only argument they have  so why is it wrong it's it's it's clearly wrong because of what i said in my reply brief the malicious and sadistic standard is an almost insurmountable standard believe his version of events but whether or not they believe his version of events is unknown i guess i'm going to  were on sure about the sort of the more extreme details of a story which was so surreal i just watched and i'm going back and forth but that's what we're interested in you know what what is there in the record to suggest that you know you know maybe they didn't believe everything he said but they could and probably did and may well have believed that his main story is anything suggest that in the trial record you know i don't believe there are any jury questions that would address that but it's still what i go back to obviously i guess not answering the question is that the jury easily could have believed based upon just maybe even the deputies testimony that there is an objective leak and a reasonable use of force especially the tas ring but then found that it was not malicious and sadistic for the very purpose of causing harm so and that could have been accomplished very simply by a better special verdict form that what was used and then we would know the answer to the question absolutely but now we're just speculating absolutely there's there's nothing in the verdict form that helps out the defendants at all know this trial was also my or it with the defendants playing the entire deposition of mr white when he was in prison and extremely inflammatory information that he spoke about in his deposition so there are a number of ways that the jury could have been prejudiced against mr white even if they it please the court lorne crop on behalf of the a pelleas defendant county of los angeles and the individual county defendants and like to start by addressing the jury instruction issue and by pointing to the fact that your honour's analysis i believe is exactly what i haven't engaged in any analysis yet actually i'm quite skeptical of your position so maybe you can help us sort through i think we can get a whole lot of help from your opponent but i mean you would admit first off  them and so you can i don't think you need to waste your time on that i wasn't sure that the jury was told they needed to find three things in order to conclude that sorry something into the microphone that the defendants violated the plaintiff constitutional right the second thing that the judge instructed them to find they didn't really need to fight right the militia absolutely ok so and so i think based on the terminology that's used in the instruction the three steps i won't use an order but like you said excessive force these are all the circumstances and then the intent standard for malicious insist sick and then causation those are three distinct questions in the verdict form as well no they're not not exactly  is understanding why on the trial record that was amassed why is it not reasonable to assume that perhaps the jury found that the officers did use excessive force but the reason we're going to rule in their favor is that we don't conclude don't find that it was done maliciously and suggested why is that not a reasonable possibility here on this record i would say that's not a reasonable possibility based on different officers from different from us the vena and from los angeles were somehow conspiring to bring forward this match up between deputy it one deputy and mr white and in that case i don't believe that that is a reasonable justification for what happens in a custodial setting which is the need to control a situation deputies are outnumbered by inmates and in that case a deputy was swung at and so there to another element of the offense that the plate of had to prove after you've decided damages you don't have to have a lot agree to figure that one out ok so how does a special  form help you well that was that was it our intention is that you're going to see these these phrases and that you're going to go in order you know in a classroom setting when people walk in and they sit at a desk the next day oftentimes they go and sit at the same desk there is a repetition in order to things and that if you look at the verdict form because they never got past question what exactly and i'm right so they never whatever you're talking about in question three or question four has nothing to do with the argument we're asking you to address so i just again i'm not sure why you're wasting time on that it's not terribly persuasive what would be more helpful and you've taken to run titan haven't made much headway is talking about the evidence here and why your view of  how this verdict was arrived at is the one that we're supposed to decipher when we have nothing to go on from the for for i have to go back to i believe that there is something to go off of on the  your honour's are not persuaded by that because it's just wrong i'm sorry i mean i don't mean to insult your intelligence but i really don't think you're you're reading either the jury instructions correctly or the verdict form because those two things together do not in any way support the argument you're trying to make and they did that because the officer was presented with a situation someone swinging at him the force was used the situation was  yes but after the taser as soon as the taser was administered the the force was complete and the mr white was with proper medical care and there wasn't a continuous battle there wasn't a conspiracy of officers trying to have mr weight injured for some reason or another they're in a custodial setting where jury would understand that this custodial setting presents that situation and force is sometimes necessary for conflict resolution here in this particular situation and therefore that was sufficient evidence to support a verdict either way and they seem to me all you're arguing as well there was some evidence in the record upon which a jury could find but that goes both directions and that's not the issue because based on the reasonableness of the situation at hand the fact that there there that there is no evidence i know of of malicious and sadistic intent aside from this conspiracy theory ies consideration and would more likely than not have been the same well i'll just tell you what has given me the most part is from the record during cross examination so i don't think you were the trial lawyer here but your colleague was cross examining the plaintiff and the plaintiff at one point said after describing this incredibly vicious beating that left an enormous pool of blood on the floor and nurses aghast and you him he's being taken off to the hospital where i think he was in the hospital for a while right now i believe he was actually released shortly thereafter ok that's not what i'm remembering but anyway he obviously suffered severe injuries you're not disputing that you're just saying that no we're not disputing that right so but at one point he said something in the effect of you know i'm not sure that they really intended for it to for me for the beating to be as severe as it ended up being  it might have just been that you know it just got out of hand and i took from that that you know i guess the jury could say well you know what we actually believe him that he was beaten excessively that this when it got out of hand it went beyond what was reasonable under the circumstances but the plaintiff's self admitted that it they didn't really intend to put him in the hospital or to break his back on it just so we're going to conclude that although there was excessive force used under all the circumstances it wasn't the defendants didn't actually licious lee and so distinctly so that's i guess i'm just saying that's what has bothered me about finding in your favor here and what is your response to that well the fact and we're not we're not saying that the injuries weren't there of course but if the intent has to be malicious and sadistic and in this case someone is taking a swing it gets out of hand because one officer is is a threat they are is being threatened rather the officer is five nine mr white is six four and so someone else comes to help the situation and situations being i believe that that and that the officers were not in the licious not the officers weren't intending to punish or intending to cause all these injuries than the fact that there's an issue going on that merely stating that there was no follow up questions on void here is not enough we we learned about different factors that potentially can inform bias from from the judge's questioning  support for the record was asked to be submitted very very recently and the weight of the question of privacy for the jurors didn't didn't seem reasonable fast let me ask you  pretextual to me because you could have submitted all the forms and blacktown all the personal identifying information including the names everything else except the race and we certainly could do that and yeah but we can't make you do it but no way if you're so concerned about your privacy you could have done that a least we have a record to know what the grace of all the jurors in the absolute i think i mean i think we have more time we probably would have considered all of that i didn't even have an opportunity to review the jury questionnaire form intel friday because that's when i received it so we didn't know what the forms looked like we didn't have an opportunity to review them to determine that we didn't know that there would be a race portion on there but there is and so i think had we received them review them that certainly would have been a reasonable a reasonable not because of occupation and that is an articulate articulable justification that the difference in call the does listen is certainly race neutral and so i don't believe it's necessary we could certainly do that but in this  that's an excerpt of record page one twenty three twenty one so if the court wishes for us to supplement them we would certainly be willing to do that had we had it if we have a chance you review and potentially redact information for the know it would take forty eight hours at the most if this court ordered release of the jury questionnaires and i think it should do that looks like opposing counsel is willing to do that they can be easily her doctor there basically three to show they will show the races they will show that i am corrupt and that under surely i win they will show that she was the only african american on that jury  right off you go to two right so he foreclosed two right they wouldn't have had anything to go on i'm not going to tell them how to do it but i do have an answer to your question and the panel's question in general about harmless error and that is that given the fact i know that juries are not usually back they're talking about subjective objective but clearly malicious and sadistic is you know it is subjective you know and i can say that when the jury was considering that because that is a more subjective or is a subjective standard even though they're not talking about that in the terms of subjective objective i believe the reason this is not harmless is that that led them to accept the testimony of the defendants and give that greater weight as to whether or not that subjective standard was met in this case and my client was assailed he was like i said his entire deposition i fought bitterly to keep that out it was let in and you know his credibility was severely diminished so i believe that is why this is not harmless and i request that we get those jury qualification forms initially defense counsel agreed to that but then decided not to and that was all that quote problem thank you ok