one six that's five nine four nine susan king versus tom harwood at all or argument fifteen minutes per side mr clay for the brand of summary judgment by the district court on a claim of violation of civil rights where susan king was prosecuted by particularly one k s p detective named todd harwood for murder which she did not commit and it's our position that this detective together with his superiors colluded to fabricate evidence after the initial investigation basically exonerated her there's a statement back to sergeant dokken from two thousand and six and which he states he did not believe that miss king was involved in this homicide yet five or six years later detective harwood is appointed to cold case the tactic and within twenty one days the solves us murder which generated twenty seven suspects under the prior investigation but the most egregious go to the metropolitan correctional jail in lieu of all and convince a serial murderer name mr gerald to recant his confession that he murdered mr breeden and this case after the court of appeals are after  prosecution action based on what he she he did long after the prosecution yes or because he testified in an effort to continue that prosecution and the spencer circuit court after the conviction or after the statement came to light and there was a hearing a sixty zero two hearing in front of the spencer circuit court and detective harwood came in and testified adversely in an effort to continue the viability of that criminal conviction clammed up he wouldn't talk anymore the tectum harwood tape recorded this interview and some have when he took his tape recorder back to the post of campbell's burg this tape recorder which he took by hand to the locked doors the door to the post itself and a door to his office this tape recorder somehow mysteriously disappeared a council you can make your argument as you wish but at least least for me that you answer just silence question in terms of what happened before her conviction yes or he and i and our view he fabricated evidence and specifically the evidence regarding the bullet holes and miss king's floor the floor of her house  when the initial investigation occurred there were two bullet holes in the floor and then when detective harwood went back there were four bullet how he said that there were twenty two caliber bullets there which was true but these bullets did not match the bullets and mr braden's had the bullets in his head were twenty two magnum bullets the bullets that were found and miss king's residence in a tree behind her house were twenty two short caliber bullets he also testified that the  because it could help me on here this because i mean i'm seeing two different things in the record one is copper wash copper jacket sort of things and the other is magnum versus regular kind of the other side says that at various points well you know she could have had other kinds of bullets just the fact that all the ones in the tree were those isn't proof of that but in your brief you specifically say that you can't fire the both of them from the same type of gun in the complaint i sort of see an inference but i don't see that as a statement is there a a record site about what you can and can't fire the magnum from i believe the report from the ballistics test is and the record your honor i can't make that representation but i believe that there are  ballistic a report in the in the record and i was that's kind of one of my questions is whether that's the one you're referring to there's a the one that i have been looking at  by signed by written there's a report signed by ritter now that of the memo the complaint talks about a conversation that harwood had with clemence is there a report by clements batter standing is that there is a report your honor that indicates that a magnum bullet can not be fired from the kind of weapon from which miss king fired those twenty two caliber short rounds ok so if we if we look  fatten fabricated evidence that's what we're basing it on your honor yes or your client would have been charged and rice he went to the grand jury with absolutely not would not have been charged unless he'd gone to the grand jury out with a case within the latest in days or so i think the sanders versus jones case so i sent it's not it's not that he went to the grand jury  the prosecutor went to the grand jury and he's been put in motion by mr karr that's you're exactly he got the wheels rolling and he got it through fabricated and falsified evidence without regard to what he testified for the grand jury it and is still a problem for me that perjured testimony could not be the basis for any kind of corrective action in the civil court but i understand what that holding is and certainly that's why i was not even going to dress grand jury testimony or as trial testimony for that there was no trial but the hearing testimony that at the sixty zero two hearing so we haven't talked about the statue of limitations if the court cares to talk about that  and i'm not going to go through all the other precedent that sets the date for the effective running of the statute on a malicious prosecution claim there are six three six circuit cases which i think speak directly to that one from two thousand and fifteen  county of oakland then there's a nine hundred eighty eight case mccain versus city of grand rapids and a two thousand and one case rough versus runyan all of which is at least in my view hold that the statute does not begin to run until there's a favorable terminus of the prosecution in favor of the plaintiff and there's no question that this prosecution was not terminated and selling diving was dismissed because of the opinion the court of appeals did not resolve the issues the court of appeal sent the case back to the circuit court for a trial on the murder and tampering with physical evidence charge charges so it's our position of course that the statute did not begin to run until october the night two thousand and fourteen and we timely filed this complaint  october the first two thousand and fifteen i'm also troubled by the fact that the judge did not allow us any discovery and we asked the hassam discovery he said we weren't specific enough in our request seeking discovery but as i understand it the sky every limitation for specificity applies only if you had some discovery we've had no discovery so  and i understand the limitations imposed on discovery for a qualified immunity defense i understand that but still there was no opportunity for us to discuss or to pursue any discovery and certainly we would have welcomed the opportunity to have deposition testimony from mr harwood and his supervisors who oversaw the investigation and prosecution of susan king i think it's also significant and note that this is not a situation where a determination of probable cause is a foregone conclusion the fact is that the court of appeals reversed this conviction on kentucky's rule that she has shown actual and essence under rule sixty zero two actual innocence is inconsistent with the founding of probable cause and we have examined in our brief the elements that harwood relied on to establish probable cause is i think there are twenty seven points or seventeen points and we have taken issue with not every single one of them because some of them like the one where she had the vision that the body was going to be found in water that where where does the seventeen appears there a document that says seventeen or did you divine that from something harwood came up with his theory that there were seventeen reasons that supported sent in a report that he gave to the gasser ok so that's what  let me ask you this about the group about the discussion with the with the with the lab technician was do you assert or is there in the record that that information did not come into the hands of the prosecutor or you said there's a lab report which we haven't found yet but it was that lab report given to the prosecutor when he made th because the prosecutor made the decision to go to the grand jury yes or she it was a she actually spoke the comments and i came make that representation your honor i'd like to be able to pursue that and i asked her in a deposition whether of harwood provided this ballistics reports or with some other information that he had access to which i would like the fact that if he provided that to her or withheld it but unfortunately we were not afforded the opportunity to do any discovery ok but at least from your view of the record we don't know the contrary that is the a detective in this situation might have said ok they're all these problems but i gave it all to the prosecutor prosecutor made the decision he'd be home free we can't read the record that way at barred by double jeopardy because she'd already been convicted and served time in prison even though the case of the conviction was vacated by the court of appeals but i do refer to the wallace vs kato decision now to cite that directly because that supreme court decision says a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action and it goes on to say a cause of action based on a wrongful conviction accrues on the date when the conviction is set aside not the date when the charges are dropped so clearly in this case when the court of appeals which was in july of two thousand and fourteen set aside her conviction under wallace t when her cause of action for malicious well taken what do you think a as an accurate statement what was left for the trial court to do i think they had no choice except to dismiss the charges and there was a new come with attorney that  dismissed it at that point couldn't they i believe they could have and they still give it they thought it back and obviously a range of things could have happened once they went back to the trial court and that's what your argument there is a little bit troubling ok well let me except your position on that and that it was not that her cause of action did not occur until the simpson county circuit court dismissed the charges we still have the issue with regard to prob the district court was correct when it said that probable cause is mandatory for a militia a lack of probably cause rather is mandatory to maintain a malicious prosecution action in fact reverse the city of columbus this court said that the plaintiff must establish a lack of probable cause now clearly an alford plea is a guilty plea in this case in the complaint the appellant has set out a state cause of action for malicious prosecution and a federal action for malicious prosecution under the kentucky case are brought us vs campbell it says that under kentucky law a plaintiff cannot maintain a malicious prosecution action after entering a plea of guilty and clearly north carolina vs alford that is a plea of guilty and in order to enter now for plea you have to stipulate that the commonwealth has sufficient facts to convict you if you were to take that case to trial that's probable cause under federal law of course as this court well knows a grand jury indictment bars a federal cause for malicious prosecution that's under davis versus mckinney barnes versus right versus so under either theory of malicious prosecution state or federal they are barred first of all by the guilty plea secondly by the grand jury indictment now let me take you back to the  query as to whether that should be read as saying in saying what you said with regard to false arrest or false imprisonment but not malicious prosecution because the prosecution is still alive until the charges are completely dropped the you're you're you're set at liberty than the arrest or imprisonment may end harmala for false arrest or false imprisonment the statute begins to run on the day the person is arraigned so it has nothing to do with when the conviction set aside or when the charges are ultimately dismissed it begins from the day that the persons arraigned that would have been far in advance here and we argue stated that's what a sado is talking about knocking at the you know the rule in heck you can't sue until you're not convicted dream court and in cato says that heck doesn't bar you from going forward i said shoot his guns on false arrest and false imprisonment but it's not a malicious prosecution ruling is it i disagree your honor respectfully i believe that that was a malicious prosecution action and if i'm wrong i apologise to the court but we can look at it you maybe but regardless even if you're right here on are we still have to go back to whether or not a malicious prosecution action can lie in this case and it cannot because of the probable cause stand ok and that the underlying the merits i was asking the quite right and that's the underlying issue here with regard to our qualified immunity defenses in the district court found that we were entitled to you can never sue them that's basically your argument it's black letter law you're on under malicious prosecution you cannot bring an action for malicious prosecution if you enter a plea guilty to the underlying criminal charge so if that's your best case that makes that an absolute the kentucky case law is brought to speak campbell that was cited actually by the district court and its order of dismissal and obviously we refer again back to the federal case law with regard to a grand jury indictment being a complete bargain illicit prosecution sorry just a well i was just going to ask you on your last sort of ethical treatment so even if there i s you know let the through hypothetically that there is undue pressure you know false statements they're made to let the perth and know that things are going to be really really bad if you in kentucky under brought us we campbell and again i think the law is clear that a now for plea is a guilty plea and i would cite the court there to grabe overseas united states postal service from the federal circuit in one thousand nine hundred six decision i think the case law is numerous cases have found that an alford plea is a guilty plea and i don't think you can surmount that but let's go back and talk about what the evidence in this case really was they can't they can't get around the fact that there was a volatile relationship between the deceived and and the appellant in this case ms king they can't get around the fact that she had made these statements to numerous people that his body would be found floating in water they can't get around the facts that numerous people would be found plain water did he did he thought he believed she said she had had a vision or another case she said that she had an apparition and that she had seen his body floating in water that dini brain would be found floating in water and this was before his body was ever found in addition numerous that was known to everybody the first the first go round of investigation yes sir and nobody thought they could bring charges that well you need to remember that just say the judges normally grant so i'm not i'm not saying that i know why the judge did it but as a legal standard it would have been because there was insufficient evidence of probable cause but again once in two thousand six when detective harwood came back with the knowledge that he had including this knowledge about her statement about his body would be found floating in water before he was ever found about the volga relationships about the fact that she made no phone calls to him after the day he disappeared or whatever would have an artificial leg yes she did it have a prosthetic leg that there's evidence in the record that she did and it may be disputed by appellants counsel but there's evidence and record that she did ever would i would i find that evidence i'm sorry where would i find that in the record and i'm not disputing you i can't give you that the reference page at this point in time your honor i don't have that rule we'll look for that one religion for his as well go at it again the evidence presented to the commonwealth attorney he saw fit to present this to a judge for search warrant i want to also make the court aware that after the search warrant revealed four bullet holes in the floor they found a spent twenty two round in the floor joist they didn't even seek an indictment at that point in time the commonwealth attorney asked that they get more evidence with regard to blood that was found in one of those bullet holes this with to his having  been missing right when they found the two other bullet holes in the he'd been missing your honor dept one time for seven and a half years he had been missing for seven and a half years but the blood that was found in one of the bullet holes in the floor was found to have had human male d n a in it so it could not be matched to deni breeden because again this is seven and a half years after his body was found because that was when they got a  but it wasn't until two thousand and six that they got the surgeon what's your take what's your take on this magnum bullets non magnum bullets copper wash copper jacket but i don't think there's anything in the record that indicates that those bullets could not have fired from the same gun but that's all there's also evidence from statements that witnesses made to detective harwood into other detectives that she was known to have a number of different twenty two handguns in her home she was known to have a number of different kinds of ammunition and her own so it's not as though we're dealing only with one handgun here necessarily clo do you think there is or isn't a report from the state police tech about the ninety nine when sergeant carey duncan was there and saw the bullet holes and asked to search the home and was refused she had ample time to get rid of any handguns and any ammunition that was in her home there were no handguns found although there were numerous witness statements as to her possessing and obviously from the second search warrant of the tree i believe there were one hundred thirty some rounds of twenty two ammunition that were taken from that tree in her backyard so clearly at some point in time there have been twenty two firearms on that present on that premises none of those bullets when i say match i'm such speaking loosely none of those bullets either in the tree or in the floor matched the ones in his head they  ones the one on the floor was too deformed to make a match with anything and i don't i don't think there was necessarily any attempt to make a comparison with the ones that were taken out of the tree when you say it was too deformed to make any comparison i thought that was that was where the part about the copper wash vs the copper jacket came think that's an argument appellant attorney is making but i don't know that that's in any other how did he know what was it what was on the what you call deformed bullet if somebody didn't do some kind of tests on it again your honor i can't speak intelligently to that point i think that's an argument balance attorneys make it look there's a lot of things in there and the complaint that are not necessarily supported by the record what's your position on the judge's denial  the ability to conduct any preliminary if discovery again your honor qualified immunity is a defense to litigation not just a defense to to having to pay your liability so i think the judge is correct in what he did here i think the record is so clear here in the law so clear that in a settlement of probable cause establishes qualified immunity and defeats a malicious prosecution action therefore  judged in the district court the judge was correct in denying any further discovery because there was no point in it you know i know that you think a lot of things here are you know clear and abundant with you but then we still have the woman with the artificial leg who meant what five years in prison for a crime that the court ultimately determined that he didn't commit they did not find that she didn't commit it they vacated her sentence based on a false confession gerald which occurred as judge boggs said earlier many years after the establishment of probable cause for the investigation so i don't think your position is still that's a false confession by gerald yes or no the court his confession was that he shot i mean what was the basis for that i understood your adversary to say correctly that the reversal by the kentucky appellate courts was based on actual and it is but they didn't understand what gerald confession was because he said he killed any brain in henry county at three o'clock in the afternoon on october twenty sixth one or two kentucky appellate courts are wrong i mean don't we shouldn't we have to take it at face value for these purposes well if you if you understand what his confession was that he killed the man at three o'clock in the afternoon when he talked to somebody at four thirty in three minutes but there are several misstatements i want to correct that your best shot miss king never had a prosthetic leg in fact her leg was cut off as a result of an accident to the point where they took muscles out of her back to try to create something  stump where she could have a prosthetic device they were never able to do that she never had a prosthetic leg if the apple e says that the court of appeals got it wrong on mr gerald statement i would invite the court to read it will the verb i hate him statement that the court of appeals quoted that mr gerald again described in graphic detail how he murdered this man the other thing that i and our response of the mo dismiss your honor in response to your question is where we found the ballistics report there are two reports in there one has to do with a bullet fragment recovered from the floor of miss king's residence other has to do with thirty one bullets that were taken out of the tree behind her house the one to which i referring i do not believe is in the record but there are two ballistic reports and they are that describe the comparison between the fatal bullets and the bullets taken from his king's floor which that there's insufficient residue to make a valid comparison understand in the circuit there's a quotation rejecting defense argument this court hill at the vacating of marshall's conviction prevents a defendant from using his guilty plea to preclude his subsequent civil claims rely on broad as to be campbell is kentucky law i'm not sure but i would believe that federal law would control the effect of a plea of guilty if it's set aside and this case clearly says that that i have to use that term clearly that is clear which case i'm you reading from you this is doggerel versus lunt seven sixty four f second that is a case you're reading from that's not the cited case or go ahead that that's the six  it would have been filed while this case was still pending and it would been subject to dismissal from the same grounds of these other cases are where there's a collateral proceeding attacking the validity of the underlying the litany of the criminal prosecution so i think we're on  irm ground on that let me take you back just to make sure i got the part about the police reports right you said there are two reports but you said that only one of them is in the record and so the stuff about whether you can fire the kind of bullets from the kind of gun which you refer to from this conversation are you saying that indeed that kind of statement is not in the record now sir i believe it is in the record i believe it's in the complaint and i believe there's a reference in the complaint about the end compatibility of these twenty two short rounds with a magnum around well let me ask you that because you know i think we're talking about paragraph  seventy two or thereabouts and i did not see the the in some files that were i should be looking there's likes a number of series of numbered paragraphs which make those because those those statements had the complaint here i'm sorry i'm missing it or we can i'm sorry paragraph eighty is about speaking with matthew clements who performed the comparison of the different bullet and number seventy two harwood believed king was not the weapon used in breed in this murder but that doesn't talk about magnums and incompatibilities and i didn't see any statement in the complaint about that i saw a statement in your brief and that's why i've been hunting for the the support for it say you may or may not be right but i i did not directly find something in the record yet although i haven't read every word of the reports i'm looking at paragraph eighty five and eighty six your honor  n you say the k s p lab report ok did not match the bullets but that matches still not that they they couldn't have been fired from but that's what you'd rely on then is eighty five eighty six  that eighty one at eighty one is again it says they do not match on clements told harwood that the bullet in the floor was a twenty two caliber copper wash the bullet in the skull was a twenty two caliber magnum clearly establishing the bullets did not match but that's different from saying that the same gun couldn't fire them both yes or i agree that is that is not stated in the complying ok all right thank you