your morning your honor my name is john powers i represent defendants the mom locket and pop all montel tell at the outset i plan to cover two of our chan appeal issues although i'm glad to answer questions you may have on any of the other issues  those documents give us opinions of the district attorney that one of the charges brought by the defendant was quote legal and sufficient and quote and not legally viable and that the provable facts on the other charges were questionable at best the da also a pi and favorably concerning the credibility and character of the planet there's no real dispute that the seven is not admissible the real question is whether or not the errors harmless  permitted on the analysis if you're talking about the district attorney evidence your honor there was no reason given note i go telling it i was thinking of the other one the commission results that relate to the incident that was being tried that occurred after the incident in the judge's rationale that that was relevant to the man now question the deliberate indifference cleaning the whole thing in theory i understand your view would be that you can't take it that way from the jury's eyes but but but in theory was was was it admitted and all that evidence for anything other than theory anything other than the man now charged no no reason was given and no reason has been advanced on appeal other than menow and i would and i would further respond to that because the c r b proceedings with respect to the defendants occurred after the incident in question they couldn't have served as evidence admissible evidence court's decisions which which have held condition place if you have one more minute or so with respect to the issue of harmless error parent cameron had two big problems with very similar testimony there and that was one that invaded the province of the jury with respect to the credibility of the witnesses nd it told the jury the district attorney opinion told the jury  respect to a substantive issue that it was deciding that is probable cause both of those problems that were present in cameron are present in this case with respect to both the c r b evidence and the district attorney of ins both about both attempt to and in the camera case on the on the evidence from the district attorney your position is it was unnecessary for grant to show that the charges against him had been dropped in order to make out of the arrest claim  and i think i understand that that you but the jury charge also did instructed in it that the d a s decision to drop the charges didn't mean that the officers lacked probable cause yes there was a sentence in the charges and i think to paraphrase the correctly that the decision to drop the charges didn't didn't mean that there was a lack of probable cause but that's not the problem with the d they're talking about the validity of the arrest in particular in there and he says the d a says st of all that the st charge with domestic disorderly conduct charge is legally insufficient and that undermines the validity of the rest and he says the provable facts regarding the other charges are questionable at best he's commenting on the strength of the evidence leading to the arrest that's this is beside the fact of the dismissal and this is exactly the issue that the jury is considering this is the issue that they've been charged on if you look at supplemental ten docs page seven hundred and eighty three when the court is instructing them about false arrest he says this is a paraphrase you've got to the the officers have to collectively have information at the time of the rest that would lead a reasonable person possesses the same official expertise as the officers ok and my side is that would be the da right to conclude that the person being arrested has committed or is about to commit a crime while the da has completely undermined that that issue and completely put his thumb on on the scale without issue with respect to his opinions in the letter and that those go way beyond the dismissal of the charges and those were not there was no cur a had good character and his account of the events was credible a witness could come in and say that why can a document come into evidence and say the same friend that documents back in the jury jury room when they're make clear the three minutes that you started with expired and i want to make sure all the judges knew that they could come in at this point stretch curious did you have any questions you wanted to pose at this point not at this point thank you could i then go back to the citizen review board evidence and ask you to address your client if i understand the record correctly and we raise the prejudice issue for three issue before trial and is that enough to preserve both for us objection where was or if my misunderstanding the record was it also raised during the trial when the for the fin review board evidence came and so again we're we're there are two groups of citizen review board evidence that we're challenging the most egregious is are the results against our going out on the issues of your client and so i would say that those  unreserved decision by the judge that's sort of beside the point here because i also objected at trial to the admission  exhibit twelve and twenty which were the two exhibits that contained her findings against my clients i also objected several other times when they were referenced during trial i don't think that it can be said th eleven you know the other i would also invite the court to look at the unlimited motion because i don't think it was just a rule for three ground that was advanced as a challenge to to those documents  question may can not be relevant to mel under chronically thompson and even if they were they are of the type that are explosively prejudicial under rule finally can i just ask i want to make sure i understand the nature of this c r b investigation the agency if i understand correctly doesn't doesn't have subpoena power at least it doesn't subpoena police officers because police officers decline to appear before it so is it interviewing complainants and other people who are willing to offer testimony and that's the entire basis for its investigation yes and i  think it does have subpoena power but it has not chosen to use it and it's i mean it's questionable what that subpoena power is because the oath and does and therefore does not actually take testimony so i'm not sure what you would be you might be subpoenaing the officer to attend but since the process in procedure doesn't permit or allow for testimony under what they do is they hear from the plaintiff and in the plaintiff retinue of witnesses because they don't hear from the officer they credit they they credit the statements of the plaintiff and the pla family and they make their conclusions based on that and i think that's an important because under graham's economy you cannot make an excessive force determination without knowing all the facts that were presented big and small to the to the investigating officer and if you don't have the investigating officers account of what happened you cannot make a good in excessive force determination or gra connor so the fact that they made that determination and that determination is in front of the jury is of no waiting no value to the jury because it's not based on the grand the economy standard and then finally i would say  on the issue of the potential arguable relevance to me now which which we would some that it is not admissible i'm out for a number of reasons that still doesn't explain why you allow the jury to hear that maybe the panel concluded that my clients were on truthful without ever hearing from them the credibility of the witness back sacrosanct that's an exclusive province of the jury and it qualified immunity and in qualified immunity is a question the next question of one fact under our case law but it is clearly that the ultimate to certain determination is a question a loss for the court and th proper procedure is a set forth by this court in stevenson versus if that is if there are questions of fact that need to be result for that determination that they are submitted to the jury the special in iraq or we asked the judge to do this he did not instead of deciding qualified immunity he delegated that to the jury he did not make that determination at all before a judgment was entered awarding damages facts and you know any decision on qualified immunity presupposes that the jury found in favor of the plaintiff on every single factual dispute there is no law on that that is not the law of qualified immunity there's no authority for making that presumption and you know it is circular and illogical the jury could have very well believed everything that the defendants testified to in this case because the defendants testified and admitted that they did use a physical force hand strikes to bring that to make the point of compliance as they were trained to do typically if a police officer commits a false arrests and inflicts excessive force on the person and present perjured testimony to cover up his actions violates the united states constitution and there's no qualified immunity and he's ryder me tells me that two syracuse police officers have just beat up a sprint missile launcher grant without justification and that a police sergeant has stated that mr grant has confessed assaulting assaulting the police within a day or so i every step and in the interest of justice it must be rejected here now we hear following nine days of a jury trial with twenty witnesses who provided testimony to juries got to listen to all the witnesses and after hearing all of the evidence and all the witnesses the jury did what the united states constitution asked him to do they stop the injustice based on the truth and rip it wrong finished now want this court to believe that this was an exceedingly close case the problem is the jury could see that these offices absolutely committed perjury example non party witnesses  have lho makes it very clear that evidence show whether or not the city as maintain a policy that was in force at the time of the instant here the city failed to discipline the offices before be able to discipline after and that was to show that the city maintain a policy the constitutional rights and deprive mr grant of his constitutional right that goes claim that's also in the hewlett case person syracuse where the court was very clear in this case the evidence was sufficient to create a jury question regarding whether the understand it the investigation the findings of the the or b are not based on a preponderance but the board in essence find sufficient evidence to substantiate its origin send it along to the police department for it to determine how to proceed when isn't that review boards found them libel they must be libel when that is not necessarily true because the two different entities are applying a different standard well that was skewered by the court instructions a court gave a very limited instructions regarding how to apply what evidence to what issues and what and what facts this had every right to testify before the c r b hearing in fact the this police department has a policy of not allowing the opposite a test to test a tat even when they were subpoenaed they don't testify so the generally understood these came didn't didn't come in a separate proceeding it came in the same proceeding as as the tort claim clinton and constitutional violation claims against the individual officers of course is not it's not i'm not saying that they would that there is a requirement of bifurcation i'm saying in this case the problems that arose arose because there was no bifurcation it does not it the because it because it was in the same proceeding isn't the issue you are that whether or not the court has question the manager's court room to consider the convenience of the parties and the jurors and have one child as opposed to having two trials take lee when the officers were claiming qualified immunity and the city had his own defense the there was no prejudice here because even with this defendants and that's what's that's that is that is the amount of concern not that they had bifurcation or that it's you know that's the law it's just a question of whether in this particular case the problems that we are now talking one trial is almost always better than two trials i'm just raising the issue of whether the problems that we are that you that your adversary raises didn't arise because it was not by forgetting that's all prejudice to the defendant office is that the fact that they were not credible they lied all the witnesses completely who who were the same these issues a matter of discretion to the court in the court put into guardrails to manage and make sure the deeds to tenet had a fair trial is just said when you lie i leave you often to testimony these jurors to show up and they have studios and they could see these lies and therefore they found the truth and they found against these defendants interesting enough opponent does not count which the fact that was a finding of excessive force of finding of  case testified giving the opinion that the defendant's offices were credible and that there was probable cause for the arrest disbelief effect or did not give any such opinion testimony regarding probable cause and fact he said there was quickly regarding the inner roger tories i'm in your court this particular panel an outlaw i just ask can i ask you about that patrick's testimony just a little bit i mean there was a descriptions of his positive relationship with plaintiffs counsel  assistant very very thorough investigation of the case he read a press release you tested essentially attested to the plaintiff's good character and i'm having a hard time seeing what the basis for that testimony was so help me out he explained the elements as to why just the tourney would dismiss a case in one of the factors he used was the fact that the plaintiff had good character planted was involved in this community he conducted his thorough investigation and he came up with the mr grant had never been arrested a fifty four year old man never ha was it even necessary to establish that the case had been favorably terminated to prevail on the restaurant because i don't think it was it's not absolutely a prerequisite but considering when you have a positive prejudice in favor of police officers is a plaintive who's now trying to prove a case of excessive force must do everything necessary to win his case so that testament was necessary because the cops lied in their report regarding the ex con fashion's being that there were two confessions against mr grant one officer lockett said he mr grant said i don't give a damn about the police i will go to jail and secondly start wouldn't have been an error to give them i thought this is a matter largely left to the discretion of the district court yeah but they did just record has to give the correct law those particular instruction violated your law in the outlaw case  says what he reasonable officer would do not the subject to believe what the subject defend the police officers would do so the bottom line conclusion here  rates i recognize that for helping simmons that is a presumption in rates that are in the district but you can overcome that presumption counsel provided special expertise that was unavailable  strict and that's what we have here this was draw your attention back to your st argument your adversary argues that you that way the argument that you're that there's an entitlement to recover for work on the criminal charges do you want to address that  foley and a case called city of reno vs conn from the th circuit that th circuit case went up to the supreme court and was reversed based on its decision and conduct the thompson that's the decision i against officers mark how to lock it is not there was no limiting instruction given for that exhibit and the plaintiff did not use that form n l purposes at trial in fact they emphasized with numerous witnesses for liability purposes only that the c r b had found against my clients for excessive force on truthfulness and let's let's say for the sake of argument that we agree with you that the evidence was not properly admitted on notice and that it was used substantively against the officers your adversary also made a harmless argument air argument in essence today that the evidence of perjury by these officers at trial was overwhelming and the jury and the evidence of their liability strong and the jury it would have made the difference was innocent the argument what he's referring to is one of the four factors which is the i think it supports factors whether it's a close case and i think that is a you know mr bonner's argument that  established is just out of it's argument this was not a close case i think that you can look to the amount of time that the jury was out there out almost three days on this case i think that you can look to the fact that no punitive damages were awarded if if if the plaintiffs a version of it the facts were brought by the jury and they concluded that the  that the defendants a perjured themselves in their police reports that this would have been a punitive damages case and so that wasn't the case at trial and and if you look at the accounts of the  events by the plaintiff and his family members none of those accounts agreed with each other this was not a close case for actually doing this candidate because you know you keep saying that i think you mean it's make it indicators you know but also what was really going on in cameron with respect to whether it was a close case was whether or not the st but on the core issues in the case and i don't think that you can deny with respect to the d a s evidence in the c r the evidence you know they're not just closely related to the issues decided by the jury they are the issues that are decided by the jury and if it was so clear from the other evidence that the plaintiff had a legitimate claims then there was no need to put this in irrelevant clearly it is inadmissible evidence in the record in there's no need to have a farm put on the scale by the i don't know what there are what would be because these are you know the issue of truthfulness that's a hot button issue for this court to have another witness a valid for the credibility or lack of credibility of any witness let alone a party witness that's a hot button issue and we've got that and we have improper opinion on the exact issue using the what exact term analogy that the jury is deciding i mean you could not get a more gr example of a prejudice you couldn't create hypothetically more prejudicial evidence in this so if if cameron is to be applied i think that there needs to be a new trial in this case understand that my time has expired i appreciate the court's indulgence and i would rest on our papers with respect to the remainder of our issues and russia have any further questions thank you mr powers thank you thank you all nicely argued