and the great work of satire entitled the devil's dictionary ambrose bierce defined legal as compatible with the will of a judge having jurisdiction and we all know that that is wildly inaccurate in most cases however he must have had in mind as an inspiration a rare and exceptional judge such as judge kenneth lewis in this case we are here because of the disclosure seventeen years or so after their creation of a series of letters and documents which came to be known in the lower missouri courts in the havey as corpus proceedings as the lewis letters those letters have to be considered in the backdrop of the missouri code of judicial conduct which prohibits ex parte communications and provides that a judge who receives such a communication  name pending matter or a matter which might be in front of the judge should disqualify himself it is also i think this case must be considered  n light of the due process right of every person to be an appear in front of a disinterested judge what those letters reveal and what  later evidence revealed about judge lewis were number one well first of all let me say that when i first saw those letters those letters were actually discovered quite accidentally by an associated press reporter who was tasked with covering the two thousand and eight gubernatorial election and missouri and in doing background on one of the candidates m hulshof he was apparently allowed access to the attorney general's entire trial trial al file and then that file in an obscure and unmarked folder he found these letters he wrote an article about it we became aware of the letters and my first thought after seeing i had two thoughts when i first saw those letters number one i can't believe that experienced and trained lawyers would put something like this in writing and then because in considering the fact that they had been suppressed for all those years through two trials why did they still exist that was my second question i think somebody forgot about them but what those letters revealed first of all number one ex parte contact communication from a victim of a shooting and which went into it's a letter it goes into great detail about this victim's dissatisfaction with the local prosecuting attorney who he said showed no interest in his case  i think the code of judicial conduct at that point would have required judge lewis to have no further involvement in that matter but instead he clearly set forth in his letter to prompted him to call a meeting with the local prosecuting attorney wherein he showed a copy of the victim's letter to mr roberts the local  conclusion that judge lewis had entered into a conspiracy to deny mr woodworth his constitutional rights was pure speculation  was no now we all know and it's replete throughout case law that in proving a civil rights conspiracy or any other conspiracy it's very rare especially a civil conspiracy that you're going to have direct evidence  of that conspiracy and so it's in most of the cases you go and look at the circumstantial evidence the circumstances that support such a conspiracy and in this particular case that he conspired with let's say  with the sheriff's deputy calvert with his personal attorney mr elliott who served as a counsel for the illegal private he should he was or he should have been aware of the specific prohibition of the entry of private influence and to criminal prosecution of any stage of that set forth in state versus harrington he had to have been aware of that and if he wasn't it was inexcusable that he was not mr hulshof himself said that it was the most unusual thing he had ever seen having a private investigator hired by the victim to be involved in and actually was found to have led the investigation by not only the special master but also judge hall to whom the case was drawn from the circumstances first of all mr hall saw a follow affidavit in support of their opposition to the summary judgment motion that was granted and in that in that affidavit he indicated that there were there were only a couple of conversations with judge lewis before he was actually appointed and that they occurred between october fifth and october seventh of one thousand nine hundred ninety three and those corpus hearing and in his deposition in this case he never said a word about this time period of october fifth to october seventh with the district court makes great places gr emphasis on that limited time period but it seems to me that the circumstances support an inference of many more conversations that probably took place before october the fifth a so in this gets to another aspect of those letters those letters set forth for any experienced trial attorney or judge explicitly sets forth that there are going to be some huge obstacles to any prosecution of an alternative perpetrator or anybody other than the original person named and fingered by lendl roberts in the victim and that is i think it's pretty obvious after thirty eight years of practice if i get into a case where i know that my main eye witness and victim has previously identified somebody else i've got some serious explaining to do as to why a subsequent person is now the offender especially where this prior person that was fingered by the victim happens to be the boyfriend of his daughter somebody about whom it would be hard to imagine him making a mistake  well i think that what this amounts to is the circumstances suggest that mr hall's off at the urging of judge lewis was given the message that he was going to have to fabricate a different version of the events that occurred right after the crime in other words mr robertson was going to have to change his testimony he's to have to implicate somebody else and so the what the only way that can do that is to suppress the evidence that he fingered somebody else and have mr roberson fabricate his version of events i don't believe that he is entitled pre indictment to work with a witness to fabricate his testimony and if that is going to be the law then i disagree with that i think that if you look at judge skill is justice scalia's concurrence in the buckley vs fitzsimmons case he has a hard time understanding why ambler versus pacman when as far as it did because now what you see the whole underlying basis for that opinion was that the criminal law would take over if a if a prosecutor gets caught fooling around with the evidence or fabricating evidence or suppressing evidence there's always the criminal law there's always in subsequent cases down the years there is always the bar association can take care of this but i don't think it's working and i think judge olson in his dissent or judge kozinski in his dissent in the olson case which matter it seems to open the door somewhat for liability for pre probable cause fabrication of evidence as i cause of action and i realize that that case was settled at after the oral arguments at the supreme court but i think the principles are sound so with that i will mr hall shots of legibly improper conduct occur outside the scope of his function or role as a prosecutor and second did any of judge lewis is allegedly improper conduct occur outside the scope of his role or function as a judge and my understanding of the case law is that there is a a line that perhaps is not always perfectly clear but a line between a prosecutor's judicial activities working with a witness and what the court described and i think reason over as police work police investigatory work certainly the plaintiffs in this case cited a number of cases where prosecutors have played an active role in the true police investigation of cases and as we argued in our distinguishable because the prosecutors there were truly on the ground interviewing witnesses not at the stage of presenting the case the grand jury but at the stage of trying to identify who the suspect is and whether or not the case should even make it to the prosecutor's office in the first place in this case as i understand the record the only evidence that even plausibly shows that mr hall show off you know engaged in either evidence suppression or the creation of fals evidence we certainly don't concede that but as i understand the record all of that activity occurred once the case was read to be presented to a grand jury and that is now under under myers presentation of the case to the grand jury is sort of classic immunity i'm not aware of a case that specifically addresses that but i would i would argue that preparing witnesses for trial certainly falls within the scope of prosecutorial immunity and presentation of the keys to the grand jury falls within prosecut unity and that first set of cases the presentation at trial the courts are recognize that not all prosecutor work takes place in the courtroom there's plenty of preparation and preparing witnesses for trial is essential to succeeding at trial similarly preparing witnesses to testify in the grand jury is essential to getting an indictment and so i would argue i'm not aware of a case specifically on point but i would argue that the principles of those two sets of cases dictate that preparing a witness for the grand jury mr woodworth claims judge lewis took and the broad claim that you know judge lewis acted as the prosecutor i'd like to address the specific actions that judge lewis literally took because i think the second is more of a rhetorical turn over and control the grand jury now whether or not judge lewis did so for improper reasons or in it legally improper way separate question from which function he was engaging in and i think under missouri law and we  a statute in our brief that i can give you that under missouri law it's quite clear that judges have the authority to do things like that and therefore it's functionally judicial regardless of whether it was done improperly with regards to judge lewis interactions with the elected prosecutor mr roberts again this is a situation where there was a case essentially before the court a potential grand jury prosecution and the judge met with and spoke with the elected prosecutor not sort of entirely outside the judicial process but with regard to a case that was potentially pending before the grand jury and so again it may have been an improper communication it may have been a communication that ought not to have happened but well so it was a that's a fair question and it's not a phrase that comes from a case and i acknowledge that  in terms of a grand jury it's unlike a case where you know there's something on file and  retreat from that phrase and try another one judge lewis had this alleged conversation with mr roberts not in his everyday life but in the context of  trying to interact with the prosecutor regarding what might become a case and so that's again somewhat in our  i would say he's not jumping into a prosecutorial function because he is not himself bringing charges he is not himself deciding whether or not a particular person should be indicted he is sort of interacting with the case and i think that to me that's his i think clears argument for this big sort of assuming the prosecutorial role theory but again in that case the judge actually wrote out the charge is filled out a plea form and in this case you know judge lewis did not present the case of the grand jury he did not instruct the grand jurors to return an indictment and in missouri a prosecutor can file an indictment without a grand jury immunity for bringing those charges and suppressing evidence and the other allegations here bringing in that absolutely immune intervening person would would make this case different from lopez i mean judicial immunity obvious reasons but it's important because judges need a degree of leeway in making decisions such as appointing a special prosecutor or appointing a grand jury for person without the expectation that every sort of unhappy litigant at the end of the only based on the factors that we're discussing yes i can't speak to i'm not aware of anything in the record i've not discussed the issue with mr holeshot so i don't know why he chose one rather than another but i'm not sure that it should be held but i think on review of a summary judgment order i think you can give plaintiffs  here i'm not sure it's clear but i think you can give plaintiffs the reasonable inference that when presenting to the case the grand jury mr holzschuh off knew that that fact if that's how i read the record as letters  lewis letter yes on the lewis letters and i think that would be the principal portion of the record that would support that and i'm trying to search through my mind of what the other evidence on that letters my understanding and i point out the lewis letters now my understanding is that the lewis letter to whole show off at least a jury could conclude it included as an attachment the roberts hatch that's my understanding that's my understanding yes so i would say that's a fact that does it does not cut in our favor but i don't think it  a cases cited in myers presentation of the case to a grand jury is squarely within the scope of prosecut i'd like to turn to one point that mr mr ramsey made during his argument and it relates to the allegedly improper ex parte communications on the part of judge lewis and i would just point out at the judicial conduct that mr ramsey cited and he described it as such he can and that applies only to a case pending before the judge and so i think any violation of that canon inherently has to fall within the judicial role and because any any conduct in conjunction with a case pending before the judge falls within the scope of judicial immunity and so i think that yes i do not have the number here that holds that and i think it would be number one i think there are there could be difficult line drawing issue there but second judges engage in conduct that relates to sort of not yet pending matters i mean convening a grand jury is an action that does not relate to a currently pending matter and yet it it is a judicial function and it has to be and so i think conduct i mean all of the allegations that me not yet pending case is conduct relating to whether or not the judge would convene a grand jury and under missouri law a convenient grand jury is a plainly judicial function and so i think i find it hard to the actual rule from the code of judicial conduct the words used is impending no i'm not sure that that's actually been defined but it seems to me to be beyond pending and would encompass the circumstances here i believe that mr hulshof and one of his depositions a good knowledge that if the word impending would holds off after talking about the crimes that were to be charged in the statute of limitations that would apply to those charges he states we could wait no longer for mr roberts to act now i think it's a fair inference from the use of that word we that he intended to  he was referring to himself and to mr hulshof which would raise an inference that they had had many conferences before all this came about and about the details of the case and the problems they're in and the problems with mr roberts and if if if judge lewis if if that rule did apply to him even before there was a pending proceeding then he should have removed himself there would have been no grand jury there would have been no appointment of a special prosecutor there would have been no  influence brought to bear on mr roberts and mr roberts who i believe testified at the hay vs corpus hearing and in other areas there are other documents that support the fact that he did not believe there was sufficient evidence to charge mark woodwor us i believe it would be the the presiding judge in that circuit which would have been judge lewis now i suppose under the the way i read the the statute there wouldn't have been anything to stop mr roberts from going to any judge in that circuit and saying i have a conflict of interest would you please contact would you appoint the attorney general or under missouri law a judge also has inherent authority to a point a special prosecutor of his own choosing it doesn't necessarily have to be the attorney general's well i guess it's kind of like a prosecutor that fabricates evidence before anything ever gets going and then tries to immunize himself by presenting the evidence in court or well  a seven circuit case you're not at liberty as a prosecutor to go fabricate the evidence before trial and then think that by presenting it it trial you have therefore avail they were i mean any time that you look into a matter before you bring charges i mean he doesn't like they said they didn't apparently they're taking the position that they had no idea who the suspect was when all this went down i think the fact there are certain facts that that where against that and i think there is a matter there are several matters that are facts and controversy that summary judgment was inappropriate the fact that there was no particular person that was to be indicted for example there is plenty of evidence from which you can reasonably infer that there was a particular person there were the letters from jim johnson to the judge there was the fact that there is a reasonable inference that judge lewis knew all about what was going on with this private investigation that his personal attorney was involved in  i don't think it takes it goes beyond mere speculation and then to consider that he appointed his personal attorney to to preside over the the juvenile proceedings and he he had been the attorney for the daughter of mr robertson an order of protection proceedings all of which were some of that was brady violations and found to be so so it's a record that is just about a