call the counsel for case number two i see him as rudolph so very good if the other judges can see mr marson i think we're ready to go mr anderson yes i'm here can you see mr anderson judge i do not have video on my  will hear from you st thank you please the court counsel thank you realize the opportunity to present an oral argument this is an extremely important case because it's a tragedy what happened here was that oakley and us are spen twelve years in prison for a crime he did not commit he was of course grain corp indicated in his latest hate us that there is no reasonable jury that can find him guilty the reason he spent those twelve years in jail was because of the reckless investigation performed by the defendants i want to start with this there are three different standards of judges like and in our opinion did in correctly the st one is important because it was a stay at least in  wasn't any case before two thousand well the case was after two thousand but specifically indicates that it was a clearly established in the six and the kids and we mean the mistake  piecemeal in isolation and did not put the pieces of the puzzle together there are numerous pieces you have to put together to fulfill that to tell you the circumstances which is exactly what was said larry for court of appeal three standards were missed by a judge by ken and as result there should be a reversal because he did not correct standards in three different areas and you don't even need it in three areas but you need it in one of them and it is no question that he is the wrong standard each one now this is a simple case and i know it seems complicated because he spent twelve years in prison it's a simple case because it was a car accident case involving a corvette going down the road and there were three eyewitnesses that he already knew and they all they were very specific about she her and a woman it isn't negligence to do that he then did not provide that there's no question this isn't just a necklace this is going to gross negligence this is an absolute intent to indict somebody and here's the reason you know oh she's dead you could only charge a live  evidence all they did was i think i'll change it to only angus or dr now he's got twelve years in prison for something he didn't do if you put all the things together you can't you get three witnesses to begin with you lied  and i said it just wouldn't concern you if somebody is in so i assume evidence any evidence then they go forward and make tamper with the evidence and then use it anyway and you  one hundred thousand dollars so we have three witnesses we have destroyed those we have tampered with evidence we have a multitude of improprieties but the worst problem is lying about the witnesses and continue to line throughout all of the proceedings that there was there what no one was saying it was a woman or a man that's an absolute lie that sent this man to jail and there's no question that that was on the passenger side and and after came out it looked like on the door was open it was all about drivers i mean i understand you're saying there's no evidence but there it is abbott adds that he was driving it this happens to be circumstantial evidence to the hospital just as i only have three minutes left and i preserve it thank you very much you may thank you for your argument mr morris will hear from you st i believe for a to the amount of time for argument mr anderson and i are splitting i will focus on the allegation of reckless and best geisha the reckless investigation allegation is based upon the substance of due process claim the threshold question for this court is whether the behavior of ed fox was egregious outrageous and as such it could be said to shock to contemporary conscience to establish a violation up to due process based on a coleman gave a statement it's a trooper fox appendix one hundred and nineteen he says nothing about who's driving miss de laney fall or told him i didn't see anything my head was down he didn't take a statement from her it was only about five or sixty five years of saul after this accident that followed her and delaney now are saying that th ey used to hear she in fact it was fall or who said her testimony ultimately was i saw them in her driving in sturgis that was two hours before the accident holmes part he comes up with this idea that he saw a woman driving the car when he saw the man fly out of the top of the car the top of the car never disengaged but what's also really really really important here is that those names were given to the defense attorney who defended mr and gas or at the trial and those evidence you know the mr beardsley wants to cut mr arms that one thing before you go into ignoring the evidence and you address this business about whether fox wrote a report that identify the driver as a woman and then changed it and then you can come back if you want to thank you your honor i think there are three or there are four different document s the spin on it that those reports are that are changed that's been st of all there's a rough there's a rough draft of notes concerning the scene concerning what's going on then there's another report that he's got to give within thirty days and he listed missed family as the driver because she was the registered owner of the vehicle and his that investigation had been completed yet as the investigation went on and they started looking at all the evidence mistily was found in the passenger side she had severe injuries to the right side of her body the door was open mr ngassa was lange six to ten nurse she attended she gave aid to mr and guess her waist lying on the median and she looked over and she testified the grand jury the driver door was open how do you know as a driver door i could see the steering wheel so miss redfield was the st person on the scene saw the door open and going through is a process of fox he had he did his investigation so he did not perfect purposely ignore evidence he's going through the process he's making investigative decisions and mr mr angus are wants to ignore that  if get the officer is investigating the case has to investigate it and look at the physical evidence and the additional evidence that made them may be present and our position is they never told him that of being a a a a situation where it shocked the conscience the other thing i want to point out about the mr follower mr the trial counsel said that vehicle who was driving the vehicle and he said well what do you what did you see and he explained that he saw the red corvette the person who was driving had blonde hair trial counsel sa indicted and he was found guilty thank you so he mr morris he is the lenny fowler said at the time that she was looking down and didn't see the accident right correct and she's now saying apparently that she saw a woman driving now all the while i was going to ask does she deny saying the statement to the trooper at the time that she was looking believe when she was subsequently making reference to seeing a woman driving she's talking about two hours earlier in sturgis about the sturgis i think it's pm they could have changed drivers ok thank you for that answer mr anderson we'll hear from you thank you your honor for police the court the consul my name is rob anderson i'm here representing keris one of the apple lease who asked this court to affirm the district court's dismissal of all claims against him which were asserted in the underlying acts the district court did that and we believe was proper and should affirmed st the circuit court the district court did find that the circuit did not recognize a claim for a substantial due process violation arising from a legit reckless investigation in the year two thousand and that was  contested at the time by mr and guess or even if such a right was established and we agree with the district court that it was not here's mr kira's involvement here was limited to supervision he was not directly involved in the investigation other than actually being out at the scene at the time shortly after the accident happened controlling traffic this happened probably read during the stir just by crowley there was a huge crowd out there there were a number of law enforcement people mr sergeant k restore ect to fox his subordinate took to contact and talk to witnesses as his part of the investigation and that's what was done mr kerry's to not do that he was not directly involved there can be no responded superior liability imposed on sergeant dearest because of this the standard to judge police conduct in regard to this c i think still in there certainly a distinction between negligently ignoring and i think there is a distinction between purposely it recklessly in this case there there was discussion between mr fox and witnesses there was as mr morse pointed out consideration of a multitude of other factors there were no i'm the best occasion was i going to very few witnesses said they saw anything and so i'm of them who did now say they saw something different the physical facts of the accident were were such that it would i think lead a reasonable officer to believe that mr and guesser was in fact the driver of the car but i think there is a difference if the as as mr beardsley agreed and as clearly noted by the circuit previously this is this is a question of watch for the court whether there is a substandard due process violation and not for the juror and what do you base that on that seems to be an interesting question whether the judgment that determination  based upon their own idea of the conscience whether they look to it contemporary community were unsure i think they look to the contemporary community standard but it's their decision and it's  want to point out very quickly we cited a dissent in our brief that should have been should not have been cited it should have been the sacramento county versus lewis case which led to the ultimate decision by the circuit taro versus larsen which process violations substantive or procedural on the part of in our estimation and bia on the part of mr fox or sergeant keris i want to talk briefly about the failure to train and supervise claim because that's a claim made against my why it i think it has to be analyzed in light of this circuit's decision and wires shane and other cases mr trooper fox had been trained in the air force as an nothing to indicate that mr fox needed additional training and we don't believe he did there just isn't any evidence that would support a failure to train a claim against  there's also no evidence to satisfy the you know the very stringent burden of a failure to supervise failure to supervise play requires showing that there was a pattern of unconstitutional acts by a subordinate which must be persistent and widespread deliberate indifference or authorization of those acts by the supervisor i e mr ayers and failure to take remedial action there is not a shred of evidence in this record in regard to any of those call any of those claims nothing would satisfy the criteria for a failure to train or fail or to supervise point i want to talk briefly about the physical evidence as well in terms of stopping the storage of the car a brady violation in order to be actionable exists when there's a reasonable probability that says that this evidence in question if it had been available would have produced a different result there is no indication in this record that that's true the only testimony about what car could have or did show or did not show was from an expert retained by the prosecution who said the blood blood spatter or blood evidence here wouldn't tell you anything because of the nature of the accident he did find a hair follicle which he couldn't test because there are hair there was no follicle there to test he said the blood spatter evidence would not give you any indication who was driving and who was not the way they knew that had left a considerable amount of blood in the car but of course that was on the passenger side that's where it was resting in short none of the standards and none of the cases from the circuit or others which have dealt with failure to train and supervise would find why ability sargeant a risk in these circumstances in fact very very many in which qualified immunity has been granted to the defendants very many of those cases show a much stronger argument it dition the course further aptly played out isn't that a dispute a fact and don't we need to take all the facts in the white on the player site absolutely and the funny thing here is that we have absolute sworn testimony be greater rate for the use of witnesses for the st question that we can talk about all the other facts the fact that it was a store probably the fact that pieces of witnesses the person standing on the interstate actual and drug this is not about what color hair she had they said woman she and her as a result of what they did this minute spent twelve years in prison for something he are right thank you all three counsel for your arguments the case is submitted