we seek interlocutory review by this court using what we would characterize as the appropriate standards to judge the pleadings as they stood before the district court and not let edition or facts and over i think you do ron i think st of all this circuit has addressed in many prior cases you know law kotori review at the motion to dismiss stage using what we're asking which is the appropriate standard to judge the pleadings  circuit has determined that factual allegations maybe on your show on a matter like that the legal standards looking at those allegations is the appropriate way to judge them so we believe clearly that will immunity issue which is a clear legal defense which is to be judged by what is pled about the actions of the prosecutors is certainly appropriate for this court and this court has looked at it many other cases so i don't think there's a need to look at the filler decision or to be persuaded by it i think there's some distinguishing factor was in a very agreed to support a conduct at issue there was a finding of misconduct an ethical violations in the underlying matter the pleadings were one hundred that support it so we don't believe filler applies and we believe this circuit's precedent in dealing with this in this issue on a marketing review allows you to hear it but you really need to look at the face of the complaint i do  e to ascertain in unity we're not we're not here judging the sufficiency of the pleadings i agree i absolutely agree and we think the district court did not do that we think the disher court went well beyond d what the pleading standard say look at a set of well pled facts look at the only allegations in the complaint that's not what happened i mean you can find in that opinion of the district court frankly fiction about things that had nothing to do with the allegations and so our position is frankly looking at the record and the timing of the initial order on our motion and the opinion you should which the court may have noticed is nine months in decision and it ended up having to create facts add facts to get to that conclusion so the process used by the district court obviously were attacking and believe that was inappropriate and and went so far as to not do what you just said the court should do just look at the allegations and so that's all we're asking is do what the original standards required the district court to do and look at the immunity defense based only on the allegations and get you to that specific point if i may then the that the immunity defense as you obviously know is critical it prevents parties from having to stand trial and these are parties who request and appreciate that this court needs to do a meticulous review as the credit decisions of the circuit have acquired these allegations really are quite interesting when it when it distinguishes between district attorney olson and assistant district attorney martin there are virtually no allegations at all against a sister do d district attorney martin no facts no indications of any conduct here gauged in whatsoever and when it comes to district attorney olson there's just a couple so our position is only set forth in our brief that it's important to look at each of the actions that issue because you know the functions of the district attorney service what is to be of assessed the full role they play as advocate is to be assessed district attorney olson is is mentioned in very few allegations and again mark and virtually not even listed in the police and yet here he is in this case trying to say why am i here why should i stand trial as to olson as to  allegations and i think it's critical to look at each of the areas the functions where they claim there was a an appropriate behavior of conduct and those go into the various standards that you'll have to judge this case but i don't think we have disputes about the immunity is the defendant's burden of proof to show title meant to sovereign immunity and did it it's not before you have to prove that only qualified immunity i do agree with that but we can are are asking this court to to look at what that complaint says well it took to the district attorney's only and particularly district attorney also because again martin is bunch we not even mentioned ever and when you look at that when we look at what it says and let's look at the  important look at the whole section on that on that area it lists four or five different activities that the police did independent of district attorney alston took one statement one year ago after the event took a nd statement four years after the event took a  arranged for the hypnotist at the local police station in indiana and at that point after that statement was provided to as a group that says mirandized the defendant i think it's an interesting issues of qualified immunity i think that might apply for the police i think our opposition is clearly no it's not enough of a range and personally that up local police station which interestingly the district court then said oh it's abruptly station so that has to be the county which is the we don't believe that's enough if that's all he's doing is arranging something that has nothing to do with merit substance it has nothing to do with the advice the questioning so that to us is particularly  i understand your argument regarding the us explain why it has no relevance at this stage because of that the sole word that relates to olson is our ranged this at a local police station the whole  that has nothing to do with substance of collaborating or gathering evidence this statement from mr elderkin was taken three or four times already and then at best i would argue it's an evaluation of the circumstance of the statement or evaluation of what he looks like as a witness it doesn't say he said one word it could have been present in the facility why should he stand trial for that for sitting in a police station while this happens when all the other activities and there's a lot of allegations here about all the state police conduct multiple multiple paragraphs about specific acts of a state police that told little arrangement of the event at a local police station even if you did it because it's combined so it's not even clear that he saw be responsible for that our position is that's just not an discovery fleshed out it may or may not but i don't think it needs to get to that point because we believe that because the standards say you just events jailhouse informants taking a confession taking statements of these two young women that were at the scene all of those there's not one mention of mr martin even having anything to do with then given the timing here that is it's before probable cause it's the same i get there there's still a narrowing in on any suspect i and i that prospectively disagree because i don't even think that the use of the words participated in any are in the interview the words are not there i get it that that's what the district court that made those conclusions that he generated a statement participated in taking the statement that's not what it sounds it only says he arranged for it to take place in the local police station after three or four different statements were already gathered after the colinas enlisted big hypnotists all of those things occurred st so you're talking about circumstance where at best the evidence gathering was the traditional function of the police and done by the police whereas this is a perhaps a valuation but even that isn't what it says but i think that's more likely from sitting around all ranging a meeting at a place of her meeting it doesn't give the volume of allegations that relate to the police activity and attribute those to the district attorney so you know we're trying to make sure that the pleading standards are appropriately used and we don't believe the district court did and we also believe they took great leaps and jumps in their conclusions and that's seen in a number of issues a couple of which we pointed out including that broke police station location including a half page footnote about whether t h c was really p c p i mean just went beyond the cause affidavit being provided by a court after a proceeding before that court and then does not include that mister olson was the initial interviewer the police did an unusual interview so again this isn't the gathering of evidence stage where i could appreciate the court's assessment that qualified immunity might be the better avenue to to judge after additional facts this is other activities have occurred it's post charge which all of the cases say it is a distinction and that it is also one that olson was not the initial or even primary person per the allegations in the complaint which is a paragraph seventy two dollars and so all of this was as the court has said in other cases post charge which is a critical time for which the torch of indicated the immunity for prosecutors does apply so your honor we think you know i appreciate that  that there are arguments to consider but when the only allegations against both the district attorneys say that in a very conclusory way they may have known for any alternative  misled them and hid this from the court counsel jury or when you is that that demonstrates the lack of detail that is necessary to show the cross accusers action rather the focus of this is on the police action where the where the court's assessment about qualified immunity makes far more sense to just seeking a very clear and detailed review of those pleadings particular to the actions of olson and martin and certainly with the appreciation that martin's almost an us to review we're looking at given the allegations that appear on their face than the nature of the kind of it's described that would qualify for sovereign immunity i do and i guess some perhaps i'm being imprecise by saying rip to resolving that question or that comment but the point is these allegations have to be taken in the whole context where all of this other police action occurs very specific as to defend oakland stephy defendant was very specific took this did that gathered the evidence why not give the police work and one or two little words like arranged a meeting or will present for something should not be enough when comparison that's the standard we should you know it's just that there's not there's nothing there to use to say immunity does not apply because most of these events most of these events are after charges and in a state of the case where limited amount of allegation coupled with the understanding that there was more specificity for other acts therefore there is no x here allows you to say that doesn't rise to the level of no question of whether they can show right now that as a matter of wa they're entitled to absolute immunity on the pleadings so i'd like to drill down in particular on the elder can interview which as such house intimated there's no question under any statement and the allegations in the complaint as expressly put are that district attorney also not only arranged but was present for and participated in directing this hypnotist who was actually a high school english teacher to use undue suggestion to elicit this statement elder can and who would they knew to be wholly unknown liable individual he had been in a psychiatric ward he believed he was from outer space and contrary to miss jones argument the standard is not just the wild  it's also all reasonable inferences from those facts and there's no question that we're talking about district attorney olson being president from day one with the police building this case it's been a cold case for years now he's in the room with the police officers and  from that of the troopers the troopers had spent many hours conducting their interview before the prosecutor was called to them to then take yet another statement so that that's not gathering of new evidence that plea we're assessing whether this could be a potential cooperator and the the complaint itself alleges that the purpose of that was to support their theory of the case that that police had conducted an interview on the day of his arrest and the day after the arrest it's that district attorney also is there again alongside the police officers conducting a custodial interrogation where they're listening a different statement as a statement but more strongly feeding facts to death as well go to get him to give a new statement that tracks the statement that i would like and had and get then and so you know this court as well as the supreme court has been clear that the probable cause line timing is not dispositive so  role of prosecutors in developing a theory of a case than a strategy to support it there's a distinction between a prosecutor am organizing or evaluating evidence or meeting with a witness in preparation for the grand jury where the prosecutor you know is going over what the witness is going to talk to fight to and maybe there are some hints being given there's some back and forth here we're talking about a suspect who's under arrest being historically interrogated at the police station in order to obtain new additives this is the building of a case and we think it's crucial here in bat also and martin knew that there was no probable cause that the entire basis for probable cause also absolutely knows that there is no there's no basis no person a reasonable caution could have believed that eleanor can statement was a real connection between mr fogel and the crime and so regardless even if even if the court thinks that there is probable cause or that that's one reading of the complaint buckley is equally clear of at the existence of probable cause is not dispositive it doesn't immunize our conduct going forward so really the allegations here that  read that it's the fact that i've been a prosecutor is eliciting even false statements i it's not sufficient to defeat sovereign immunity if i the conduct in which they're engaged falls or at a point in the proceedings where it's tied up with the role of the advocate with the with the judicial process itself when when we're here with a  finding what why aren't we squarely in the realm of a judicial process where under burns the fact that as as you highlighted the allegation say that the testimony of the key to living is false  still doesn't defeat sovereign immunity point your honor add with respect to that it's it's clear about if there's some question right these are fine distinctions the supreme court in the circuit has acknowledged time and time again that these are fine lines were drawn that there is some gray area in saying exactly when the prosecutor is acting as an advocate and when he is acting in an investigative function and and even when the is actions are occurring at the same time for example  the supreme court is still parsing exactly what wall the prosecutor is playing and so here if there is some question which because this is such a fact specific inquiry it's often difficult to dispose of at the at the motion to dismiss stage and that's why this court and you are as in wilson in minchin ski in kuwait he all of those cases are at a motion to dismiss stage and and the circuit has said every time if there's not a clear answer on the face of the anything tends toward being more police like activity it is the traditional role of the police officer to interrogate a suspect to take to take a confession and so the extent that alston is right alongside the police officers engaging in that activity here is taking a statement from the defendant a confession from the defendant himself isn't there a difference between the the evidence gathering and the the purpose on its face  to give a a deal to mr fogle the allegations here at this stage are that he used improper techniques alongside the police to take this custodial statement from mr hubbell so that is the police function of of collecting evidence or in this case we'd say fabricating evidence and that's not entitled to absolute immunity but certainly if there's any question then you have to take defendants at their word applying the appropriate standard when as a question it prece the discovery for development of the facts the answer is not to say that you know because there is no reason to say there's not absolute immunity therefore it may have absolute immunity it's in fact their burden to show they're entitle on their feet use of the complaint and i think you are this is particularly instructive in this respect so in your of this one of the allegations was that the prosecutors had fabricated a confession from mr doris and the court said and there's only one there's no information in the complaint about when this was done there's no information about how it was done in fact there's one paragraph in the complaint that mentions mystery artist potentially confessing to a prison guard and yet the  set in that case we don't have enough information at this point on those allegations which could not have been more begging him to to say as a matter of law that there's an entitlement to absolute immunity and so they allowed the case to proceed to discovery and we we would submit that that is absolutely true here we have put forward numerous allegations about dependent also on an defendant martin's participation it's not true and there are no facts whatsoever alleged against martin in the complaint explicitly that martin  were giving advice to you they were they knew and were encouraging the police to go out and fabricate statements from jailhouse informants and we've also played martin's role in this conspiracy and it's absolutely a reasonable inference from the complaint given marginals and are working together prosecute this high profile case that there are two prosecutors in this office and the magnitude of this misconduct the fact that orson had done this fabrication without her can it absolutely we could prove in discovery a set of facts where martin knew encourage or permitted the police to take these fabricated statements from the jailhouse informants and that is the cantu and burns giving legal advice to the police officers and the court the supreme court and this court is clear that we're looking at the function that the prosecutor prosecutor directing a post or us interview by a police officer but the court found not entitled absolute immunity and the prosecutor has something gauging a post arrest post preliminary hearing where the allegations were that this evidence was fabricated from the  and i believe the th circuit was applying a functional approach and gensler and certainly it's consistent with all the cases holding that if it's not clear what will the prosecutor's playing there's no absolute immunity i think that justice scalia put it well in his buckley concurrence which is that this acting as advocate test is sort of uniquely harder in theory than it is in practice because if it happened cation is not clear that the defendant simply was and here all of defendants arguments have amounted to arguments on the facts it's not true that the present and we think one it's clear that if a police officer is conducting investigative work at the behest of a prosecutor as in burns as and guthrie in this court and guns are there there's no question that the or have been approved or they didn't know anything about it and they were misled absolutely i mean it's clear under federal civil procedure eight d that at the motion at this meeting stage we can put in the alternative and only plead to a certain degree based on inference there's a huge difference in the defendants have all of the information they they know the internal communications that they have they have the documents there is very little discovery in this what information we've had access to and that's why development of discovery is crucial here when the alternative pleading is that these defendants were involved world turned to flee they weren't involved at all doesn't say on the face  actions of olson and martin when they're in front of the court at the preliminary hearing we absolutely can see that those actions false as they may be are entitled to absolute unity but there is still strong inference from the fact that they're trying to cover up their objecting to any questioning about the true circumstances of what went on without a can so that they understand that they don't have a real basis for probable cause and this is a weakness in the case so in the same day they go out and they get the two jailhouse informant statements they tell the police encourage police to do this case is crumbling this fabricated basis for probable cause is gone and there is no other evidence tying mr fogel to this crime for good reason as we now know from d n a he's innocent but the next basis to clear that the prosecutors were involved as we put this whole conspiracy for fabricating evidence against mr focal i mean this really is an exceptional case we're talking about there's no dispute that he was innocent but he spent thirty five years in prison as a result of misconduct in this investigation and also in was there from day one he was there with the police officers taking this man who thought he was from outer space given numerous conflicting statements and using an english teacher to hypnotize him and the points of of information and on and response up mr fogle was determined not to have been involved in the rape which was the basis of the felony murder just by background to be clear in redwood in relation to the basis of the underlying conviction being vacated mr olson being there from day one is inconsistent with the complaint in so far as the year is detail about all the actions from day one of the police not actions of district also and certainly not actions of assistant district attorney mark the point of these two district attorneys being the sole two deejays in that county and therefore they had to acknowledge everything and work together on every detail these counties need people to cover an awful lot and there was two people in the office so making that inference i think is just an inappropriate but unnecessary and i think you look at the complaint you look at the allegations and so it's clear there is no detail whatsoever about any conduct of martin and limited detail about olson and and the court has seen looking even at the buckley decision looking at the heiress decision that in assessing information gathered by police  evaluating a witness in even obtaining some statements once a witness is identified a munity can still attach and that's the best the allegation says is that he was present or of ambiguity then we held sovereign immunity is not appropriate and it went back for more fact i knew for purposes of qualified immunity on certain points not on every point in your arse the j to conclude that sovereign immunity should attach with a motion to dismiss stage right and given what's known before discovery why can you answer your colleague's point why isn't what's what has been pleaded here sufficient to at least raise the question and warrant further discovery beyond a finding of sovereign immunity on the face of the pleadings because we think there is enough on the face of the pleadings we think  yours said specifically there were no allegations of those details of the district attorney's act relative to obtaining a pulse statement from a job as a foreman and it was after charge which is the exact facts we have here for us there was nothing   group together all of this evidence part almost all of which was related to the conduct of the police and say they knew or permitted encouraged or any alternative they were misled it's like throw it up in the end see what happens the function enough away from the activity of the prosecutor you have to look at it in terms of the timing the wall the playing the evaluation the effort to support the theory of the case which the court so eloquently pointed out th are all things which we believe support assessing that now and not letting what would be a less than full some pleading as to the d a conduct survive for them to stand a trial which they should not have