bridgeman spent over one hundred years in prison for murder which they're innocent all they are asking for is the opportunity to present to a jury their constitutional claims that cleveland detective advocated and coerced a false statement from a twelve year old boy business conduct happened to them because the city of cleveland absolutely failed to train its officers and failed to create policies to train officers in their obligation to disclose exculpatory evidence and in fact the city had an express policy telling officers that witness statements were not to be disclosed weren't there some other policies that the city had that could be read to clarify that particular i believe you're probably referring to a particular policy that a lot for your argument allow for the exclusion of all of this witness statements yes the policy i'm referring to is general police order nine hundred seventy three which the city's doesn't needed witness designated pursuant to rule thirty six testified that he agreed with our reading of that rule what that rule expressly stated was that there was certain evidence favorable to defendant should be disclosed but in bold capital letters it also said that exempted from that rule was witness statements given and so these other rules fourteen sixty six seventy seven seventy eight your position is they don't clarify that rule exactly in the city's witness ever time but also agreed that those rules don't shed any light on officers obligation to disclose and preserve exculpatory evidence in fact the only rule that mr tomba talked about at his deposition was will ninety nine and all that rule said was that officers have to follow the law he also admitted as deposition that officers were not trained in what the law was and in fact those rules the one sided by the city they all stem from one thousand nine hundred fifty rules manual that was adopted prior to the decision in brady in one thousand sixty three and so there is a genuine dispute of material fact as to what police officers were told at the time what they were trained at the time and it's certainly a genuine after enough dispute for plaintiffs spilled present their claims to a jury so that there was a different they are different but they're actually support each other because the rule the expressed policy the written policy one nine hundred seventy three size that witness statements taken by police are not to be disclosed at the same time the city did not adopt any written policies or adopt any practices that informed officers of what brady was of their obligation to preserve or disclose exculpatory evidence police were precluded from it's written it's sort of like an exception to a requirement yes it looks a little overbroad because the language that it was tracking from from from the was was not there but that there would be a policy the police don't give written statements to the prosecutors what could conceivably be the idea behind that kind of it didn't say written statements it said any it says the foregoing does not authorize the discovery or the inspection of any reports made by the prosecuting attorney or  agents police departments are his asians in connection with the investigation or prosecution of the case or of statements made by witnesses and so the key thing here so they use when you read that to tell police not to give statements by witnesses to prosecutors in general correct really yes on the stand why would you why would any any policy say what would be the conceivable reason for such i think at the time they considered it work product obviously that conflict a product by the by the policeman that you couldn't give to your own attorney yes can you explain that i mean i'm having trouble so myself back in one thousand fifty or so that just sounds like but can't  possibly police don't give information to prosecutors because it's private i don't know what the rationale was this over this total absence of a rationale suggests that maybe it's kind of strange to read it that way and what about this criminal sixteen  what are you reading conjunction with that doesn't that clarify what this one hundred seventy three means no because the general order only it just reproduces in text what criminal sixteen said and what criminals ru sixteen said was that evident disclosure of evidence favorable to defendant should be disclosed but there is this bold print exception for statements made by witnesses in tow so the written statement and so to be clear exclude the tory evidence can include both written statements by witnesses as well as oral statements by witnesses this is this court recognized this in malta on its recognized it in gregory spurlock a number of other cases the supreme court has recognized that other circuits have recognized  exculpatory statement that he vernon made to the check this in this case including detective story or was i did not recognize these people as having been participants in the crime and the people in the lineup he was referring it would also suggest that if it was an accusatory call the tory witness statement they were not supposed to give it to prosecutors well this was an exhaust passing strange you have to admit the exception though numerated things that the defense counsel couldn't quest from the prosecuting attorney and so one of the things that the defense attorney could request from the prosecuting attorney was evidence favorable to the defendant but this was an example of lie on language which he uses different from right yes this is an i'm so what i'm saying is that this exception has to witness statements only apply to evidence favorable to the fence the way to read the rule and the way a reasonable jury could read this rule and in fact the way that the city's designated witness read the rules this is exactly how reading it which is that officers were not required to disclose exculpatory statements given to them by witnesses and so armando claim encompasses not only this express policy but also the failure to train as well as the deliberate choice not to have a policy if any of the evidence on any of those three theories is sufficient for a than plaintiffs are entitled to have a trial in this claim in terms of the failure to train this court and the supreme court has recognized that you can have single incident liability where there's recurring situations for obvious potential for constitutional violations this case is indistinguishable in our evidence on them and i'll claim in this case is indistinguishable from gregory in gregory this court said that cities must train officers in their obligation to disclose exculpatory evidence and the evidence was exactly the same as we have here there was expert testimony we have expert testimony which this court also recognized in rousseau versus city of cincinnati expert testimony can a speech especially important in a fai to train case in order for the jury to understand the adequacy or inadequacy of training we also have evidence from the city's own witness deputy chief tomba that there was no training on the obligation to disclose or testified was that at no time between when brady was decided in one nine hundred eighty to the city even inform officers of what their obligations were to disclose dorian's and so if older officers were training younger officers during that time period they would not at bottom there's a factual dispute on the failure to train claim because we have differing testimony from detectives tell and turner as well as the city's own witness conflicting with other testimony from other detectives in light of the factual dispute we have to have a jury was all that question or third when i've talked a little bit about the express policy the third way of showing our claim against the city is that the city chose not to have a policy on the disclosure of evidence this was again testimony of its own witness gave there was no policy all of the detectives who were around during that time period testified that there was no policy on the disclosure  as far as and i'm going to turn quickly to the claim the qualified immunity issue as to that there is no real dispute from the individuals that it was clearly established as of one thousand nine hundred five that officers have the obligation to preserve and disclose exculpatory evidence under pile versus kansas which was decided in one thousand nine hundred two that case held that police officers who suppress favorable evidence and threaten witnesses into testimony bottom even if the court were to disagree with regardless of how the court decides on the claims against the city and detective story for the claims against the states have to be remanded because those claims survive under the court's decision  very unique case because it does involve the homicide investigation that occurred over forty years ago and that lead detectives in the case died long before the case was ever filed in fact the case is primarily based upon the testimony of edward vernon who voluntarily came to the police in one thousand nine hundred five to identify who the who the perpetrators of the crime were and then forty years later after forty years of silence he never told anyone that he had never witnessed this crime forty years later after all the homicide detectives are deceased he came forward to recant his prior sworn testimony and while he alleges that now alleges that two of the detectives terp a and stempel allegedly threatened and their estates whatever assets they had long been distributed and they have stipulated that they're not seeking any damages from the estates for their beneficiaries and briefly with respect to the estate defendants which make two brief points and then move on to the balance of my time to deal with detective story for one crab the scot that case is clearly distinguishable it's an unauthorized search and seizure claim in this case involves malicious prosecution and the claims for brady fault and state extra provers is why i get held that most of prosecution claims do not survive death and the crafty scot did not address that decision because it did not involve a malicious prosecution claim but that decision is control of lawyer for the states yes state's higher well actually we've been i've been retained by the city of cleveland to represent all of the individual defendants and the state defendants but so that's the key thing is the state defendants have now a doubt you and so all we're asking the court is to follow state x or approaches like in which is controlling ohio supreme court precedent on that question and even if the court were to reverse on to five ability you still have the he suffers from severe dementia and he's unable to respond to the accusations that have been made against him but i submit that there is insufficient evidence by which a jury could could hold mr stork are liable why is the fact that what about the fact that he signed the police report that had all the information and including statement that's being challenged isn't lies and out of well the trial court did address that question it goes to the elements of the claims one there was no evidence other than the all we have is that there's an absence of evidence of that would ultimately lead a fact finder to conclude that that is a knowing fabrication of evidence which isn't standard it has to be met so what would you have here is not a genuine issue of fact it's an absence of evidence in which you're piling inference upon inference in order to draw a ultimate conclusion of a knowing fabrication of evidence in which there's simply no evidence as to his state of mind culpable theta mind and to obtain an indictment there is no evidence that mr stryker had any communications whatsoever with the prosecutors who were involved in the grand jury proceedings or the trials in fact the evidence showed that mr vernon testified at both the grand jury and the trials and there is no accusation by mr vernon that detective story ever did anything to compel him to testify falsely either at the grand jury or at the trial did have contact with vernon that's right now so what we have then is based upon the inference that he was his partner you have attempt to make guilt by association and therefore pile inference point inference that everything that that is being alleged against evidence he had any communications with a the prosecutors and again the this court has time and time held including in the sonnets the jones case that you have to have proof of actual reliance there's no evidence that they the prosecutors actually relied on that march may twenty fifth report in pursuing either getting a grand jury indictment or and you can't fill in the blanks that's fundamentally with just the pure the fact that there's an absence of evidence and stryker is to as a basis for warning originally in the complaint and in the summary judgment motion before blow planes were pursuing seven theories of liability for purposes of the peel and what we're here for today we're rolling it off with the brady quinn because the other six claims the six by the jackson plaintiff and the additional unconstitutional lineup claim by the other two plaintiffs were either dealt in just merely a perfunctory matter man or in the  plaintiffs disavowed pursuing that case any further in their reply appellate brief on page twenty four footnote fifty third the other fact i want to point out as a context in which we're dealing with this procedure and that is at the end of the day would general police ordered one thousand dash seventy three all it states is what is this new rule of criminal procedure and how do we follow the process in the stating that police officers you are instructed not to turn over any evidence either exculpatory or inculpatory to the prosecutor and that is nowhere in writing in any of the polic an explicit policy to not turn over any evidence to the product there are exculpatory evidence to the prosecutor and on the other hand you don't have you made a conscious decision not to have any policy stating that testify to that effect second of all it's for this court to make the legal determination whether or not the policy is explicit enough for me to the legal requirements for him and no explicit policy claim well of chief if there's evidence of all he did not testify to that he testified clearly that all officers are trained to turn over all evidence to the prosecution not just exculpatory evidence all evidence to the prosecution in its how the the rules state are homicide detectives in the early seventies and in a both testified that they were specifically trained to turn over all evidence the prosecution awesome to witnesses the plainest brought in attempt to bolster their case former police officers tell and former police officer turner they both testify now we have issues with both of those was not neither of those were homicide detective so our one of our points is that they have no relevant or material evidence on the issue of what was done the prosecution in the important point when the important points the judge boyko noted in his opinion is this is an intentional act case and in a noted on pages either twelve or fourteen of his opinion that what was done or what is a good to have been done by the four was done in spite of any rules or training that they were given this is an intentional conduct so the rule going to said something affected thou shall you police officers that shall deliver all evidence exculpatory not directly to the defense counsel in the city because there is no private right of action under ohio law for indemnification thank you thank you sir never bottle in their argument and in their briefs the defendants focus on the facts and what they do is ignore the facts that are in the record that support the plaintiffs i will cite you to deputy chief thomas deposition that are one or two pages seven hundred thirty five to seven hundred thirty six where he agrees with our reading with general police order one nine hundred seventy three in fact not only did he agree with it that it exempted witness statements from disclosure but he testified that it does is not in effect today because today after brady you have to turn over all evidence to the prosecutor that is a genuine dispute of material fact based on the city's own designated witness brought in to testify about its policies and training acts of the dispute a fact with respect to what happened with eddie vernon the record could not be more clear eddie vernon testified repeatedly that he told stempel and story that he did not recognize anyone in the lineup who committed the crime meaning ricky jackson and wiley bridgeman stempel testified at trial that he and story corps conducted the lineup he testified that he brought in prosecutors don't also dull but also testified that his deposition that he relied on all the police reports and everything that was in the file to initiate the charges which caused the prosecution to be commenced in this court on remained in sanders versus jones said that false police reports that set a prosecution in motion and this is consistent with king persist harwood miller versus maddox mills versus barnard all of those cases say that fabricated evidence and false police reports that initiate a  u that doesn't why doesn't that suggest that rather than say the case isn't right say that this isn't broke but it is properly brought by these these plaintiffs well or does it i mean that and that i guess what i mean it is you know this court does have to defer to the i the law is the law this court has to defer to the higher courts interpretation of ohio law and and it was a case of first impression and a district opinion is the only opinion out there we still think that the best larssen this that that law is wrong and that we should hold it just in case it gets changed well you should say that it's not right in this case because there's been no judgments and how it's not ri e if under the law as we presently inter find the courts to interpret it these people can't bring suit that's not a ripe case that's a case that you lose right i mean i let's hold it until the law changes or is there some other way in which it's unripe it's not because there hasn't been a judgment yet and you know i agree it's a it's an uphill climb for us on that claim but i will say and this is to respond to mr funk the question of indemnification and what happens and whether we can collect and you know after we get a judgment if we get a judgment from a jury is not before this court and so the only question on the survival issue with respect to the states is whether or not the section one thousand nine hundred three claims survive the deaths of turf a farmer and stumble and they clearly do under crowds versus scott and so that is the only question he says you've agreed that you're not going to collect from those people other than through indemnity correct and if you can't collect through indemnity then i guess there's desirability to collect along that route and so on having the lawyer for the for the estate says right well there's the possibility of a seems unlikely since it's the same lawyer the city is paying for them so that raises a conflict issue as well but that question is not before this court thank you thank you counsel the case will be submit