miley jones four then district attorney now court a common pleas judge nancy vernon and fayette county i appreciate the opportunity to present the case even under less than typical circumstances i hope all on the no doubt from earlier with and addressed as regularly as demonstrated frankly by two opinions issued just yesterday covering the topic i plan to address those substantive issues in this appeal thank you i'll start with qualified immunity this issue this defense says the court is familiar protects government officials from being held liable when their conduct does not violate clearly established rights place to start because you can take either prong in making this assessment relative to the two issues that we focus on the st of those two is the bite mark evidence and actually when you look at  the trial itself the bite mark evidence was presented in trial it was raised in this can't complain to the context of trial and so really there is an argument that prosecutorial immunity would it and part of that claim was in fact dismissed by the trial court here but to the extent it's been raised by us on a qualified immunity analysis i go to that point st our position is that the if she was not clearly established at the time that the use of this kind of evidence would violate any constitutional right to charge those jones let me just interrupt you before you get into the merits of that because i'm i'm wondering whether the county waive the issue because i'm looking at appendix one hundred and thirty seven in the brief in support of motion to dismiss as given that this was plaintiff's rd attempt to set forth viable cause of action these claims should be dismissed with prejudice and plaintiffs should only be permitted to proceed on her malicious prosecution claim against vernon for her alleged involvement in securing bite mark and her supervisory liability claim against the county that seems to be not just a forfeiture but a waiver that's that's an intentional relinquishment of that argument is  misunderstood your question that does not mean the judge vernon waived it then no no i don't think she waited at all i don't think she waited at all if you look to the arguments on  was challenged and was rated th in terms of indicating in the brief in the arguments that we felt that the and was in fact dismissed for the most part the underlying case but to the extent the notice of appeal addresses qualified immunity generally and the order from which the appeal is raised indicates that the bite mark evidence is evidence that should be included in the more specific pleading of the next amended complaint we believe that issue is clearly preserved so taking that backwards the order from which this appeal was raised indicated that the bite mark evidence is evidence that could be addressed or needed to be addressed by my mother and her nd about the complaint and that so in looking at that evidence there have been cases in this truck even that have said that this type of evidence is bite mark type evidence bible evidence why more presents no case law relevant to the time period to show it was not viable that was st presented utilizing information from the criminal trial where later in two thousand and fourteen or two thousand and fifteen the expert walked back the decision based on by evidence and therefore under that truong of saying whether at the relevant time the law was clearly established we believe the records clear that it was not clearly established back in the three hundred and four timeframe and that any reliance by the district attorney at in the september two thousand and eighteen order the claim against was dismissed without prejudice and with leave to a mat and then in the april two thousand and nineteen order the nd amendment complaint alleges investigatory activities by district attorney fernon to support argument as to those two points because i think those two vital points here as to whether or not these claims are allowed to proceed both the prosecutorial side and whether or not you raise the qualified immunity argument as  and nineteen order those determinations they more clearly i would say it with more detail by the trial court are now in our view appeal the differences between the st amended complaint and the nd amended a complaint on of these points that are relative to both defenses of immunity are very in very few paragraphs and so when you look to the ability to say that that st order was not final as all of these points and for all of those reasons we're going to look at anything more added to the nd amended complaint to assess the defenses our position is the art remain arguments that the facts as pled in the nd amended complaint are still not enough and don't change the character function argument of the in relation to the claims such that the immunity still shouldn't be a political and i can get the votes with effects on the cross control immunity but i just had been in the qualified immunity category your your main complaint though about the court's opinion is that she lumped everything together and said everything's investigatory and everything should go forward and you're saying no a lot of it prosecutorial should we not send it back to the district court and say please parse out all of these different pieces of conduct and where they conducted by vernon or others and and decide which is prosecutorial and which is not and whether qualified that could work so she really started in the favor of the immunity defense and then gave leave to say you can you can add more if you want i think that i can get to a point i think contributed to what you're asking us to do apply based on the limited changes that were made to the nd amended complaint so we think both defense and we're still viable to the specific claims for this court to be able analyze that i do not agree more specific delineation of how each of those allegations were a were not deficient would have been useful yeah i mean it's hard for us to review a statement by bite mark evidence so she's raising for example an area where we think you can now come in and make a determination on the qualified immunity argument that even though she didn't delineated on that point it  clear and particularly direct because there is no rd circuit law establishing that a district attorney could be liable for failing to intervene and have what might be characterized as a reckless investigation your court's decision in the genetic a case made clear there was never really reckless investigation claims that could lie it isn't a case where there's a there's no knowing violation of the law by the district attorney here there's been n after the fact right she did and it was an eighteen or nineteen decision and frankly your your court's decision fogel that even go to that point so i still think that's a viable argument that there's no can see the arena and is appropriate for a do over in ash and some light of the guidance in fogle but you would like to knock out a couple of the clear claims for example we in the most sort of notable one is this failure to intervene claim is that is that your position your honor i don't think i'd go so far as to say i concede but i would agree that you could knock out certain claims i still think you can make the assessment even under local decision and other issues on the under qualified and prosecutorial immunity but there's certainly some that are crystal clear where others i think have  know strong argument but at the very least there's agreement i think that the district court did not engage in the parsing of conduct with choir it in order to separate out what are the prosecutorial actions or zend and what we're investing in tory actions are events i certainly would agree to that we're trying to present that and and good morning your honor may it please the court my name is joe public and i have the pleasure of representing the apple e in this matter crystal armor as you know chris the was wrongfully convicted for a murder that she did not commit and was imprisoned for more than eleven years before with the assistance of the pennsylvania and of his project and others she was finally gone aerated and release  judge vernon's statements made to the to the jury during closing where she you lied regarding jailhouse snitches and not asking for anything in think that our petition and did the district court address absolute immunity in a nd opinion not all that issue and those arguments regarding absolute profit or the immunity were raised only in the st motion to dismiss briefing they that had been properly raised in both motions to dismiss all that was that allegation was not out it and the nd amanda complained yet that there were i agree with ms younes that there were a finite amount of additional allegations in the nd amended complaint and they largely related to additional and i think a tory opt out part and that we learned about in a police report that was attached to one of the other defendants motions to community to certain allegations what she's saying is that the motion to dismiss stage viewing the factual allegations in the light most favorable to miss weimer that you have pled enough  right to be able to be immune from having to go through the civil litigation process if in fact the constitutional violation he didn't exist or in fact if it wasn't clearly established i think qualified immunity  fighting the russell opinion and it's and that is what judge kelly this is saying here is in order for me to make a reasoned analysis of whether or not you're entitled to qualified immunity i'm going to need the benefit of rights as she understood them at the time and we're not going to be able to know that until we can develop that further in discovery but at this at this stage taking our factual allegations and the like most favorable to them as weimer we've we've established enough that she's done enough investigatory work and helping them police in this reckless investigation that we should be  apply at the matter of law what she did was make it back or will determination that are factual allegations pleads sufficient investigatory acts that we are now entitled to the discovery that the community issues often require at a summary judge that if you make the decision that qualified immunity does not apply at the matter of  law then i think that issue was properly before this could potentially probably before this court but right now it's premature because you have not made a qualified immunity decision on a legal issue if it is we explain to the district court live proving a criminal complaint is prosecutorial and therefore mean up to the extent that the court is inclined i don't know that the court held that that approving and that would also include reassessing the allegations regarding the jailhouse snitches because i think in light of the focal judge barnes actions in relation to those jailhouse snitche reasons that were suggested at least argued by the questions from my colleagues about the absence of any sort of action that was controlling the behavior of the murnane on that issue i think the failure to be in plan is good at the hand on the reasonable as of her actions in light of what vernon knew after time you need he clearly established law saying that she must intervene and i don't see any can you point any anywhere well i mean just the constitutional protections that are afforded to miswire her that she's out of the constitutional right to be free from a reckless investigation or to add her rights you know trampled on by people that are soliciting profit reasonable district attorney should have known be it be it then word two thousand and one you're making a policy argument that many agree with that if the opposite of what the supreme court has told us to do secondly defining the right at issue at too high a level of generality saying things like due process equal protection etc and the court the high court as is requiring a case on point or pick i think it's reasonable  supervisory liability claim what remains i'm not sure i understand i bought it earlier in the argument mr jones said that she was withdrawing the appeal related to that claims i'm not sure what you're asking i'm just asking whether they're not withstanding the challenges concession what remains on the vine if you want the land it's a claim against fayette county or and or a claim persons who were wrongfully convicted and imprisoned based upon these you know deficient policies and practices that allow their you know why they're there they're law enforcement  officers and district attorneys to you know behave in this manner and say should be held liable for their actions because you know that there are responsible for those officials actions and their policies in the procedures that because she was the district attorney and as the district attorney you know she was directly setting policies for the for the county office the district attorney's office and the factual allegations show that i do want to point to one point generally one is on the jurisdictional challenge about absolute immunity i disagree with can pull in saying that we did not preserve that and i like a couple of pages in the record to make that clear  conduct on multiple claims the malicious prosecution and the civil rights conspiracy to which we had raised in unity prosecutorial unity in our brief in support of the motion to  the nd amended complaint beginning at appendix page one hundred and twenty two we do again with a perhaps using a multitude of words but the race that the additional acts that were supposed to be added to show factually these were investigatory actions versus prosecutorial is again preserved and so that continuing issue that we set forth in that i pointed out earlier would still stand that is the st order gave leave to amend on those points the nd order decided them and our notice of appeal raises both of unity issues so we believe those are still in play and on those points there were really four of course already addressed the approval of the complaint point and i just want to very briefly pinpoint a couple of others i think in fogle what's you know helpful and that point in that case despite having been a party at it represent a party that in assessing the specific facts for purposes of whether they're investigatory versus prosecutorial and looking at the function served it also decides that it's necessary to make a connection to the claim of the plaintiff and so you look at the claim of the plaintiffs and then the function for purposes of making the determination if immunity applies and in most of these issues there st of all no affirmative action by d secondly they don't relate to the claim of the plaintiff many of the acts relate to for example evidence that was presented to her about a different individual investor stanger who might have been  potential target so i think it's important with local instruction and something the claim of the plaintiff and then the function to see if the unity applied that the present at the needed with mr standard lawyer again present in a meeting the president had an interview where a prior statement had already been gathered by the police where the a burning not affirmatively doing something based on the limited additional facts play so i think that the instruction in focal can be useful and allow this court to address all of those issues not just what might be the clearest one the approval of the complaint issued to say that  the you're looking at the conclusion the conclusion of that report and i guess right because and i think your honor yeah it if i read that i think i think we meant it to be a negative because if you go into the context of anything the putting the agreement that would be more specific to the conspiracy claim so i think the court's position on that why it might be confusing we also believe that of consideration on the merits at that stage very good ok all right well the only thing we know for sure is that you all have more work to do on this case and we'll have to figure out exactly what that looks like so we will do the best we can as quickly as we can we'll take the matter under advisement and we're very grateful to you both for the excellent argument and brief especially under these circumstances so hopefully next time we'll see you both in person