may please the court my name is zachary oren and i represent plaintiff pellant fred burgess with your permission your honor i'd like to reserve one minute for a bottle yes that's fine i have three points i would like to discuss with the court today the first is that there is a question of fact submitted to the jury why does that matter certainly if the question was the guilt of your client in a criminal trial those would those credibility questions would be essential but the question is only whether there is probable cause and correct that's absolutely correct your honor but it's very similar to the if a jury decided that these folks were in the and not credible what why would that undermine the officers decision that there was enough there to warrant an arrest because the fact they gave materially inconsistent statements to the prior officers that in and of itself on that probable cause determination those inconsistency is the fact is that so first of all the inconsistency is are not that great right that the principal one is that one of the two witnesses gave it mr pridgen gave a different height right  what else is inconsistent in his statement a different height was more than half it was a half a foot your honor every change that the same night so this theory that he consulted with his sister and they made up some story doesn't wash the all the other major inconsistency is whether or not the suspect had his face concealed i vy a face mask a face mask or having facial hair and when the entire prosecution rests on the photographic  that were presented to these two witnesses which originally said that they couldn't id the id so they couldn't id the suspect but they picked this guy they both separately picked your client out of the photo array right i can see that much but only at the end is there any evidence that they knew him at all there's no there is no evidence directly then how would the why would the police be required to think that they had somehow concocted the identification of a person whose picture they saw whose height was not listed anywhere on the photo spread as far as i can see they had reason to pick out well the reason is because they were brother and sister they were allowed to go home and essentially they could have spoken to an individual but you saying they shouldn't have been allowed to go home that night no but i'm quinn tell young and i extensively in my briefs he was six foot two he came out of apartment nine he originally gave inconsistent he originally told the police he wasn't even on scene and then later he freely openly comes in and says yes i was outside at the time of the shooting and i retreated back into my apartment moreover i'm talking about me all the photo array yes the photo array they picked out your client and independently and separate occasions now there could have been any collusion as far as that was concerned pollution in the time period between the first interviews then they go home they're allowed to go home and that's when the collusion could have occurred and then they come back questions all we are talking about here is a probable cause determination it was a shooting which resulted in the death the victim to witnesses separately pick out the plaintiff from photo rights why isn't that probable cause again i would i would rest on the fact the fact that the game materially inconsistent statements i would also point out earlier to the kwan pridgen upon the initial interview and joseph even can see this in his testimony reviewed what they call the live scan database which could have included that's right in the record we could have but there's no evidence that it did there's no reason to believe that it did it's just an entirely speculative again and all of this is terrific if you are trying to demonstrate reasonable doubt and i assume that's why your client was ultimately acquitted because these witnesses given all of these problems are not sufficient were not sufficient to persuade the jury beyond a reasonable doubt that he was the shooter which is fine but the early stage of the investigation and why is this not enough to constitute probable cause even assuming that the officers knew of all the officers who made the decision to arrest knew all of these facts which is not clear that they did or at that point your honor i would i i would argue that based on these inconsistent statements that's a credibility determination very similar to the do for case these are really the only two issue or the police officers are not permitted to make an arrest are they not permitted to evaluate the credibility and decide whether there's enough to make an arrest and what what is the point well that well they could have put in for an arrest warrant they could have went for a grand jury indictment but understanding why the defendants that are sued here are responsible for the continued prosecution what i what i see is this after the grand jury indictment the case gradually disintegrates  there's a perfectly reasonable argument that it was a misjudgment by the prosecutors to continue to trial in a case where maybe reasonable doubt was to be expected but what it is far as i can see there is not any evidence that mr joseph and mr lamberton knew about any of those things that caused the case to dissolve or that they said anything to the prosecutors to encourage the prosecutors to go forward so why are they responsible for the continued prosecution i would respectfully disagree with you on one point was whether or not the lambert turn in joseph continued and encouraged the prosecutors to an act as to tell me where the evidence is i can tell you that in the record it's at eighty three seven and eighty three eight that's lamberton in his deposition he was asked if he if he went up to eighty a mad dorian that was prosecuting the case in specifically he says that he wanted to testify he felt plaintiff was guilty he felt the jury got it wrong he felt he should have been called as a witness during trial and was wasn't i mean i think it's peculiar is he's saying after the fact i still think your client is guilty and i wish they had called me to testify because i had great stuff to say about him which i'm not sure he did so what does that say about what happened before well under under the beer may your mendez second circa two thousand and fifteen case he encouraged  dorrian to continue the prosecution moreover under that case and is there any evidence that he was aware of any of the d n a evidence for example you know that the process both of the investigators and factor joseph testifies trial even after scenes of not any evidence wanted without a trial but he won't change his statement he still says he would arrest plaintiff he testified i don't i just don't understand this he says he would have made the same decision well actually as we just discuss maybe he should have made the same decision at the time of the arrest the question is is he responsible for pursuing a prosecution in the absence of probable cause when it sounds like that decision is made by other people prosecutors lawyers who are immune who know exactly what all the evidence is when joseph does not well i would just out of time but i quickly respond and say that the fact that he tells the criminal jury that he's looked at all avenues investigation everything points to my client and then he sees the exculpatory d n a evidence and refuses to change his statement recant from that statement and he never tells eighty dorrien that he's uncomfortable with it though he's he's responsible malicious prosecution because at the trial he gives testimony i'm not sure i have to look back at that to figure out why that's admissible that he still in his personal opinion thinks the defendant is guilty yes yeah particularly when he was presented with the the subsequent prosecution up to the time of the indictment first with respect to the arrest it is our position that the the alleged prior inconsistent statement of the other witnesses is really that even inconsistent detective joseph explained that during his deposition he wasn't he said he was included troubled by that first and furthermore he was only confronted with that in the case of this litigation he wasn't aware of it at the time that he made the arrest at the time of his re interview he was questioned about that during his deposition and he said specifically no in fact he offered the reason for that which was that he wanted to remain independent in his investigation and his questioning the two suspects again identified the suspect the appellant as for between five seven and six feet before they were allowed to go home that night the described the same type of clothing the following day they both identified the suspect out of a non suggestive photo array there's been no allegation of a suggestive photo array on like the do for case so they both picked this gentleman identified a suspect and that suspect was dressed in the same exact clothing so that the suggestion there in the argument that was the holding in that case was that the array itself was suggested there's been no suggestion here that the array that there was anything wrong with the photo array and we have two witnesses who both independently identified this person as the shooter as for the argument that they weren't they weren't allowed to or they  somehow didn't see the shooter's face that's that is not in the record i believe the two witnesses were expressed some doubt heard that they might not be able to identify this person in a lineup or in a photo array they weren't sure but they never said i couldn't i never said words to the effect of i would not be able to identify this person this person's face was obstructed i didn't see the face i only saw the clothing like and do for these two people you know describe the person they said there may have been some covering over the bottom portion of this person's face but there's been no statement to the effect of i didn't see this person's face as for a claim of collusion all i've heard all of read in the brief and all of her here today is that it could have happened they could have colluded there's no proof those two witnesses were never  posed in this case what we were making earlier is that there's no way they could have least i can't imagine how they could have colluded on the actual picking out a face they may have been  some discussion about height leave that aside this is picking out the face in the photo right correct that would have just been a very good guess on both their parts to pick the same person but me collusion because incidents appeared purely  for probable cause with respect to the malicious prosecution claim there's simply no evidence of that in terms of how the testimony went during  only way i think one can succeed really is to show that it was kind of lucius on the part of the officers in the sense that they lied or fabricated evidence or did something of that sort  i would agree with that there is there is simply no ever there's simply no evidence of that that one report the claim that that was somehow suppressed and not and not forwarded that would be otherwise exculpatory there was questions asked about that and there was just there's been no proof in the record that there was and there was never a motion to compel that production of that report and there was just f was never deposed there was no there's no there's been no proof beyond just the suggestion that oh well the eighty eight apparently didn't apparently didn't receive it because i didn't receive it when i subpoenaed those materials and then trying to pin that on detective to joseph just doesn't from judge lynch as far as the participation of the defendants in the malicious prosecution lamberton also again under the i believe it's the the burnette is case continued to investigate interviewed found some new witnesses this was the citizen x and citizen y individuals which even the district court disclosed it in it's a not probable cause analysis and felt that that didn't even really address that because they were so unreliable that's at footnote fourteen in my work on the case direct supervisor told them go interview this person and he did well if you ask presumably but he participated in the prosecution he didn't i don't understand this an officer is sent to do some interviews in the course of the case how does that make him responsible for the district attorney's decision not to drop the charges after exculpatory d n a evidence because the  fact he doesn't go to the prosecutors and say these witnesses are terribly unreliable in my opinion i believe we shouldn't be why would he would he say that that wasn't his opinion all that that that there are terrible witnesses they're not credible if he was really acting maliciously he would not have investigated he was just made stuff up the fact that he was investigating suggests that i was acting in good faith well the fact that there citizen x and citizen wise the complaints i have no way and we try to discovery to verify who these individuals were and they testify their depositions they had no idea they couldn't remember who they were there for these reasons thank you nothing for their point