went free spent over six years incarcerated for she asserts both fourth and fourteenth amendment claims against defendant leonard johnson under the controlling was set by a panel of this court last year in her brother richard winfrey jr's case meghan's fourth amendment claim against johnson has to be remanded for trial the court in richie's case held that there is sufficient evidence that johnson recklessly or knowingly included false statements in material emissions and his arrest warrant affidavit from it and there is no distinguishing feature of making winfrey's fourth amendment claim that would call that you know the result here to be different but there were separate probable cause hearings right there was a the warrants were obtained at the same time and the grand jury was presented with evidence on the same date of believe it was march twenty thousand and seven for all three winfrey's the father junior and meghan the grand jury proceeding occurred on march twenty second two thousand and seven for all three of them and deaths in the that's documented in the reports of the texas rangers toughened up are a two four four seven but i'm i'm reading here from the the our courts opinion from last year that you referenced in your opening and it says and so there was a hearing that the court the state court had on march fifteenth of two thousand and seven where determined there was probable cause to transfer her to adult court there was an order to that effect but there was nothing in that order that indicated that any of the teeth from the false had had been removed had been removed and so you know that the record evidence that we hide is that there was no difference between the evidence that johnson presented to the mastery in february two thousand and seven and the evidence that was subsequently presented to the other not in in fact since the affidavit for jr got lost the court in that case was for all eyeing on the affidavit for megan and her and her dad dr wright well now let me but let me pursue this a little bit also because you know you can't use the actually the scent trail evidence the mistaken scent trail isn't relevant to meghan as it was to a news case correct the i mean you do have to analyze them in terms of the particular evidence free defendant even though the ruling of the other cases binding for us right yes and so the well there were two cent things i understand i understand what a scent at there is a scent trail and then there was the scent id procedure and i'm talking about the dog that went from house to maggots house right so what actually happened was that pike it used to send for christopher hammond he put in your poor that he had used the scent for what he initially i mean if anything that's even that's interesting the thing i mean you know i mean it depends on what what what the facts might show about scent transfer and we i mean we had an appeal last year concerning pike as well in his will the deal about it is a pi it's like it ok well i mean nobody impugned the procedure where he did the scent trail from the house did they say the scent lineup is what is challenge and you know some what the texas supreme court ruled about that right but nobody challenges the scent trail there was a chance the scent trail elude them for the name though well no i mean his hit the century well and the methods by which he conducted the central were called into question by experts that we had in the case and so i mean the claim against pike it challenged his happiness in the senate lineup as well as t scent trail and i would submit that the fact that christopher hammond was made its boyfriend does not give rise to public cause to believe that meghan was involved well ok let me be a little more precise and i don't want to waste your time what seems to me to differ differentiate this case from the other is that you did have the two pieces of information from the teachers at school about meghan and  one where she puts her arm in his arm and says how old was mr burr by the way ok she puts her arm and says when you're going to spend some money on me and then she makes a comment about beating the shit out of him after she appears to have been in an argument so you had that in the man's affidavit which you didn't have you have and certainly you have been consistent season campbell's affidavit with regard to the two interviews fine but by the time it is said it is think is  defendant not accurate in saying that after she was arrested the prosecutor called in the texas rangers and by the time it got to the grand jury there was more incriminating evidence about mag and that's an accurate statement from jason king if you're they referred to a statement from jason king who was another person that it didn't make it simply in time he didn't come forward until two thousand and eight and so there was no evidence and so and what's in the record is ok he came forward in two thousand and eight to the grand jury and so between the time that johnson submitted the arrest warrant affidavit containing his falshood to material admissions magistrate in two thousand in february of two thousand and seven between that time and the time of both the transfer hearing where the court found that she could be tried as an adult and the grand jury hearing both of which occurred in march of two thousand seven there was no additional evidence that was produced and the record for that is inhofe and duff's reports which i provided the record cite for for huff and duff where the tax rate they be documented no additional evidence that came forward and what i would also add is that to this day and may be more precise act a time of summary judgment in the core polow both lacy rogers the sheriff and leonard johnson sworn in affidavits that they submitted the summary judgment that they did not they were not aware of the drop trail error until this lawsuit was filed and so what that means is they're saying we didn't know that there was air and  so it's inconceivable you could not infer from not that they then brought forward that evidence at the earlier time that you were the transfer hearing or the grand jury so if they're taking the position that you know they did not know of no over i'm more interested in this in it and i'm sorry i have forgotten about the two thousand and eight the gap so she's arrested on in february indicted in january of zero seven and what if she's sitting in jail for the entire period until two thousand and eight yes well yes she sat in jail from the time she was arrested i think the arrest warrant issued in february two thousand and seven the grand jury was in march of after he filed the false affidavit allegedly false affidavit and she was arrested but then when jason king comes forward or at some point in two thousand and eight maybe was campbell or whatever provoked it reopen the investigation even the texas rangers starter redoing the investigation you had the jason king statements you had campbell statements and by the time she goes to trial johnson is totally out of the picture is that correct or not so it is true that johnson not testify at trial but what he did was fabricate campbell statement and the difference between well now that's that that that that's a heavy charge and mr campbell according to the texas supreme court indicated discomfort with the fact that he was having to testify against magen but the way the majority in the texas supreme court puts it that's not because his statements were fabricated it is because he thought winfrey sr was a culprit and not maggot jury in this case could find from campbell's own statements that johnson tried to sleep well but is it staged testimony if he then goes on and testifies to what he wants to testify to what how can it be fabricated if you tell the jury tried to fabricate it but now i'm telling you what i really think what he testified to a trial was a very key fact he claimed at meghan's trial that it was the kids that senior told him while they were in the tank together that the kids let him into the house and that is the both the key into consistency between johnson's two state campbell's two statements to johnson in two thousand and six in the key thing that came out of meghan's trial and i would submit that the important the reason why this is so important is that was presented and i assume they prove the centro was inaccurate at that point well you know that he's trial his well his defense i mean he had a he had an expert who testified he didn't have a former boyfriend saying that she done things to resolve to prevent evidence from being corrected and i simply tried to concoct and i mean they didn't have anything with richard they had been different evidence jason king the only difference in the evidence was david katz not the only different it is  defense argued that richard jason king testified at both of their trials pica testified at both of their trials and so the only difference and the reason why campbell's fought johnson's fabrication of campbell statement is so important is because he testified at meghan's trial and therefore megan was convicted but he also said he also testified the johnson was trying to make him fabricate right i mean again how is it fabrication if you tell the jury out you know the way these things come up to us normally is five years after the conviction the witness who was on the stand testifying falsely says oh by the way that the policeman threatened me and therefore i testified falsely but this man gets on the stand well anyway my point is this my point is this you have as best i understand you have a claim for fourth amendment detention which according to the manual case goes up until the time of trial yes and then you claim to have a fourteenth amendment violation due process based on fabricated evidence what i'm suggesting is that if the latter claim is weak in footnote manual the court did say that the fourth time in his book covers the pretrial detention up until the time of the conviction but her fourteenth amendment claim is based not only in the fabrication of david campbell testimony but in the any are inadequate state law remedies which the defendant is not respond to at all but a get well and i guess my aunt might call me about that is as far as from unity goes when you read those texas supreme court opinions it is very plain the nobody doubts the megane had motive opportunity and and  month that maria burr was killed he didn't do anything with it in rogers testified at his deposition that he thought it was a relevant and the court in the original richard winfrey appeal in that this appeal that not this you know but a different count heard held up the statements from the teachers was questionable propensity evidence those statements from the teachers alone did not cause anybody to do anything nothing happened until campbell came forward i'm not i'm not ok we understand that thank you whether a due process claim can be brought in the narrative in which they've done that but instead of getting into that discussion i believe the clear thing is deputy johnson's immunity how do you and it would be a lot so there would be probable cause based on my affidavit but it would be a lot i wouldn't do that by the way it just is a hot believe it franks there's a diller answer that question the why has to be something that's necessary for findings of the supreme court in the way to analyze these types of claims because the ricci case basically only went to a probable cause determination once it launched a court concluded that there was no probable cause there was no analysis of whether it was arguable probable cause whether or not she could reasonably believe that the information that was submitted in the warning application was it was lawful and hard ground by that case  so you're bound by the the aspects of that case that were decided in that case but you have different factions this case as the judge discussed as a just discussed judge jones discussed earlier regarding the probable cause and the connection with the scent trail but you have another difference in this that the junior case did not handle your face not hand any aspect of immunity you basically got to the probable cause question it reached a different decision of probable cause than did the district court and that and that did every officer who ever was involved in the investigation in a different finding than the courts of appeal to essential does it can does the previous decision conclude that essentially that in this in this frank's situation when there's enough evidence to suggest that and i'm not saying whether i agree or disagree with it but it's relevant very relevant here when there's enough evidence to suggest that b that the police officer misrepresented material facts or or omitted very significant material fact the bat sets up the basis for no immunity i mean it's just like an excessive force case if the officer you know just beat the heck out of the guy's face when he was trying to arrest you you would conclude that there's no qualified immunity for being somebodies fa does not apply frank's actually imposes a quest a challenge into the question of probable cause and in this case once we've gotten to that point i believe the cases that deal with probable cause are the cases that we should look toward and the cases that we have to apply when deciding what how to utilize immunity because the if we can regardless of the reason why the warrant application failed to establish probable cause even under frank's one of the elements is get past the christmas but you do agree that the winfrey chord that she doesn't eighteen winfrey chord resolves the qualified immunity question against your client i don't agree that i don't believe that cause then the officers had no immunity i'm not agreeing or disagreeing with winfrey but it does have several pages of discussion about the clearly stablish law under franks has it to say it specifically holds that it's denying qualified immunity at the summary judgment stage and it vacates and remains for trial so whether it's right or wrong it does specifically addressed qualified immunity as applied to this fourth amendment claim on what looked like the same facts that we've been discussing this morning at least is that the fourth amendment claim that would go up to the time trial and what i'm asking is how do you get around that for purposes of this case just knew the factual distinctions we've discussed criticizing the decision which we're not able to do and as far as a panel i mean we can criticize it but we still have to follow it under the rule of war lena so i think what we're getting at is at least pretrial which is the fourth amendment claim for no question about it i think i have in my chambers the research regarding the sufficiency of affidavits was came out differently and i'm not quite sure why and i'm not quite sure why in reopened the other via ms wang didn't answer the question that you said deputy johnson was not involved after the affidavit the texas rangers conducted the rest of the investigation deputy johnson didn't testify at trial and then you have two judges on the corner but you have members of the jury panel prosecutors two judges on the court of appeals and seven judges on the could have known if he lied i mean that's the problem so if he lied he knew it and then he knows that's not right well and i mean even the winfrey panel didn't call it lying they were saying they were you know misstatements about the two investigations in a piece of campbell insufficiency the dogs itself and i believe that believe that it's important to talk about what the law is the problem i believe in his cases everything is cou generally and of course when we say of course we don't want the police to lie but the question here is about whether deputy johnson fail to notice that in one of the reports today another officer filed that he wrote that they made the error in the set line that deputy johnson wasn't involved in the settling of the evidence shows that he didn't participate in the thing that's being challenged so he had no personal knowledge of that and what he's being being charge of doing is own opinion that the megan's was different because she actually head a probable cause finding in this and ritchie jr didn't and so that's just that's something that the the junior ninety four of the winfrey two panel panel opinion it says we conclude jr alleges a clearly established constitutional violation and then they go through the full statements and omissions in the johnson affidavit and to judge change his question i'm just trying i want to understand how we the how your side we get around this holding that there is a clearly sound constitutional violation as to the franks claim or the what's called the fourth amendment claim in light of that precedent again not agreeing whether it's right or wrong just trying to figure out the the the panel essentially said that in light of franks that if there was no probable cause then there was no then and that would be sufficient to deny me unity the panel did not discuss the impact of district of columbia versus wispy it's nothing in the panel's opinion that talks about what the supreme court did in district of columbia versus westby and express finding a probable cause that that megan has it's different and and the difference in the center line the scent evidence the scent evidence is different in this case because the winfrey doesn't have that same situation in which she's challenging the affidavit and i think this goes into the actual parts of the affidavit that must be analyzed the after the there is probable cause in the ricci case right because he had to be probable cause that prosecution continued but there was no express finding by a judge no it wasn't there was no mention definitely no mention of the involvement of the district attorney there was no mention of the findings from agreement with the the rangers and probable cause none of the none of the things that had to do with what happened prior to that with well when did ridge so did the rangers i mean was it briefed to the court there that the rangers had reopened i mean no other evidence came out about richie though right during the ranger  the sort of the reexamination of the case that would be correct ok and is it all but more evidence came out about megan because of her boyfriend that's correct ok that evidence was  rangers and by the district attorney's investigators because right johnson was out of it on scene was added and is it just from my own name from it was it accurate or not accurate the trial testimony about well really you have winfrey senior who was also convicted and then you have winfrey junior and then and you have junior and then you have meghan so if you put them together there was less evidence on winfrey believe that probable cause existed in the light of all of the things that we've been discussing earlier today it's not that the inquiry should an end the problem to me is it's a little bit circular because if if for example a witness lied to him and he wrote that stuff down you know having good cause to believe it but it turns out the witness was lying bad would be a situation where an observation essentially makes misstatements and innocently believes that there is probable cause but given what we said in the richie case i mean we're saying he made these misstatements knowingly well then that takes away from i thought there was probable c question of what the lie is again we which if we say lie in a big broad sense that sounds like a a big evil but we're talking here about what he didn't do what he did that day was right that the senate didn't go to it should have gone to to mr campbell and then the the rangers let a talk to mr videotaped videotaped and so those are the kind of things we're talking about we're not talking about the kind of things are happening cast a lot of where somebody goes and fabricates videotape or the kind of things you come up in other kinds of cases like this where they actually do something to the evidence these are basically you got it wrong kinds of things not something that basically really is important for determining well he decided he didn't like major instructions and so he denied my motion he said a child but i would like to answer your honor's question from earlier about how can you hold johnson liable when he wasn't involved later this court in versus carson not overseas for goes it was so that when you fabricate when officer fabricate evidence and uses that to obtain either criminal charges or otherwise deprive a person of liberty therefore resulting in a wrongful conviction that you're responsible for the natural and forseeable consequences of your actions and the fact that campbell testified at megan's trial about johnson fabricating his testimony does not mean that somehow the fabrication was vi he testified at trial was that the son and the daughter let sr into the house that was from the unrecorded first interview with can't and so it's a jury question whether or not that fabrication and that all came out before the jury be inconsistency says that correct the inconsistency is well known to the defense attorney at the time that is true but it is a question it is a jury question for for a jury in this case whether or not the fabricated evidence of david campbell had a reasonable probability of affecting the verdict and it did we submit we know that it did because the only difference between meccans trial and rich's trial was the testimony of david campbell and i can provide you the record citations to junior's trial you can find the witnesses who testified at richie's trial at our way sixteen forty seven and you can find the witnesses that testified at megan's trial it thirty five was for her brother there was not a lot different evidence if the jury is told i guess you made a somebody made a brute an objection or something if that was relevant but if the jury was told the jason king her boyfriend says they went to hammond's house arguably to concoct an alibi and the g did something to herself to prevent the cops from getting evidence to begin with i mean you know a discerning jury says well that's bad news for meghan and what she threatened to you know what she was seen doing in school but that doesn't necessarily implicate  seven judges have in the texas court of criminal appeals against two judges what i'm really talking about here is what is the ex if you can hold if deputy johnson is potentially held liable for these events is he held liable for the entire progress even though the case was reexamined more evidence came in never applied the concept of intimate inter they lead an intermediary to it but again when you look at the and maybe that's the answer but when you look at the texas supreme court decision what you find is that all this business about campbell isn't about two paragraphs and what they are really concerned with is that the testimony to the you know her statements in school what she was doing to herself whether the alibi was an alibi or just a legitimate effort to recover her memory campbell is a real small feature of that and it's sort of interesting that it's now being inflated into the be all and end all of the case it is a jury question whether or not campbell's fabricated statement had an effect on make a mistrial on her conviction and the question of causation whether there was other evidence that was presented against megan that had a greater effect that's all for a jury to determine ok thank you