the morning your honors dave blake on behalf of the appellant's geraldine and carolyn burley i would respectfully request four minutes for rebuttal of your honors we've laid out each of our points on appeal in our pleadings and i'm going to focus on what i feel are the four most important issues that were raised and then we'll rely on our papers with respect to the motions and women begin your honor we'll start with the motion to recuse we feel that based on all the proceedings the first trial the conduct by the trial court in the first trial this court reversing the decision of the following the first trial and then the conduct during the second trial  or i should say the pretrial proceedings before the second trial judge friedman should have recused himself from the second proceeding and i think that we've laid out those arguments is simply in our pleadings where you look at the conduct to during the first trial the animosity towards the the parties basically suggesting that the defendants move for a judgment as a matter of law following are closer proofs show that there was some animosity there and then we take the case to the six circuit this court reverses judge friedman we go back down and the the animosity was present during the pretrial proceedings during our facilit everything at that point it became very clear that there was some animosity towards the parties and you look when we started that we tried to start the second trial i was informed at five o'clock in the morning the day of trial that my client had been hospitalized the night before and that was from my co counsel mr coley at that time i made the decision not to inform the court at five o'clock in the morning that we would be trying to postpone the trial and i thought that it was such a nature that all parties should be present when i presented that information to the corps at eight thirty that morning we came into court to explain that to the judge and he ultimately did postpone the trial but sanctioned us approximately twenty five hundred dollars for not informing the court that morning that my client had been hospitalized and that's just one example of the hostility towards the parties at that point and i'll  rely again on my pleadings with respect to the other instances that we fly outlined for the court to consider with respect to that argument the second point your honour's is the motion to shift part of the burden of production when this case came before the court in two thousand and thirteen we requested that the the court adopt the ninth circuit shifting of the burden of production for these officers to identify themselves and again this is a case where during the initial pleadings there was no mention there no indication that the officers would not say that they were at this particular house during this housing raid and when we came before the court on our last appeal they left it up to judge friedman to determine whether or not he would implement the shifting of the burden of production for these officers to identify themselves and i think it's  the cornerstone of constitutional rights for officers not to be able to conceal their identity and then when they're framed asked point blank by participants during this raid who are you who are you and they never have an opportunity and never had any opportunity did to ascertain the identities of these officers and i think that's exactly what this court was looking for judge friedman to do particularly in light  first case the first trial where they started vastly deny that they were there even though there is documentation that each of these officers was present at the raid of my clients and again the my clients  everything that they could to i identify these officers and it's constitutionally unfair to go into court and have these guys say oh we're not there at when there's documentation that they were present as far as the burden shifting approach that the ninth circuit head up there was a fall russkies it was not an excessive force case which we have here which is governed by the fourth amendment and held that that nurse false arrest burden shifting does not apply in other contexts including the fourth amendment so i mean if we're going to file the ninth circuit should we also follow the distinction that they've made and it doesn't apply in this instance well judge griffin i think that again if you look at the dog the holding in dog owner and also if you apply that to the facts in our case you have a tori's written discovery everything presented to the defendants to identify who was present during this raid and they don't acknowledge at that point that they were not there then we take their depositions following the statute to of limitations running and then they start claiming no we're not there and i think if you look at the broad parallel of constitutional law under any reasonable circumstances you can already to support your proposition that there should be extended to this situation of fourth amendment excessive force i don't have any authority your honor but i think if you look at the facts but you can cannot reward somebody entering a home and there is documentation that these particular defendants were present that is a stablished records that they were present at this home and then they claim that they weren't there and say they always just team a that there's a doctrine in some states under tort law like usually arises out of medical malpractise where you have a bunch of people working on an operation and they all say i didn't do anything negligent but the person comes out of the operation without a leg or something like that and in some states if if none of them says who did it then they can all be jointly and severally liable toward types that's not exactly the same as shifting the burden of production that's kind of a special rule that you're all jointly and severally liable because of that because you have an evidence you have an evidence conspiracy problem so i'm wondering what it is that you're arguing for or are you arguing for something that's that strong are you just arguing for a more classic burden shifting rule that just says if if you as a defendant don't say anything about whether you were there or not it can go against you you have to produce some evidence that you weren't there that's a burden of production if but that's a lot less than saying you have to say who was there right in a different productions involved are you arguing for the la stronger they have to point the finger at someone else or are you merely at arguing for a burden of production they have to come forward with evidence that they were not there you know i'm a judge orders arguing that they have to produce documents and acknowledge that they were present when you have a doc they were there as a but they're not going to say they were present they're going to say they were press right but you have a document showing one of quickly that they were present and they come in and so now they have to have countervailing our evidence is that what's required but seeking you can countervail evidence without saying who else was there that's what i'm asking what you're are you asking for production of evidence that of who else was there on pain of paying yourself or are you asking for some evidence that you were not there to countervail the inference that you were there from the absence of any evidence to me i maybe haven't expressed it right but in my mind those are two very different things i would i understand what you're asking to drivers i would say that we are asking for production of who was present during this raid and we ask that area that's maybe even stronger than the air and it's very  again when you have all these questions during written discovery you have a document listing each one of these defendants present during the rate you have officer gak to testify he is present following the raid in may i made a mistake in the d i see my time is winding down here do you have any other questions that's the that's the issue i understand it and make a strong argument thank you you thank  good morning your honor my name is gus morris and i represent one of the task force agents brian willow skee defense counsel here in the appeal have decided to split their time three ways and separate the issues so i'm going to take a maximum of five minutes to discuss the burden shifting issue with respect to dubner as judge griffin pointed out certainly dubner is limited to the false arrest arrest scenario and again as you correctly point out it has been specifically said not to be a political to the force scenario but i would add to that discussion the following i don't think factually even if you were going to say will apply the du to a four situation i don't think factually it even applies in this case and here's why the book the plaintiffs and as well as one of the witnesses actually identified police some of the task force agents as being present during the alleged acts of excessive force the initial testimony from the plaintiffs early on in this case when you got it on appeal was they were masked but when that was fleshed out at the second trial that in fact was not the case christopher burley the witness son of one of the plaintiffs actually testified before this jury that the large bald heavy set of heavy set agent that stomped on his grandmother's knees was in fact not masked and he described him specifically and the plaintiffs themselves in the second trial first trial said voice identification of one of them in the second trial they specifically identified willow ski mile my officer and the other officer as being present in the home so for me it doesn't become a situation where should we shift the burden because once jackie they were in the house and those officers then get up in front of a jury and say no we weren't we were at the house down the street when these things happened then it becomes a classic credibility question doesn't it for the jury are they going to believe the plaintiff's testimony that these officers were in the house or do they want to be a burden of production issue unless you have some sort of specialized burden of production that requires you to find evidence that somebody else did it yes that's correct that's correct they're well i think maybe it was a mistake i'm not sure was air but there were there were things i think the plaintiffs could have argued to keep them in the case at that point in time i mean yes there was there was an offer they settled with  prior to trial who arguably may have been one of the ones that were in the home he didn't testify one way or the other but there was a settlement and others were were let out or not argued as being present and in fact some of those officers were actually subpoenaed and testified as witnesses in this case and and it's not i don't think it's in the record but anecdotally one of them was baldwin heavyset and he was not named as a as a defendant in the case it was no longer defend at that point and we didn't represent him i'm sure it could have inferred that was him that did it as well but maybe it was a mistake for that but i think was a strategic want to on behalf of the plaintiffs not to pursue those claims against individuals perhaps a little more vigorously and that's all i have to say in the shifting issues so i'm going to defer to sister coun juror two of us attorneys stepped forward and said we were the ones that wanted that particular juror to be stricken for race neutral reason i cited one of the reasons in my cases i i tend not to pick pick teachers in my cases i try a lot of criminal cases teachers and engineers don't make good jurors particularly teachers because the thing that makes someone a good teacher is perhaps some of that makes not necessarily good juror there they have a lot of empathy and they kind of root for the underdog and in this particular case my thought process was i didn't want to juror who's going to root for the underdog in this case so that's mike my reasoning is that it comes stems from it from one of my mentors who suggested that teachers in particular instances you don't want them use that quality that makes them a good teacher having a lot of empathy and rooting for the underdog so judge brady friedman he done then went to the next step which was assessing our credibility as i said there were two of us who stepped forward and said we didn't want to we didn't want this particular juror and he looked at us he assessed our credibility and he determined that and it's again this is all on the record as a sealed jury report to record but he said that you know no party has a right to a specific makeup of jurors you simply have a right not to exclude based on rates as i said he did he assessed my demeanor he assessed the other chinese demeanor and he can he's and he said that he accepted i had accepted our research so he followed all those best i just wanted to say one quick thing i wasn't charged with speaking about dubner but i just wanted to point out that my client pepper around was actually one of the officers who was placed at the scene and he denied being there at the time of excessive force but he was identified by voice and he was off but in terms that burden put that burden shifting that burden of burden of production shifting we did come forward we had testimony from calvin harris who was the supervisor in charge that day saying that no i know unequivocally that peprah was not at the that that really address he was at the other address so we did come forward with with evidence to show that my client was not there so even though i don't agree with the doctor shifting analysis that's what happened in this case we did come forward there were two lists of people they chose to go forward against these particular these particular defendants i also need to address sorry sorry i also need to address mr blake that he was just he wasn't going to address the motion in limine e regarding whether or not patrick brown's previous lawsuit should come in i just want to mention i won't say much about it but i think the judge not abuse discretion the lawsuit was from when pat brown was in his first year of being a police officer and there was he didn't choose to have that lawsuit brought against him it was brought against him they were not they're not good at locations he was actually dismissed from the case and the city settled with respect to the city not with respect to the officers given any questions i'll sit down to the the notice of appeal appeal generally from the verdict or to that applied to certain i mean what mike sr counsel be addressing that your honor but absolutely not i think mr blake may have misspoken his client was not hospitalized the night before she had been in the hospital couple of days prior she had been admitted i think at least two days before but i think the court has to understand understand we went through an entire jury process of picking a jury we we nobody cares about about our time obviously but we spent the weekend preparing the jurors you know in federal court i was the jurors come from all over from all over raised but before i do i would like to reiterate the point that you just made judge rogers and that is that the notice of appeal identified very specifically the orders of the trial court that were being appealed at that time  that was the basis for a motion to dismiss the appeal that that i filed on behalf of my clients because they had not identified that they were appealing the judgment itself which of course underlies all of the questions  that are before the court the batson issue was not one of them and i believe that the plaintiff has waived the jurisdiction of the court to review the batson issue itself with respect to the issue ever accuse all the plaintiff focused here on all of these issues from the prior trial that occurred in two thousand and twelve and has argued that there is some kind of deep seated animosity that judge friedman held towards the plaintiffs here and he believes and has presented to the court the assessment of the jury expenses however he did not sink sharon the plaintiffs or their counsel that was a local rule in the eastern district of michigan that if a jury does not serve for a cause that can be attributed to a to a party or their attorney then the juror expenses shall be plaintiff is not provided any personal or extra digit judicial reasons that they believe judge friedman was allegedly biased against them nor and i think most importantly they haven't pointed to any card of the record that shows that they have had some effect on the outcome of the trial and that really is the question here the second trial that occurred in two thousand and fourteen was a jury verdict in favor of the playing of the defendants and the first question that was asked of them that was where the defendants present when the search warrant was executed and they said no that was a unanimous verdict  and that because we believe the defendants presented sufficient evidence to discredit report in which they were identified in addition the agent who wrote the report at mit it that he probably cut and pasted names from one report to another and didn't have a a good handle on who was actually there with respect to the the other the other evidence here issues plaintiff did raise some other motions in limine a that they had been denied by judge friedman but judge friedman also denied specific motions of the of the defendants as well there were several motions and lemony by my office on behalf of our clients by mr frey not to help her clients by mr morris on behalf of his client and those and several of those were denied so judge freeman showed his even handedness i think he gave the plaintiff the plaintiff's anough rope to hang themselves in this case and i believe that the jury considered a full case here without regard to any bias by the judge certainly the substantial rights of the plaintiff were not affected by any of the evidentiary rulings plaintiffs did not even argue in their brief here what happened during the trial how these matters affected the outcome of the this appeal came to the court once before we've raised these issues only in the event that the court feels it necessary to remand this case for yet a third trial and we would request that those additional instruction any way suggesting that the original verdict was in firm in any way thank y counsel just a brief rebuttal on some of the issues raised your honour's judge griffin i just wanted to touch on your point with respect to the state actors who were present and whether or not there was a mistake by letting them out what we have here is i believe six or seven officers identified again on the information report that they were present during that really street raid and the reason the court cited for dismissing the other state actors were they were not present in the home during the raid they were all periphery and so that argument that the reason why we were focusing on the people who were listed on the report is because they were the ones who presumably were present at the rate with respect to the batson argument  again looking at teachers and engineers and people who have empathy i don't believe that's a race neutral basis for rejecting an african american american female in our case but i'll leave that to the discretion of the court with respect to the motion to recuse again we've pointed out and laid out each one of the points in our papers that show that there were there was bias here you have a judge interrupting counsel when he's cross have been in the second trial but i don't see any instances alleged bias in the second trial and also in regard to the effects of the twenty five hundred dollars i guess i thought it was vacated because it's not a l i believe your honor that we encompass that with the whole issue with respect to the read recusal and that's one of the points as i read it or that's correct and that's correct if you have any other  general rupp's and ask questions rendered to do then in fact in federal court federal judges are permitted to comment on the evidence if you know that i did know that your honor but if you look at the context of how the first trial was proceeding at one point i had scott harding who was the officer who often we settled his claim following the first trial i had him on cross examination he was  a vulnerable position and the court interrupted and said it was time for him to have a water break and i i understand that there is great discretion for the court to enter jacked and conduct the trial as it sees fit but that's just one example of how how he conducted himself during the first trial which you know i mean those are the ones for the second trial so that's kind of moot right i would say your honor that if you look at the conduct during the second trial there was the jury's raises things that you're going to tell me we did your honor i believe there in our papers counsel i'm i'm like you i'm troubled with this idea that public officers can render themselves anonymous and thereby defeat constitutional remedies stated that broadly it's offensive  i wonder though if you can that the trouble with having as sort of like in school the teacher says who who you know who broke the window and there's five people and they all be quiet and and the teacher says well i'm just going to punish all of you that that's a problem as well you're right they shouldn't be able to get out of i'm no this is much more serious but there's a there's a way of interests  system where people are required to testify that something had to you know in effect tell who else did it to point the finger or to find or to go and find out who did it and it that's that's itself got some underlying concern some wonder if there is some sort of way we can deal with this problem without going all the way there that maybe we wouldn't necessarily hold but we could at least argue this but what we have here and i think what is across the board that has to be addressed is you have officers who flatly denied that their president and you have documentation showing that they were couldn't i mean that is good evidence to use against but just because a police report says something it doesn't mean that the officers testimony to the contrary it has to be disbelie because it's contrary to a written report but when they do that all the time when it's drafted by the defendants who are present yeah you could admit it it's admissible evidence but not this one and here you don't have everybody being silent they all said it wasn't me it wasn't me who i don't know and it does seem illogical and i guess the only thing other than somebody of the line is maybe there was another defendant that just wasn't named that could have could have defendants i guess because we have defendants entering oh yeah but it's troubling but they did answer it wasn't me who was it i don't know i wasn't there that's what they all said and done so that's the that's the problem you have discovery in this manner you know in this case yeah we did we have positions we did and i mean that's kind of the safeguard a thing the best we can come up with and if you've got somebody lying you've got a document that show they're lying that's a question of fact right when you have discovery that specifically requests who is present and they respond by saying we did not cause the injuries as alleged by the plaintiffs in this case wait for the statute of limitations to run each one of them or you there and we did after the statute ran and they at that point in time began to deny