the morning writers may please the court seem up to town behalf of plaintiffs i'll be reserving three minutes for rebuttal you know her as we're here today because my client was wrongfully imprisoned for thirty five years for a client crime he did not commit this was because materially fingerprint evidence was kept away from him at the time of the conviction the fingerprint evidence at issue in this case was located in the bathroom stall where the assault took place as it happens the evidence was so probative to his guilt that thirty five years later he was exonerated based on the basis of this evidence but it was also the technology had given new tools for evaluating that evidence why i think that the technology the office is a supplement to what the evidence meant but if you look at the evidence itself the fingerprint evidence that was found in the bathroom stall just if you just look at that and compare evaluated based on the materiality test under kiley whitley that evidence was materially exculpatory at that time it helps that thirty five years later when they were able to run the prints again they were able to find another suspect placement of the fingerprints in in the bathroom stall and second is the manner in which that the assault took place now the district court he decided that that evidence was not materially exculpatory because it was fingerprint evidence in a public bathroom and he said well if you have fingerprints in a public bathroom where anybody at a public university where anybody could have put their fingerprints on it that in and of itself is makes it material not materially exculpatory and he would have could have come there fingerprints there however you wouldn't even have been able to tell the fingerprints are those of a may in this way he was exposed to be in a lady's restaurant right now i mean there was no gender identification but the location was important given the crime extremely important and that's it it's two parts the first is that these weren't just fingerprints that were located in a public bathroom they were fingerprints located in the handicapped where the assault took defense the officers duty is to turn it over to prosecutors ask where's the evidence but there's no evidence as i understand it that they didn't do that i have the best evidence my client has testified seeing that all throughout his his criminal proceedings it was never meant to fingerprint evidence was never mentioned there's no mention of it you know one client's not privy to every conversation his warriors have with prosecutors but more importantly your client doesn't have any alive or not know the officers were there i think the defense trial counsel was in the process of getting depositions set up and scheduling them in the meantime a motion for summary judgment was filed and over spawn's was filed and we were still trying to get depositions scheduled by a rule fifty sixty motion and say don't rule on the summary judgment because we need these depositions we didn't file it at that time what happened then your honor is the city of detroit tried filed for bankruptcy so the case was stayed after responses were filed but before a hearing was filed in before a motion a move to sixty motion could be filed so the case was after the materials were submitted the case was stayed for two and a half years during the pendency of the of  the bankruptcy then after the stay was lifted we did file a motion to be allowed to take those depositions the court denied the motion based on the rationale that the any deposition sixty motion i don't know if it was a rule it was a motion to be allowed to take the deposition i know i understand but do you understand what i'm how you understand what that's what should've been filed i understand the whole point of it you're saying to the district court don't roll we need these depositions it's not fair to rule on the motion for summary judgment till we have this evidence i understand your honor i think that the response had a statement in it that requested that the that the that we be allowed to take the depositions but a formal rule fifty sixty motion was not we do not even appealing that no we're not we're appealing the district courts because the way the district court looked at it he didn't he didn't think that the depositions were were important he looked at the evidence the finger evidence and ruled as a matter of law that it wasn't materially exculpatory but you cited the district court in any way shape or fashion you know without these depositions we're not going to have any evidence that the prosecutor knew of this knew of this no i think that the argument in the lower court was that it's at i mean we're forty years out from when these events took place it's very not forty years out from when the argument should have been made to the district court that's correct your honor by its impact the i think that just as a as a matter of practicalities it's been very type deposition testimony of my client saying that he did not no mention of this fingerprint evidence was ever ever brought to him and i don't understand that there are intricacies that his client may have i mean his his counsel at the time may have had conversations with the with the prosecution and cetera however this case may have been a matter of course for the the judge may have been happening as a matter of course for the attorneys involved but for my client he was on trial for crime he didn't commit that we wouldn't talk about now in might have been what i'm sorry i don't understand what i'm saying that my client was very committed to paying attention to what was going on in the case he was he wanted to know he council that this is the problem at least for me that i'm having i think personally i think it was material and i think it was a cult but tori but as i understand and i accept that your client says that they weren't told by anybody ok so but you are suing the police officers so the question is there how do we from from what do we in that the police did not give it to the prosecutor three three pieces first and i talked about that my client's testimony second is no but your client's testimony doesn't do it because we don't know whether it's the prosecutor or the police did the police not give it to the prosecutor or to the prosecutor not give it to the defendant i think then you have two other pieces to the second is that there is no mention in the prosecution file or any of the criminal documents and did you bring that to the attention of the district judge when you were opposing this motion i think that the the trial attorney didn't and the reason is because so you understand that the innocence project got the fingerprints because the records show how they got them yes so this is a project got involved in two ways first mr connor has been very  adamant in proving his innocence since he's been convicted and so he reached out to the innocence project thomas cooley innocence project innocence project in turn reach out to detroit police department and asked that if there was any any d evidence that it be retested the d p t said that their d n a evidence from the case had been destroyed but that there was this handrail they had been kept in evidence and that they would run the tests for any fingerprints on the handrail now this is the second part the third part that we haven't gotten to yet and that's the notation in the two thousand and nine re inspection of the handrail at that time when the prints were rerun again the detroit the technician running the report stated and for the first time disclose that the prints had been run initially back in one thousand nine hundred eighty four and that they had been a mismatch for mr carter this was the first time that it was anywhere in the public records or in anywhere in writing that there was that the prince had been run initially and that now they were that they had not been a match so a week too and what about that supports the inference that that information was not given to the prosecutor because it's not in any of the files i mean they had there that's not in evidence that's what you're telling us but that's not for purposes of this argument that's not helpful have looked at any of the files with his attorney at the time became to have been involved i mean i don't think he was looking through any of the pleadings and things but he was involved with his with with his defense and maintain innocence and was involved in creating the story that would be presented and then i'm sorry so you referred back to this day so you heard a discovery period right and how long was it in effect before the stay was imposed i know that this was imposed after after discovery had closed the state was after discovering this because the state had nothing to do with not taking depositions no but i mean i think it's important to add that we had been in discussions with defense counsel to take the depositions and had an informal agreement that the depositions would be taken when the stay was was you had the agreement the stays in post the status lifted and and then when you asked the court so a so at that point discovery has had close and then you asked the court to please let us take the depositions that we've already agreed to take and the court said no court said no for reasons of utility your time is up and you had a little if you if you reserve court my name is linda fagan's appearing on behalf of the city of detroit our position in the us is that the plaintiff has failed to establish in the constitutional sense brady clane for three reasons the first one is that they fail to prove that this city the state government suppress this evidence number two that the this they hand print unfit and the palm print constitute exculpatory information and thirdly clearly this evening that the even if you agree that is called the tree point of has failed to establish in a constitutional sense that it was material that even had the if the defendant had known this that it would have changed the outcome of the this of the nine gerry bench trial is a bench trial decision of the judge here first of all addressing the issue there's no evidence in the record anywhere that the police officers who are suppress this information there's never been any and first of all is the question and answer nothing was submitted they did the police officers were never the poles prosecutor was never the polls there's nothing looking at what the records show and then so when i was in looking at the record in there were shown number one that there was any type of agreement and if and plaintiff in this particular case never appealed asked for any type of motion it was was the first time perhaps was when after when the the motion for summary disposition was filed there has there been a motion to compel e the motion reopen cording to this document number four one four fifty four the motion reopen and i really don't remember that but i know that when he was a rolls in and looking at the judge's decision stated that plaintive had neglected and did not show good cause for reopening number one never filed a motion to compel never brought anything in he emphasized it was the duty of the plaintiff to take active action this is apropos of nothing but i'm just curious you know the city detroit doesn't have a lot of money but i take it doesn't have a fund for when it negligently supposed to violate the constitution but negligent in prisons people so you have someone who's been convicted kept in jail for ten years thirty five years whatever it is they have a fund where they say you know we're really sorry and this is we're not going to pay you everything you want but it doesn't have something like a victim compensation act think the state has that it was a dentist and then given to mr card not to my i don't know anything about whether he's got money or not so i can't address that issue of whether he's applied for  so in terms of evidence stating that the police officers suppressed any evidence on that they did not discuss this until the prosecution is where the prosecutors ultimately the one who decides when it tells the defense counsel is the one that determines the and so forth the police officers that we infer because i mean certainly it was clear under brady that the prosecutor had an obligation to disclose and it wasn't disclose your honor in terms of what the prosecutor would have done arguably i think that's speculation and say what the prosecutor would have done and i don't know about you seen that had he had it i don't think you can make those inferences and he had he would have done that in this case in the whole the police officers in the in this particular in this particular case i think we have the situation the police officers is not legally identical to our records or what she never and it was never raised or submitted to the district court none of this evidence is just at all the city that it wasn't in the record that is based on speculation we don't know what happened in this particular case and you can't rule that that it was a suppressed based on speculation number two the this fingerprint was not in school but to use next to arguments are a little harder for what it's worth  the air and then at younger but now when you look at the one thing this one i've been reading over the opinions in and as you know you have to look at the night look at just the evidence itself bar what was available collectively and at the say that what was so unique about this that would have gave would have changed the judge remember this is a none jury case and position was the fact that the the that there was a fingerprint found on the by the on one of the hand rails in this particular case here if you look at which wasn't a simple investigation report there were numerous fingerprints a lot of them have poor results if you if you look in the record in the document nineteen it was poor results poor poor results couldn't determine the handrail of the foot rail the handrail period yet the foot rail but they but artist issue but let me say something about the foot rail if you look at the plaintiff's state this is what the police officers see it but if you look at the plaintive statement just because i was worried about that question myself so i went back to look to see what the point of say it plenty of never mention anything about this this particular assault this the suspect touching anything she was the one that was doing all the touching o locked the door made her turn around is very gruesome arguably no reason for him to be in the know right that's not true because she she said is that the first thing he did is he why he said that it doesn't also it doesn't so when you look at the context of this case you have what we're looking at from nine hundred seventy four your honor you we only found out what happened with that one hand that really all that there in later years ago it's fair to have an advantage that he was in prison for thirty five years and are supposed to construe that in your favor so don't i wouldn't go that route your honor i'm not an stand pliant and a horrible place but the issue here thing he does is he's using his his tongue i assume on her with them right so she he's obviously in a position where  if the right person had been prosecuted with his fingerprint in that location the prosecutor would be arguing look at the location of this fingerprint look at her testimony and nobody would be objecting and the jury would find it very convincing yes but we're looking at here in the time they were trying to find police officers liable and arguing that they deny point of this procedure due process  by failing to mention that legibly which we see is no evidence that they did it because all the point is if they have to only have to prove that they did fail to tell the prosecutor and that's not here in this particular case in this particular case what are my position is in the cases say in the proposition stand for that when there's many in a public star where there's many hand prints and so forth and your honor that all he proves is this particular case a neutral point only under certain circumstances like somebody pulling themselves up from the ground and that fingerprints was clear so that it was likely recent and it wasn't this person's i think a lawyer could do with very no one knew they did not think they emphasized all he emphasized in that report was that it looked what it looked like and could have been someone put off the floor there wasn't no one is far as we know in terms of that we do know that there was no match of carter being there but based on the evidence when we look at the whole context of the case look at the evidence that you did have eyewitness testimony then look at the fact that you did have two witnesses who placed him there the defect that this eyewitness testimony which has been reliable nothing has been done to say anything to question her ability to see to even question to bring question is eyewitness testimony that's what you have there in this which in this particular case establish that they did defend it was there and therefore is not material so even if the judge had known about the fact or the events that the that these that there was no match the judge in that particular case has said in light of the eyewitness testimony and the fact that there was no match a lot of times is the fact that something is not a match this shows that specially in a public bathroom that doesn't mean the defendant was not there there state victims the compensation fund there is not your honor and the legislature in michigan has been working on a compensation fund for wrongfully convicted individuals i think something proposed last year was ten thousand dollars for every year that the victim had i mean he had been i prisoned wrongfully but they haven't been able to pass that and it's not law yet he has no recourse and i know this as and i'm it's more contacts anything else but my client's in his sixty's he has very little work experience behind him because he's been in prison for thirty you know and given all of that it's a real shame if this case is dismissed because counsel did not establish the very simple fact of whether it was the police all the prosecutor it's just adding insult to injury but what what is in the record we can grab on to say it's enough i have the three things that i cited i think that the report that was done in two thousand and nine by the d is very probative an important because that's the first time that anybody in any of the records in any of the written records it came out that the fingerprint existed in one thousand nine hundred four that they had been run for a match and that they did not match mr carter the only reason that we know that the fingerprints had been run and that they did not match is because the technician in two thousand and nine made note of that in his report and that's what we've attached that's what we've relied upon for throughout the whole litigation because it's the first time that it ever came up that their fingerprints had been run and had not matched and given the location of the fingerprints and the nature of the assault and they're the only way that those fingerprints could have gotten on the on the bottom of the bathroom is by somebody getting up off the floor and it was i mean the victim in her statement says that she'd been orally abused by the assailant before he sodomized her and i mean that is the crux of