of the presumption of of prejudice and and i believe given the recent over decision there is a presumption of prejudice here that isn't rebut it but i also believe a ten times i believe this to be the best practices attempt to defuse it otherwise it looks like you're trying to ignore it or you're afraid of it and it has a greater more harmful effect in fact you know my experience in state court where i can allow to do more of why dear if i know what's coming in i will jump right there in the words i don't even wait to get to examining witnesses i mean i've had cases where i told yuri's you know mike my client tend to what was it stake that they should be able to defend themselves by saying well oh well one of the reasons i was making efforts to get her disciplined or get her terminated and this case my colleagues terminations really her terminations his initial reaction was not to terminate her but to demote her because he knew that she hadn't had any experience or training in conducting investigations this is the first on you've ever done she'd want to get experience and training and doing an investigation necessary in order to present a truthful report  the company but much training that you need in order to investigate something as straightforward as that well let me explain what happened she did the simple thing she needed to do was look at mileage lots which is one thing she did and she determine from looking at mileage logs that two individuals were using state their calls almost on a daily basis to commute to and from work in fact one of them with the excuse was well they're being vandalized and we need to drive them away if she did that if she had had experience she could have stopped her investigation right there and just simply said here's my report i've looked at the mileage slots according to the mileage logs it appears that they're using these cars on basically  daily basis to go back and forth she did more than she needed to do and she interviewed a bunch of people she interviewed a lot of people who were potential witnesses did you see them driving the car how often did you see in the drive in the car and she took take statements but she didn't have the resources to have them transcribed and she was being rushed and pushed to hurry up and finish your report she was given this deadline hurry up and finish report we need it we need we need it in her rush and in her haste and without having the resources to have these tapes transcribed sheet from her from her recollection from her notes she wrote a report that inaccurately summarized what some people told it didn't matter whether somebody told her i see them using it every day or often it was she you know and what she did it three days from her notes in her memory she miss characterize none not one hundred percent sure no motive to lie about it it didn't matter whether somebody said i see them using it often frequently daily once in a while whatever whatever these people said at the end of the day it didn't was put into region two and working for mr peralta african american woman who had an unblemished career with his state of california who had worked with the employment development hartman had been recruited by the of corrections had numerous promotions had had no warts no discipline no complaints and incredible record when you think about it from a black woman an african american had a track record and if you look at that track record and then look at the cauldron that she was put into when she got to region one in all the the pickering and the fighting that was going on there and what you want to call it political personal client didn't have the benefit of it as you would have to take the transcript made of the taped interviews and you could look at the transcript of the taped interview yes in a perfect world my client if you'd had the time it would have been nice to be able to sit around to listen to the tapes and try to make a more accurate report but the issue really comes down to she had no motive to lie in fact she had actually had a motive to say that the vehicles weren't being misused because under state law the people who were misusing the vehicles including their supervisors could have been charged financially economically she could have come out of pocket potentially for you ask a jury to decide what otherwise i believe is a close question and that is was this just an innocent mistake was this somebody who was rushing and somebody who wasn't trained to put a report together that yes maybe it misquoted what some people told her maybe it was not technically totally accurate but the conclusion was accurate the result was accurate yes these individuals were using state cars on virtually the only basis to commute to and from work and what was interesting during her investigation they were told to stop it and then the department came out with a new written policy or just clarification you can't use these cars to commute anymore so and this happened right in the middle of her investigation and so it seems to me  miss if mr trujillo and the director looked at this and thought geez if she didn't have training this may have been just kind of more of a and it's a mistake as opposed to intentional effort to lie when there is no motive to lie and the fact is yes these vehicles were being improperly used at least from from from the point of view of what law it was just sounds like a fine argument closing argument to a jury but that was done those same statements must have been made to this jury they were not a jury must have taken into consideration not only her prior bad act but character evidence goes both ways she must present some evidence of her good reputation in the workplace and a decision was made by that jury with respect to whether or not this was in retaliation or a violation of law or a proper terminations well and so es so i can send it to somebody in a candy box oh i i heard that your client was involved in shoplifting oh i heard that your client was was being acted in appropriately in a court proceeding that had to do with her son being shot but the idea being that she was unprofessional and inappropriate in a court proceeding and all of the sudden evidence that a jury should not have heard being of asking somebody to bring to hunt fishies so she can send it to someone she believes is dating her husband i mean things of that how do you put that on your mind honey can you say that's not prejudicial i mean i as a traveler i know how much when i'm in trial with with with other sides how much the incredible effort has gone through motions the eliminate to keep out sometimes from what seems somewhat in oculus evidence is being unduly prejudicial and i submit to you as a trial judge judge where i mean you're familiar with motions in limine they were parties come in and say you can't  in my drugged drive drunk driving convinced conviction where you can't bring in that i was arrested or convicted for marijuana possession because i can't get a fair trial and i'm going to be unduly prejudiced of that your years i was convicted of drunk driving trial judges and trial attorneys now that juries are fickle that juries oftentimes will be very influenced by character of evidence which is why we have a rule for all for there to begin with i mean the federal court the rules recognized secure by his character evidence generally inadmissible and rarely it mid and often times when we get into a for a for b analysis over well you know is there an exception to the to the rule here or should we let in character evidence then for zero three raises its head well wait a minute isn't the pleasures full impact going to outweigh the probative value and  trial attorney i'm very sensitive and i know most trial attorneys are very sensitive to character residents coming in because what does it do it influences and prejudices jur good morning my name is michael sweeney i'm with the california attorney general's office and i represent the five appellate is indeed counsel didn't act as arguments before this jury and after four weeks of hearing the evidence in this matter the jury found against mr skokie on the most basic elements of her case the jury found that she was intentionally and recklessly dishonest in her speech and that there was no retaliation for that speech submit that there are four reasons that this appeal should be denied and the judgment affirmed one the jury did indeed find no retaliation appellant opening brief does not challenge that finding in any respects whatsoever indeed it doesn't even acknowledge that finding to the invited error doctrine applies in this case three bouncing is not protected i submit appellant has waived any objection to that that evidence the record before this court does not contain an objection to the evidence that appellant now for the first time dis intended i'm referring to the explicit order written by the the judge if you're referring to trial testimony our trial statements i suspect that's what he did say but what's critical here is this because we don't of them by plaintiff or defense at trial i have not reviewed my opening statement it's not i don't believe it was actually transcribed your honor it's important to address something that the straw man that has been set up here is to  this court that that evidence was proffered and it related to the now healthy defense the record does not reflect that whatsoever i submit to this court i never proffered that evidence undermount healthy a smit this court judge carleton did not admit that evidence under mao healthy the critical distinction is this there are two forms of speech in this case speech one was the stock in report speech t ninety seven and that he engaged in this this retaliatory conduct and that's my evidence to show that he was out to get me and there's a suggestion by counsel that he elicited and admitted the sevens to quote diffuse the prejudice on pack that distorts the record significantly in this case i direct your attention to pages fifteen to sixty eight of the record there are literally case one that her speech as to race discrimination was truthful and to that defendant had a motive to retaliate against her for that speech that's why the evidence was relevant prata testified to explain why he was engaging in this conduct he he did take action against her it was progressive discipline and it was building over the years a critical a very critical point here is this defendant profit did not terminate briscoe king he was no longer her supervisor the allegation against profit is not that he terminated briscoe king the allegation against her alter is that essentially he started the ball rolling and soiled her career and that somehow damaged her in the eyes of the department of corrections because he served an adverse action against her in ninety five that he served as a counseling nemo's in ninety four and ninety six not apply in a civil case i could not find a single case that stood for that proposition in fact i found cases that applied they all or versus united states decision in a civil context and indeed found it in the context civil rights point of all that from other circuits but i did not find one case that suggested that the u s supreme court's decision in all or is limited to a criminal defen what should not be lost in this case however is the fact that the speech at issue here is not protected speech and the first amendment i submit there's two reasons first the speech that we're dealing with is i not a matter of public concern and second after conducting the pickering balancing the interests of the state as an employer far outweigh the interests of burst working as an employee important thing to distinguish in this case and that is argument about what the speech says and what the speech actually says because what the speech actually s i think it's slightly different than the argument as to what the speech says and a critical point here is this miss briscoe king was requested to collect fact only interviews from witnesses look at some documents report back back to us regarding your immediate subordinates she was not asked one opinion she was not asked for her judgment just go click fact and keep in mind she's a peace officer this was a confidential internal report to be used to potentially and the words of her report speak for themselves let me digress for a moment the jury did find unambiguously that she was intentionally faults in that report in substantial and material ways for the first time in this case appellant has taken the position that there is only one sentence that is the matter of public concern that's the first time in this in this case that position has been taken it was not taken at the trial court level it was not argued to the jury the first time has occurred it's here on appeal i submit that's a deceptive way of bypassing the substantial evidence room because the jury heard all the evidence they saw the transcripts they heard witnesses speak they reviewed the report they heard other circumstantial evidence they concluded that miss brooking was intentionally false substantial and material way as now yes although he didn't if a parent had argued that there's only one sentence for this material then the jury addressed that and concluded she was intentionally faults  that one sentence if they're making that argument for the first time in a pill i submit that's been weighed and the jury verdict stands with respect to that finally now transitioning to the issue of the pickering i want to break out the two forms of speeches and began with the starting report i'm not sure if there's ever a situation where intentionally speech can ever be protected speech in the first amendment but assuming hypothetically that it can in the context of the pickering balancing i  that the the interest of the of the state as an employer vastly far outweigh the interest of the employee to engage intentionally false speech specially given the context of this  again she was requested to collect fact an internal investigation regarding her subordinates report back those facts she purports to report fact there is no reasonable to protection of that report that she is reporting opinion or judgment or anything similar and i was somewhat confused by the investigation itself because it started as an investigation of whether or not the private use of the government on vehicles was occurring and at the end of the day it sounded as though the policy permitted such use if certain circumstances were present which seemed to present here namely  going to and from work was assignments that would have to take place first time during the day and it seemed as though that would be a policy of course that would be known by those who asked her to do the report or part of the assignment in other words there are certain circumstances where people can use their private vehicles figure out whether or not they're abusing that as opposed to figure out whether they're using it for private use do you understand i do understand and indeed there w three to seven days of testimony on this topic alone a great deal testimony was on this topic persons who were long term employees at the parole division were well aware that there was a well established policy that probation officers don't leave state vehicles in the parking lot they're located in terrible neighborhoods frankly they're subject to vandalism and theft and that the supervisor then the office were directed encouraged to drive those vehicles home at night time this briscoe team had been given explicit instruction to go investigate to ensure that her subordinates were driving cars strictly within that policy that was the parameters of her of her charge ensure that they're driving it within the parameters that policy or if they're not what's the other circumstance she produced a report and the record reflects that  people who are in the know such as defendant profit and others we're incredibly confused by her report it frankly didn't make sense then because it didn't it didn't measure the policy and measure  conduct and whether the conduct fit within the the the policy it was very confusing to them it didn't answer the charges she'd been given and it was it was  repetition of what witnesses had said regarding our purports to be a representation of what witnesses had said regarding the use of those vehicles significantly that report coming from hi above the c d c directed that some action be taken against those employees based on this breast bookings report the employee relations officer commenced preparation of those adverse actions they were going to be disappointed based cooking's report when the employee relations officer was compiling the data she discovered repeated lies is significant and false and substantial and material way and the jury concluded that was intentional returning to the pickering balancing given that finding by the jury in all the other factors that this is the report applies in the context of the speech as to racial discrimination what the record actually reflects is every time mr prata attempted to supervise this very difficult employ mistress looking accused him of racism racism because of his attitude towards that dumping what the record actually reflected was he had been grooming an employee for years to take that position that employer was funny long all over who's african american he wanted that employ in that position who had been grooming and had been in the federal division for decades this was a king who came from the institution side of the department and he felt had been dumped on him despite the knowledge that that was his chosen successor mr briscoe king accused him of racism and there's numerous other examples of that without any evidence of bias of actual bias by mr prata the consequence of these repeatedly recklessly false accusations against the was he literally gave up supervising this in the first looking and there was witness after witness testified that there was a dysfunctional relationship between evidence is a confession that's prejudicial but it's only if it's improper yes and i don't think he's can see i don't think he's arguing that that was proper it's he's the argument seems to me i brought it on to exclude in any evidence relating to prior bad acts which were not included in the notice of adverse action which gets us right smack dab in the mind healthy because the man healthy argument is if it's not but this is a bit more problematic perhaps and i appreciated at the time and then he talks about this specific adverse action well he notes that although the specific adverse action that she complained of was the discharge we were just here over the distress we were litigating anything that happened with her and peralta back in ninety three ninety four ninety five this lawsuit was only about the discharge you quite properly pointed out these individual defendants may not have been in any  not we're not responsible for one when is the notice but then he said that that doesn't get us to amount healthy problem and then he goes and talks about the mount healthy issue and on the following day in the morning we're talking about and the