interesting good morning to me please the court this is a case where the district court got the fabrication of evidence claim completely right at summary judgment summary judgment the the court recognized that a fabrication of evidence claim is a valid claim and that this court has consistently held that such a claim sets forth a valid a valid constitutional claim and a constitutional violation this the district court cited and quoted this court's opinion in whitlock cited and quoted this court's opinion in petit versus chicago which actually made that crucial distinction so i wonder if you could take a minute mr same thor to turn your attention to the procedural way in which  was the fifty nine the motion which we would quite inappropriate in these circumstances because it didn't even satisfy it didn't even on its face of it satisfy the requirements for a  for a fifty nine the motion because it didn't show any change in the law it didn't show any new evidence it didn't show that the court had overlooked some important issue so it was an inappropriate forum to raise these issues  correct but the district court said doesn't matter will can do we'll consider it as a fifty b and that's what he did with the one aspect of the case with respect to causation where the defendants did raise that had been preserved in  well it kind of issue i mean it was a legal issue at least the just a quick thought there had been a change in the law did he i'm not sure that he did that he that's how i read his well he may have been wrong about that but i think probably was wrong about that but the supreme court has instructed us in the units term case that in order to raise something on fifty be got to raised it in the fifty eight stage because that just assures proper procedure gives everybody the opportunity to do whatever they need to do and so forth and so i'm i'm concerned that just any time you don't feel like using fifty eight you could just go over to fifty nine easy doesn't seem to me like something this the court had tonight but we agree and in fact this this was a problem in this case because the the fifty nine motion was made and it's  problem on multiple levels first of all because the the motion was not made under fifty eight secondly that the judge decides the fifty nine emotion on a ground that wasn't even raised by the defendants even in their fifty nine t motion around on you then and say sort of your therm to one side which maybe i should do but let's just put it over there for a minute what we have i think is the district court judge trying to make a ruling as a matter of law and that's the sort of thing this court routinely reviews so is there some problem with our just cutting to the chase and looking to see whether the judge was right or wrong as a matter of law well that clearly we have set question there has been some confusion in the district courts both up in wisconsin and here as to fabrication of evidence claims there are definitely have been some prior rulings that this court which i would say have been very imprecise about or have been imprecise a lot of times when you look back at those cases you can see it's because it wasn't litigated very well and this traces back to new some and and whether newsome and mccann are still good law after eighty three because it extended that principle of the kennedy concurrence yes to wrongful conviction cases as opposed to wrongful prosecution cases where there has been no conviction and deprivation of let me yes i and it's the latter category of case that the perrott principle applies to and that was the import of the kennedy thomas dissent which i have extended in our circuit but we've extended beyond the confines of the albright case as a factual matter to include wrongful conviction cases and that's a mistake yet seems to me and that's where the confusion arises so is is it time to bite the bullet and just say that and will i rule use them and can i while i think they can yes newsome i think it is more complex and that in fact when you look at newsome news all news from says is that you really that the legal holding is that you cannot maintain a federal malicious prosecution because of action if the state if the state's pruitt print provides a remedy now are as i'm sure it was going to be heard this this term yes so i your decision by june however that really doesn't matter in this case because we didn't bring a malicious prosecution claim and that is quite different claim it but it does matter because malicious prosecution under state tort law applies to one for convictions as well as wrongful prosecutions that don't result in a conviction and it appreciation of liberty it applies across the board the  does and the point of albright was that where there's a prosecution a wrongful prosecution but no conviction because there's an acquittal or the charges are dismissed then you're left with your state law remedy what that you can't under the due process go right because there's no ultimate conviction deprivation of liberty sentence to sustain a due process cause of action or at least that's the factual context in which the case arose but newson was a wrongful conviction claim where there was a conviction there was a sentence there was a years long deprivation of liberty and so to apply that case in that context mistake you know regardless of whether it's called malicious prosecution or something else it's really that important question is whether there's been a deprivation of liberty at a trial the processes of which have been corrupted or some other wrongdoing certainly that is the issue in this case because they are like there's a deprivation of liberty after a trial a conviction more evidence comes out like links it to the serial killer ellis and at that point the and  fact very fast i mean the i think what judge cites is asking you i mean it certainly i can see from our cases why you have drawn a sharp distinction between fabrication of evidence on the one hand which we've said i always bad and coercive obtaining of evidence on the other hand which we've said well you never know maybe sometimes people tell the truth and so we've put coersion in a different box but i think the question here now being asked by the court is sort of at the next level of an generality if you will in a higher level if the trial is corrupted either way what do do you so i'm sorry i'm not quite i mean it's as if i'm understanding judge sykes's questions correctly i may not be but she is saying maybe newsom went too far no matter how the trial was corrupted coup worst testimony fabricated testimony something else that we really should take a step back from from news yet although i actually knew some was not so much coercion  define our case very well in fact just to brooks says we were uncooperative right but the material point is that due process rights are always implicated at trial absolutely right and here we had a trial we had a conviction we had a sentence years long imprisonment based on false confessions that were put in evidence yes and found by the jury to be false yes that's clearly a whitlock fields claim that that's our position and so yes and we were a little perplexed that then the district court would changed tack so how important are the physical documents to your choice you case to avoid briscoe or get with you ok so we think that first of all in this case yes there is actual physical evidence and that makes a difference because that is evidence that he's created absolutely outside the no question is outside the the protection of absolute immunity and actually the supreme court has said that multiple thick occasions they just get it right back they said and clearly not they cited it's a little hard to understand why th by documents but just a conspiracy to talk about these confessions that the jury found were false would not be actionable but it's very hard for me to understand that also and my position would be yes the physical evidence does make a difference but or it's an additional reason why the the fabrication is not immunized but it's not a necessary conditions a do you think this rule i'm just trying to think of this because obviously when you have the physical documents as we do here it affects the ease of proof that something long before the trial ever starts going on what is good e mails you know among the members of the conspiracy saying let's all get together and say that he did it even though that he confessed even though he didn't that's not quite the same thing is the physical documents we have here th purport to be his confession that it might be concrete evidence would you say that that case so you heard is that the law ok so you're talking about e mails that were fabricated that were well then you know they say let's get together and fabricate evidence you know this whole and e mail that sa that it doesn't actually lay out the evidence yet doesn't say that it was mr avery's statement but it does provide us some evidence that there's the kind of conspiracy the judge hamilton is postulating so that would be evidence then of a in fact as they recognized in some of the cases in the eighty's there is nothing in one thousand nine hundred three that provides any immunity whatsoever and the only way that you you get any immunity whatsoever is if you look back at the common law at the time but it but they didn't link it to anyone else the difference came and actually because it was are a filthy results you can't compare those to p c r so they are measuring two different things so even with those are felt the results when they finally and finally is the operative word because they should and a lot earlier but when they finally got d n a from ellis the serial killer that was p c r you couldn't match the two so judgment about the rating claims that were presented at that time but i would appreciate it if you could identify from your perspective the brady claim that was first actually to the they fed in the details and that's a fabrication then and that's fabricated evidence right if you're you're fabricating the jailhouse confession and making it more credible by giving the informant details that he could only  gotten from the supposed perpetrator right i i would draw a distinction distinction between that and fabrication i think giving someone evidence yes it does allow them to regurgitate those facts to you as though it were within their own knowledge from so what else would you call this besides fabrication i would say i would say that it's providing information and that you have to disclose to a jury and to the prosecutor that you did provide that information so they say i thought you were saying this is essentially giglio evidence or something like that and also the withholding of the  higher that he didn't want to go ahead with the statement because he didn't want to testify to a lie so now if you believe that i'm for him for random scan i thought that was kimberly who said that told hire right before i testified this is a lie right so that's what came out at trial but we would respect a randolph that had cut that that was in his statement a summary judgment that that he had told said this in this obviously was never disclosed  you tried to revive the brady claim as to kimbrough after this came out a try actually we tried to revive it as to everything yes we yes we did came broke plus also there was that evidence from a koichi who never been deposed who said something that would you mind addressing that procedural issue that i began with because i'm very concerned about the just records pulling rule fifty nine easy out of the air and so was spontaneous ruling on grounds for not preserved in the fifty motion the the rule fifty nine motion i would submit was appropriate because we were arguing that not the sufficiency the evidence kind of argument but also fifty at fifty fi different posture of the case f e n by the time you got to the end of the trial it was no longer a claim it could no longer be a claim based upon alleged fabrication of the three  now that we have all the evidence in now let's say let's suppose we're doing it the right way it's a fifty eight stage you are not entitled to judgment as a matter of law we're not going to let the jury hear it we're not going to do anything else if you do that then you can then after the jury's verdict comes in and renew the motion under fifty eight that's not what happened here if the concern here however is that there's no fifty be marrying the fifty eight the problem here in this particular case is there couldn't be a fifty eight based upon just a finding of fabrication by an evil of a restatement you had more than that at the end of the plaintiff's case you had everything in play it doesn't the close of the plaintiff's case and the verdict it went from a claim that was based upon i don't know you'll have to know under under rule fifty you have to make the motion before the verdict that's fifty eight right and the advisory notes make it very clear consistent with unison term that you can the pre court can grant relief under fifty b only on grounds that were raised under fifty eight before the verdict that's not what happened here and they couldn't be raised  facts to have come in after the facts close and it goes to the jury i mean maybe if you make a motion at the close of the plaintiff's case you need to renew it at the close of your own case but you keep no one creates new facts after the case goes to the problem that was confronted there the trial was that at the time that any fifty a motion could be made there were claims of fabrication based upon not only eve reese confession but also the three snitches sure once once the jury verdict came back then we had the three stitches out and we could make only at that point an argument that we couldn't make before we could not argue but i don't understand them you know what we could argue before though the wallace claim that that a the exchange and in the initial arguments and i said i would submit that wallace did make a claim not only that he was coerced but also that it was a false confession but if you read that the plaintiff is the master of his own case and i certainly take your point that there were some facts in the record that mr avery introduced about coercive circumstances but he says that these two people that he never made a confession that these two police officers just sat down and wrote it up out of their own brains that's not a code worst confession claim that's a fabrication of evidence claiming well there was no harm done for them well except for the fact that i would if you look at his statement that the way that this this purported confession or statement or whatever you want to describe because he refused to sign it comes up comes about the officers present him with a hypothetical and he is agitated and says that could have happened but it didn't mean that that lends to the argument that this was a lengthy difficult co of fabricated like i never confessed and they said i did they wrote it down and i wouldn't sign it and there's no way you can make a coerced confession that's when they hang you up on the wall where they both along the same legal bucket you know because of the due process of the samaritans that's a separate issue can have a sensible conversation about that but we have as a factual matter distinguish between fabrication coercion that is true and in this particular situation what's unusual about it is that this confession does not stand independent of anything else it's not signed it's not subscribed by him the contention that it's a it's a separate piece of evidence but we submit that it's not it's really nothing more than the officer's recounting of what he proportionately said and not your is that that's a piece of paper and it really when he gets out whether he gets on the standard not actually if that had never been written down there wouldn't have been anything well maybe there would have been testimony from officers there would have but it's a weaker it's not us it's not as question i was going to say there are a lot of on cooperative defendants so it wouldn't surprise me at this stage of the game to see a concession that a defendant made and had buyer's remorse the minute he made it and refuses sign people do that all the time what distinguishes this is that we have evidence that this was just made by the officers there is evidence and the jury found it and i try and i am bound by it but it doesn't but if we're talking about the concept of what's a fair trial it doesn't come into evidence without the testimony of the office it helps right yes ok so what so i don't see your problem with us and i it doesn't come at all without their testimony so much and that well that i would submit is different then  distinctions between fabrication with or without a piece of paper with with the fabrication of something the defendant says rather than something other witnesses say distinct from i assume you would agree that planting let's say blood evidence or a boot print or a fingerprint would be actionable right absolutely and the crucial distinction is that those things are easily hidden from the criminal defendant this is not that would submit that that was why that was an important consideration in was i that's what what made that line more important here is that that's the difference between brady and perjury right i mean you don't it's not a brady problem to fail to disclose to a defendant you know well that you can be but but in essence if if the defendant was there the fact that somebody is testifying differently about it is not a brady problem the brady problem is failure to disclose right but we're talking here really about a need to do against illinois kind of claim perjury and there's a big big difference between perjury by prosecution witnesses and simply having a factual dispute about their credibility right but keep if i follow your question correctly on  it that the only perjury here that we're talking about would be that of detectives philips and hernandez corroborated by their earlier written statements well let's take that one step further if they had just written out notes in a memo on a legal pad i would submit that that's that's that's establishes a distinction here that's not a physical piece of evidence that's not the kind of thing that comes in notebook represents a deliberate decision to write down phony information that he was confessing when he was in fact not doing so and it's knowingly written down so that you can put something in the file that later corroborate what you want to say i may be agree with you that there's no difference between that and the report that we have but i come out at it at the opposite end of exactly the same without the document that's not what the district court found just record finds proximate cause well let's say there had been no no well let's say there are notes i mean you know no notes it's just the police getting up there saying lying on the stand right absolute immunity with the nose though it's a much stronger case for the police i would submit that it's not because the notes don't don't don't indicate that the the defendant the criminal defendant affirmed that that was his statement in fact it may undercut the state's case because it's not signed he refused to sign it and furthermore in this particular case as opposed to any other but the court to my knowledge addressed there is not only that one statement that's unsigned in which he a friend's culpability allegedly or at least it's recounted that he does and the testimony about that but there are two other statements where he denies culpability and that's reporting mr spock what's your your argument on this point is just flatly contrary to the whole theory for admitting prior consistent statements right when there's an attack on the credibility of testimony and there's a there's a recent fabrication or invention and prior consistent statements come in yes but to my understanding your honor those prior consistent same it's did come in at least one of them in the criminal trial you know talking with the officers prior consistent statements the written reports well again i don't know that i can i prefer to prescribe for you exactly the basis for which that statement came in in this particular criminal proceeding or i do know it did come in and i don't know that it came in as an attack on the officers credibility i believe it came in part and parcel of a denial or response and denial by mr avery of having been involved in the homicide let me turn you for a minute we can come back to this if we need to but let me turn you from in to the brady claims your theory seems to be that as long as the defendant stands up there and says i'm innocent than any brady information that would tend to show that would tend to corroborate that doesn't come in because he knows he's innocent and he shouldn't and therefore doesn't need to say this what he doesn't know here is how these various jailhouse informant jailhouse informants whether it's randolph kember oh can't mccloy came by their information it does he doesn't know about incentives that they had to testify in certain ways he doesn't know the kember oh was fed information and says he doesn't want to testify because it's false he doesn't ordinary information this changes the texture of their evidence in your intitled to impeachment evidence your title to put these things in it seems to me to defend the plaintiffs every people definitely renewed their brady objection on a number of occasions so i can't believe this was forfeited by them i agree was not forfeited and i agree that was where it was really presented in that in the form that the court has asked about before in terms of what exactly the nature of some of the alleged fabrications or alleged agents by kimber on the like were certainly with respect to mccoy if we're talking about brady here i would submit as we did not breach that it would be inconsistent at this point given the jury's findings of an absence of fabrication because that's part and parcel of wood of the evidence on fabrication that would be true if it were brady substantive but this is brady impeachment jury could find that under the circumstances they couldn't a found they wouldn't be around when statements of his had occurred if they didn't find them trustworthy they wouldn't found those statements to have occurred if they had if they reach the conclusion that there was no fabrication because part and parcel of then they'd but the jury never hears about all of this flip flopping because the evidence is not turned over to mr avery i trial in the criminal trial he's not allowed to impeach the trustworthiness of their statements and so what happens down the road at that point the criminal trial the finding securing makes about what didn't didn't happen we all assume this way we run trials we see only so makes a difference maybe doesn't you know but i think it does i would submit it does too but i'm not focusing on the distinction in the criminal trial i'm focusing on what happened in the civil trial and what happened in the civil trial is all that evidence was presented to the jury and to the court mr avery made a motion to reintroduce that every claim made the same arguments and i would submit they were it was an in what he later says is a false story jane that's not a jury could easily find that was not fabrication that wasn't under there the doesn't fit fabrication is just an inconsistent store but it would still be a brady violation and the jury was not instructed on that that's why i was asking earlier about a claim that was presented on summary judgment when these when the district judge rejected the brady claims correctly or incorrectly and that was not inconsistent with the jury's findings on fabrication or the lack of fabric ation by anybody true and that's the problem i have here of course with respect to this part of this type of brady claim is it's part and parcel with the evidence that came in which is not true the jury apparently didn't believe that that occurred because otherwise they would have found a fabrication thank you thank you very much i'll give you a final minute mr stan there are various names and really all i want to address is hamilton's request for me to refer to the portions of the of the record which dealt with the brady claim so with respect to the the summary judgment evidence that is laid out at pages fourteen randolph is not with them he says on summary judgment that he told the officers that what he had said was a lie i'm looking at fourteen and fifteen and i don't see any citations of evidence o problem procedurally all right which is as i understand this you presented some evidence on these jailhouse informant cases on summary judgment yes and then it turned out a lot more evidence came in a trial perhaps nobody was quite expecting at the time of summary judgment yes so the question about is about reviving the brady claims already claims that were not presented at the time of some research i think and we've got the problem of the jury rejection of claims against everybody except when it is against phillips so i'm looking for evidence presented that summary judgment that is not covered by the jury was that he told the officers before his testimony that what he had told them previously somebody and that's in this docket seventy six one exhibits and yes it is that's his that's randall the underlying evidence on which you're relying on that part of your testifying that he also told higher before he testified that what you previously said was a lot delivered in a certain good randolph identify who he told yes i believe he had he identified that that was higher