good morning and may it please the court the verdict in this matter cannot stand for two primary reasons st the admission into evidence of mr patrick certificate of innocence was unfairly prejudicial and reversible error introduced into the trial a judicial signing on the key disputed issue of patrick's innocence that was impossible to overcome the nd the jury was allowed to reach a verdict on the fabrication of evidence claim and related counts based upon allegedly fabricated evidence that was never used at his trial his criminal trial this morning i will address those arguments time permitting i will also address the failure to sanction patrick for conduct that the judge found was chilling in its implications for our justice system and we will rely on the brief for the cumulative error argument which includes the golden rule violations unless the court has questions turning to the good morning t neither that he wasn't coerced and his confession was true that was ard turning to the c e o why the admission of patrick's c e o why was reversible error because it deprives defendants of a fair trial the c e o i was a judicial pronouncement that the judge had already reserved resolved the key issue of patrick's innocence and thereby his credibility in his favor the manner in which the c discussed the judge was focusing on what the certificate of innocence says about the state's attorney's position on whether  conclusion in a civil case how was he used was was that how it was used in the way that the district judge was thinking about it yes your honor it was i mean the way this trial began was opening and closing closing was this is a three step process st he gets his conviction baking then he gets a pronouncement he's innocent and then now we're coming into trial and basically treating this like it was a damages trial and the fact is that once that comes in there's no limiting it to this is just what this st of all just what the state thought but let's backtrack even a few seconds on that which is the state didn't take a position on the ceiling it's just to see why i filed in the state takes no position and then asserts that liberty of prophet privilege as to its reasons behind it now what the district court says in the transcript is clear he says well that's some evidence of innocence release from prison and the generation and i as well as allowed him to demonstrate the required thing verbal termination requirement for his  case where innocence is the issue could ever be harmless error in fact there are multiple cases we cite in both our opening and in our reply brief which show that that it isn't harm harmless that in fact juries there are two problems with that one it takes away from the jury essentially a key credibility issue so there's already been a direct determination that he is innocent that is a key issue in this trial and the  nd thing is it's it you just will find so what the court order did was it sort of puts us in the place of having to go into trial and say it in front of a jury of twelve people and say well  that's he basically got it wrong now you jury get to reconsider it and you should kind of ignore that or push that to the side that's just not a realistic approach and that i mean to to really put  preserve the issue for appeal by getting a ruling on it in a motion in limine a and rule one o three b says that once you've raised it you don't have to do anything else to preserve the issue and the nd part of the issue and that it's not a brief i mean i'm sorry it's it's not a footnote in our post trial motion there was no case that required us to fully set out all of the merits of this and the other issue  that i would say to the court is the court actually does address the merits of it in the post trial motions ruling so that's in our view not a point well taken that we could waive an argument that we had had gotten  definite motion in limine a ruling on i want to go back to one other point that your honor asked me about which is the favorable terminations element to the extent that goes to favorable terminations there was other evidence upon which mr patrick could rely was his actual testimony all of the conflicting evidence about whether he actually was innocent or not could have come before this could have been used to establish the element of favorable terminations and even if it was so there was an alternative of last far less prejudicial ways to go about this and instead we had a judicial finding likely to be so highly we and given credit by a jury where there are discussions about stipulating to this element of the malicious prosecution claim your honor this is your ticket out of the question your honor i'm not aware of that but again we shouldn't defend shouldn't be put in the position of you have to stipulate to avoid something that's unfairly prejudicial i mean we're entitled to rely upon the rules of evidence and that those rules be enforced in any case whether we could stipulate to something or not it was still the burden of proof and we should not have been in this position of having this highly prejudicial piece of evidence come into trial again on the key issue about innocence  if the court has no other questions on this at the moment i want to move on to the fabrication instruction and on the fabrication claim we we are entitle q jay and it would be and it's pretty explained in the  o'connor before we get to the merits of this argument and the ins the claim of instructional error does this ultimately make any difference because there is no challenge to no separate challenge you've made some global arguments about why the verdict needs to be tossed but there is no separate challenge to the verdict th amendment involuntary confession used at trial claim count one  or the malicious prosecution count the state law claim and the state law conspiracy that sort of biggie back sun where the militias prosecution claim is are are those claims enough to support thirteen million dollars verdict assuming that we don't prevail on new trial yes those claims are enough to support the compensatory the reason this argument matters is there are two defendants defendants bertie and clint ski for whom this is their only source of liability it's fabricated evidence failure to intervene in a federal conspiracy and ask for the other defendants the reason it matters is everyone's been all of them have been subject to punitive damages and if there is last liability on any one count or in this case we say three counts they are entitled to a new r your honor that's the findings of the district court has to do with the justice system and what we're relying upon is that the district court issued an opinion that didn't mince words it says its conduct is chilling in its implications for justice system deeply unsettling that he felt entitled to that title to lie that his behavior was completely at odds with the goals of justices of the justice system and that in fact  quote in a case such as this where plaintiffs claim to have been imprisoned unjustly for twenty years cannot be overstated and then there's no sanction so our argument in this court is that's the abuse of discretion there  case but these other findings are out there from the district court that the conduct was chilling and all of the things i've just read and our argument that we placed before this court today is does that one to sanction what good morning your honor smith please the court after judge guzman conducted six days of pretrial hearings and a six week trial with thirty two witnesses and one hundred and sixty four admitted exhibits a jury found each of the individual appellants liable for one or more of the fall coersion fabrication malicious prosecution conspiracy and a failure to intervene and the jury not only found liability and compensatory damages against these individual defendants it also found that they had acted maliciously or in reckless disregard of mr patrick's constitutional rights and as your others know  that have been raised here and i want to begin by focusing on the certificate of innocence and i want to answer drugs sites question about a prove that his underlying criminal case was terminated in a manner indicative of innocence that's an element of the malicious prosecution claim at no time even though it was absolutely available to them the defendants never offered to stipulate that that element of the underlying proceeding was met as a way to avoid th medicines coming into evidence which you have accepted that stipulation judge i don't know if we would have accepted that stippling probably not we we you wanted this piece of evidence in it's very powerful it's very powerful piece of evidence importantly and drudge samy made this point when she ruled on this issue that terrorists case although it is a powerful document it is a document that says nothing regarding the c p d officer if in this as judge same you said in here it's the court rejects defendants argument that the risk of unfair prejudice would substantially outweigh the highly probative circuit certificated innocence especially because the search if you get of innocence does not make any findings regarding the c p d officer defendants and i was just i really can't i really can't answer that i think in cases where this where the search i'm sorry in cases where the state's attorney believes the person to be innocent either because of d n a evidence recanted testimony or a police officer who is found to put cases a numerous people like the glove are a case in those situations where the state's attorney shoes says to vacat move to vacate the can did the conviction of the criminal defendant i believe in those cases it is not at all unusual that when the next step occurs and they go to the chief judge and request the certificate that they take no position on the certificate and  my questions at the top of your opponent's argument about how this evidence was used in this case certain gets at this point it it's irrelevant and and inadmissible what was in the head of the attorney and the state's you know you can't use this as some sort of an opinion testimony about guilt or innocence let me try to clean that up if i may judge because i think the law really requires that the certificate of innocence absolute stipulation offered in there was none offer has to go into evidence to support the terminated in a manner indicative of innocence and the reason why that's necessary is that the establish that the criminal proceedings were terminated in a manner consistent with swift's innocence in other words i wonder why law it says as a matter of law that the mere moving to vacate a criminal establish the actually once and it's in would be problematic and we need to assure ourselves from the record that you were not attempting to use the certificate to prove to the jury d and the answer to the question is the defendant's never requested an instruction to caution that the guilt or innocence of mr patrick was not the ultimate issue that they were deciding and that it was only one factor for their consideration but judge guzman was so attuned to the necessary balance on this issue that he in the middle of the instruction  i want to give him instruction like that because i want to make sure with all this arguments flying back and forth about his innocence that the dury has a clear instruction on how they may or may not rely and so he crafted one that was then subject to input by all boyish in order to decide the claims in this case you need not decide whether the plaintiff actually committed the acts he was accused of in the criminal charges against him the question of whether the plaintiff is actually guilty or innocent of committing the acts described in the criminal charges against him may only be considered by you as one of many factors you may consider in determining whether his rights were violated as he alleges so it was judged goodman who had been hearing about this carping by the defendants that this was unfair to them put that in what did i step on one of your questions your honor before we leave this subject that instruction was was quite appropriate i think but it doesn't address the certificate of innocence in particular so it's runners question there was no instruction limiting instruction about the proper uses of the certificate of innocence nor was nor to answer question at any time was one requested by to defend ok judge just to tie up i would like to leave the c o i and move on to another topic but i want to just say one or two more things very briefly about  is that the certificate of innocence must be admitted and the terminations in a manner indicative that innocence element and i believe that four of the five judges have also stated that it is a relevant factor i want to say one less thing about the seal you have on pages one to fourteen the discussion between judge guzman in the parties about whether he was or was not going to allow into evidence the  rules i'm going to allow that and then mr scahill says to him well your honor i just want to be clear about this because i don't want to overstep anybody else are we allowed to attack the underlying nature of how the at twenty six street in our view that mr patrick makes false statements in his petition are we allowed to attack it in many different ways and it's in the in the order and we don't object we say that's fine and judge goodman says that's funny and that's how the trial played at the certificate of innocence when in and they attacked it every single trance they got an opening statement they said it was not reliable in closing they said it was not reliable and every time they put a witness they said now sir you didn't get a chance to go see judge people and argue that this was an unfair seelye and all that the police officer defense that no i never got a chance they had every opportunity you know to throw something out under four o three it has to be unfair prejudice and these defendants had every opportunity to attack the c e o and your honor the state's attorney's view on these issues did not go into evidence the state's attorney took the deliberative process privilege at the depositions of the various states attorneys both those that were involved and up the chain of command and they just would not say what their reasons were either vacating mr patrick's criminal conviction or for not taking a position on the c e o i so your concern about the state's attorney's views somehow getting into the mix that never came into this trial if we could move to the fabrication section yes judge i think your question to ms masters our answer is you know because i think it came from our brief is it really it doesn't matter if you throw out the fabrication instruction because of the findings of liability for coercion malicious prosecution and state conspiracy and so in a way it's a moot point you could struggle with all these fabrication i because it because as to the other defendants if they were only can found liable for three counts instead of four counts that that would be a basis throughout the punitive damages we disagree with that judge the punitive damages instruction absolutely nothing about the number of counts under which you for find a individual defendant live talks about the reprehensible billet he of the defendants conduct and that's not going to change from the jury's point of view if the judge got a single word wrong in the fabrication instruction the impact of the defendant's conduct on plaintiff which in this case was twenty one years and more twenty one years one month and eight days in prison and the relationship between plaintiff and defendant while that relationship was basically three days with mr patrick locked in a room the likelihood the defendant would repeat the conduct of an award is not made and the relationship of any award of punitive damages to the that they found acted maliciously or in reckless disregard mr patrick's writes i think as i understand the argument it's that a properly instructed jury would  compulsory violation of the right against compulsory self incrimination so the that has to do with the violation of a trial right not to have a coerced confession be introduced against the defendant trial and then the what everybody's calling the fabrication claim is is that due process claim not to be convicted in an unfair trial based on false evidence and if the a properly frankly even if it came to the same conclusion on malicious prosecution and the same conclusion about the introduction at trial of the coerced confession so thirty three responses to your question  number warrant in a way i think it's a moot point because no one disputes that mr patrick's confession fabricated confession once the jury found that the confession was fabricated that's not implicit in the th amendment count i'm sorry that finding is not necessary to for the jury to find for your client on the th amendment count the truth or fals yes i'm sorry i misunderstood your question your honor as to the fabrication of evidence claim oh ok i guess to break it down into three parts i don't agree with your other respectfully that even if the fabrication count would be thrown out let's say mr patrick's fabricated confession had not been read to his from her i still believe that in this civil rights trial the  prosecution and state conspiracy would be sufficient to continue to support the punitive damage so let's put that aside but to get to your core issue what else six was there at the criminal trial beyond his confession and impeachment lineup witness fame a quiet those are the only two your honor that we are serving with were used at his criminal trial let me give an example of one that was not used in his criminal here but it did affect his liberty in some it was the cause deprivation of liberty in some way which is the standard this court applies let's take not any more well judge you did at the heart cases and overruled which cases but the hurt case has been over judge you're over ruling in the hurt case as i understand it was not on this issue of liberty in some way but was on the near or were issue where judge woods said that both the i'm sorry the both the pretrial detention and the post trial detention was a due process violate i think you're reading it too narrowly or well drudge this is the claim for wrongful conviction based on false evidence being introduced at trial that's that's the due process claim and it's not under the brady rubric it's just a due process run for a claim for our wrongful conviction based on false evidence being introduced at trial judge i need to use my last thirty seconds if i may to give at least one but try i try to do two examples of a case where fabricated evidence even though not introduced at trial would still support a violation of due process and here's here's an example bertie england ski intentionally fabricate a document to prove that daniel taylor was out of whack up before ten o'clock mr patrick has to go to a criminal trial to defend himself when one of his co defendants was in a chicago police department lacka but he's not able to rely on that evidence for two reasons one the chicago police department trial because he couldn't he couldn't use that defense might sound and it was caused by a piece of fabricated evidence right but that doesn't mean the instruction was appropriated well this isn't about the scope of the proofs in the case it's about whether the instruction was erroneous well you're right you can use all that taylor offense to show that he was deprived of a fair trial and was convicted but even if your on were true if your honor were correct about the way that if you're if this court is going to take the position that every piece of fabricated evidence must be used at trial which which to me is completely inconsistent with all the  all those other issues are moot as to this case we have a bucket in this case we have a piece of evidence that the jury found the defendant the libel defendant's fabricated that was in fact used  so this this debate about whether it has to be used as trial or not yet moot as to this case right that's not what i was hocus ing and i was focusing on the on the improper instruction  that fabricated evidence some fabricated evidence was used to convict him at trial and the jury wasn't instructed on that and nor was the jury instructed materiality requirement judge we believe that both we believe that the phrase deprived in liberty in some way the jury that didn't survive lists ok but judge but it survived claims are separated out jury instruction used at trial could not once the jury found it was fabricated they didn't they there's no dispute that in the record mr patrick testified that they read  may i see if i understand your argument in a nutshell also said that even if the wording of the instruction is in error but through the evidence and argument to the jury it is made clear to them what they are being asked to decide that that is a nother basis on which and i want to pick up on a factual point and clarify the record that there is no evidence that a mccloy's was impeached at her at patrick's criminal trial with a lineup contrary to the representation made by counsel as we point out in our feet those citations don't support that claim and we cannot find in the record where that happens and it's her testimony in the record her criminal trial testimony right i guess i misunderstood it i assume that the transcript was from the criminal trial was in the record and was just missed cited or misquoted no it's not ok and if you re argument mr patrick's argument is that the jury learned that at mr patrick's criminal trial the lineup report came into evidence and she was impeached with it that aspect is not in the record as far as we can find it the citations otherwise that are used to support that or the volume of criminal trial testimony that isn't to the record it's to the directed verdict motion on their part and to mr patrick's testimony in which he states the only evidence against him in this criminal trial was his confession so so what was the line of evidence at the criminal trial now i don't know your honor that's not it's not in the record so there was no police officer who testified about the lineup we just don't know that's correct your honor we don't know what i'm representing to the court is the citations provided in in mr patrick's brief don't support the claim and we can't find it now is it in there and we missed it you know i can i can't swear to that but we've looked but in the civil trial she was a witness in the civil trial she was a witness and her testimony about the lineup record and giving the lineup report that is in the record  and relatedly to that point i want to also just stress to the court to the court that even prior to manual and lewis it was the law on the circuit that if you brought a due process wrongful conviction case you had to show that the evidence had been introduced at trial and used against you to convict and that's because of the causation requires the right if i can move on to the search in fact to the certificate of innocence issue the issue here i is unfair prejudice and whatever the state's attorneys thought or whatever the witness says well there were no witnesses the fact is that what came into evidence was something in titled order granting certificate of innocence and the  st paragraph was that says the court being fully advised finds by a preponderance of evidence that and in the box is checked for mr patrick is innocent that is the problem because this case was about his innocence and whether he was wrongfully convicted and we had a judicial finding to that effect on a key issue and i would point out that there's been no citation to opposing authority to our  issue and to the extent that favorable terminations was relevant there was other evidence on that the certificate of innocence proceeding is a separate proceeding that happens after conviction is vacated there's there's not a dispute that mr patrick had to prove that his proceeding was terminated in a manner and ticket of innocence but the fact is that the only statute states that certificates of innocence are issued for the purpose of the court of claims then going to the court of claims to award damages the statute also specifically states that they're not to be given race judicata effect now the impact of course from our perspective at least i having these come into evidence it's practically like giving it race to the cart effect because we are put to the task of then saying to to a jury of twelve people ignore what the judge has said