we will argue for point this morning you argue that the lower court erred in dismissing our state claim for malicious prosecution  holding that kevin jones acquittal barda brady claim under nineteen eighty three we would touch lightly on the court's erroneous ruling that the statute of limitations had expired the core evidence of a conspiracy to bribe jones of his civil rights and to put him on notice that he had a train for malicious prosecution was the handwritten feel modes of a happily frost the lead detective who checked out he determined that is false as he wrote on the field notes no transactions on trail fifteen because don and his mother martha had checked their bank records and saw the transactions on december fifteenth they conjured up a alibi that they were visit for businesses on the fifteenth but frost notes reveal that he went to those businesses and determine that the transactions occurred o at the time of the interview process would not necessarily you know on the afternoon receipt would perhaps irrelevant or at least not exonerate it did it is it the prosecutor givens and everybody ask about that though they did most receipt said it didn't help had the opinion that he did not help don because at the time or for some other reason because of the time now a further problem about the court ruling below limitations is that the trial court issued several gag orders restricting our access to the film we we next is and i've labeled this conspiracy a cornucopia conspiracy because everybody got a little something out of it all different benefit when the mayor of russellville instructed the chief of police to take some action to allay a rumor about her son baba been involved the killing he did that she next talked to the prosecutor and lo and behold the prosecutor immediately file and that's when the can fear she really took off now it was furthered when the chief investigator all this murder this did four or five times with the else he gave them not to the investigator from the state police station rose who asked for them twice but when they were obtained they came through  the entire russellville police department stopped assisting the investigation they had their plan to hang this murder own jones and they weren't going to  the development of a case against anybody else all this is documented calls does not exist according to cool vs murders case in this circuit nineteen ninety nine whether minimal further investigation following a compelling  would overwhelm probable cause against you here a convicted felon who had assaulted a woman before and was all parole had lied about his whereabouts he lived in the same apartment complex he is dangerous yet fourteen months after his d n a was left on the condom wrapper in the apartment he s saying that gives jones claim for damages and i don't see that where i don't even know where you're coming from with that i'm coming from this when you go into court room accused of murder and the police are framing you you're in denial years later we nobody knew of the beginning with the prosecutor we couldn't get it in discovery nobody knew it existed and i mean the whole thing was the whole position of the district court and i was in couse we say this we say we're entitled to the evidence that should have been developed kevin jones developed the d n a evidence and when he was excluded al we believe we have made out a good case that defeated summary judgment this shark it has already ruled in a white one in two that you may pursue  the probable cause against him existed he's done nothing as a district court correctly noted to negate the probable cause against him and he was acquitted this leaves him with the fact the probable cause exist is obvious based on the fact that he had the means assessment unit determine that he matched the profile of the suspect the murder and the opportunity he was unaccounted for for two hours there are other signs he failed the polygraph test it may not admissible in criminal trial but it is relevant for probable cause determination he september of two thousand and eight the field notes the actual copy of the field notes was not shown to the prosecutor before that but the contents the exact contents of those notes were given to the state police and todd stephy who was a member of jones's defense team in february of two thousand and eight in fact mr stephy went to autozone to check the alibi in february of two thousand and eight mr jones either knew it or could have reasonably known it and garner says that no matter what positive act of fraud is proven which there was none here the fact that it was available or could have been available does not allow the statute of limitations to be told that the prince of the fraud principle foreigner lies outside of a fraud line i don't know that i've ever done that deep your honor it to me that there was really only question was whether it was a when you're a police officer the actual notes at least the contents of the notes if asked you know are sometimes given over when he was asked for the contents of those notes he gave them over now it as far as this this evidence we talk of that we  to address them real quick one is that they can continue to peddle the idea that dunn's alibi on his mother's alibi was the same it wasn't gary dunn said i went to my mother's house my mother and my sister in law degree while i went to wal mart first dropped my wife off to work to the kids school went to my mother's house worked a little bit went to lowe's went to apartments eat lunch and then went to the gas station get cigarettes and then went back to my mother's house his mother says we went to autozone mother says or the fact that they are lumped together consistently is just not fair dunn's how about was different in fact if frost would have determined that the transactions had occurred on twelve fifteen then we have a problem then dunn was wholly inaccurate i don't dime and this is where the lobbying the frost lobbying of mr glover really draws an ira bit the exhibit t t actually is the best evidence of this it shows the entire polygraph examination about afterwards but an interesting line that mr jones left out of his brief is frost saying after bill glover said well if it's not kevin jones i'll be totally amazed so in furtherance of this conspiracy you know my sarcasm frost says well i just think that we need to eliminate securely eliminate everybody else and i think so far we've got everybody and i think we just systematically go down the line and knock him out this is not a conspiracy this the one thing they didn't mention today that they mentioned in their briefs and throughout this litigation is dr posey statement that quote gary dunn murdered a minor even after we got affidavit from dr post saying i would never have said that that's not what i do they continue to tell this court that that's what dr podia doctor never made that statement if he had even if he had made the statement it occurred three years after the murder a full two years i believe after the acqui now back to the legal claims again jones admits probable cause exists against him which makes sense he doesn't know nothing to negate the evidence against t m nothing to negate the blood in the land the fact he had opportunity the fact that he had the motive none of that conviction either way for any brady violation because brady and youngblood are poor into the same category as minor standing of that but the field notes of this if this were to go to trial if it was a prosecutor i that what i do i could swear that theirs or her case were applied break the police officers but i'll have to go back and research that but it's about a fair trial sticker versus green says that it's whether there's a reason probability that that  state crime lab said that was a reasonable choice to choose fingerprinting over a d n a sample now as far as any potential minimal further investigation after arrest there's no case in the circuit that requires arrest based on p c an affirmative duty to release only arises if the arresting officer ascertains beyond a reasonable doubt going to reasonable doubt the probable cause is unfounded have perhaps the state by state malicious prosecution claim which says that probable cause has to have probable cause and has to be continued or at least that's the idea and if we really want to have a discussion about who has more evidence against whom and whether or not negates probable cause against jones you look at all the evidence against john and i list it all out and you look at dunn's alibi which wasn't even proven false and a d n a match to the current two years after the criminal trial of jones and you're left with there's nothing that john just said to negate probable cause and ask such as in effect he was acquitted eliminate any cause of action i mean he may have he may have thank you very well only just deal with mr dunn specifically there whatever you think about what frost and bacon may have done of the city of russellville may have done the idea that gary done somehow done denied killing known to dirk's meyer he presented he was told to come up with he had he needed to find out where his whereabouts were so he he tried several weeks later him so he tries to reconstruct where he was some two weeks later through banking records and that and that type of thing completely completely proper secondly and even more ludicrously the allegation that i as a man my co counsel as appointed counsel years after mr jones's acquittal interview state's witnesses as somehow evidence  conspiracy against jones years earlier is is ridiculous i mean it just it just simply doesn't make any sense logically it doesn't make any sense temporally again we  were appointed counsel another thing that's important to realize with regard and this goes to the statute of limitations dunn had two trials april of two thousand and ten month of april two thousand and ten for three weeks and the month of january two thousand and eleven for three weeks and the prosecuting attorney to different prosecutor's special prosecutor beat us over the head with these alleged discrepanc in the various done done family members renditions of where they were that was that all came out in the april two thousand and ten so gag order or no gag order the done trials  absolutely public proceedings and there's nothing that could have stopped them from raising the raising the issue there the malicious prosecution how in the world garry dunn malicious could have maliciously prosecuted anyone he he had no power to accuse anyone he didn't accuse anyone else there's no allegation all he did was say i didn't do it and i miss is where i think i was that's all that can possibly and that that and it's those statements plus some reference to a completely inadmissible polygraph examination done by and mr dunn is is a has heart issues plus my meeting with frost contains an outright lie he stated that kevin jones fingerprints are on the base of the lamp the part of the lamp that we used to bludgeon dark brown dead that's just not true