asked to reserve two minutes of my time for rebuttal geneva fever was denied her constitutional right to a fair trial that's the issue in this case and as result she spent twenty two years for life in prison in an effort to demonstrate that this wasn't a suicide concocted this wild theory of substances being that minister made a wild theory counsel but we both know that that district judge who tried to her  unconvinced of any innocence here that that is true the murder of her husband that is true your honor that the trial judge was a trial to the bench and judge we after the evidence came in and convicted of fever based largely on the testimony of the toxicologist who had a theory that toxins were ingested administered through the rectum well that was one part of the theory but that's not that's not what he died from he died from another job that was introduced through injection well there was substantial evidence but then there was also evidence that not only did he have that but he had other things in his buddy well there was there was evidence that he had the amitriptyline evidence  nobody could demonstrate for certain that this was not ingested worley's mr ferguson obviously had this theory that it was injected in and it leaked out over a period of time that's not the issue that that we have  here mr ferguson was the only witness to confirm substances of arsenic and strictness that's his job toxicology it is his job but what happened your honour's at the end of the day we have  established that mr ferguson is frankly was at the time a fraud where he was but you say this but he had a guy with twenty years experience in toxicology had done it forever the challenge we both know what it is it's the betty lied about his graduation date and he lied about his qualifications to testify as an expert at trial your honor he the extent that he said he graduated in one two when in actuality and he also testified that he a graduate school when in actuality he had such a poor undergraduate record he was unable to obtain his degree until the late one nine hundred eighty s the question here is whether mr undisclosed prior acts of perjury in hundreds of criminal cases before june fever whether that was sufficient but we never say that he's a little perjured himself with respect to the toxicology at hand it was with respect to his graduation date that that is correct your honor however one of the most important things in any trial when you're examining an expert witness is to the c v is to cross examine that experts qualifications and what we have here is an expert who demonstrated a propensity to lie under oath he is the only witness at trial that it could establish these substances in the still iffy first body and he's the only witness that could testify that they came in through the rectum in fact it had a major impact on missile fevers conviction the trial judge inventing excuse me counter button was he was cross examined about that it was not cross examined about his pride about his qualifications oh no i'm talking about the scientific it's true basis for the charge that this was a homicide and he was thoroughly cross examined about all of that all of those findings that he made that have a scientific basis he certainly was qualified cross examined about those issues your honor but what was absent from this trial is cross examination over the fact that he had lied in other criminal trials really is this even relevant is is a this to this claim i mean the judge found it was a brit i mean it's a  yes and so the question has to do with ken who can be liable under nine hundred eighty three exactly or are i do but i do believe that this is a brady violation the court in the west  case indicated even the failure to disclose a single purpose single prior act perjury has brady information but doesn't the perjury have to be about something connected to the trial and not about you or the question your honor and the the issue is not so much did he not disclose information relating to the scientific issue and i'll get to that in a second because he didn't but on this issue of his qualifications the case with the criminal case was tried to add to the bench to a judge that same trial judge twenty two years later vacated the conviction on the grounds that this witness had lied hundreds of times in other criminal trials about his qualifications i don't know what all went  into judge weeks the fact that she served twenty two years that there was well that's true our however in the entry vacating the conviction he made it clear that mr ferguson was the linchpin for the  state's entire case without his testimony the case state's case fell apart and judge we said absolutely that the issue here is fairness did she have a fair trial and judge we vacated that conviction based on the fact that she did not have a fair trial because the key witness in the case was a demonstrated lie so here your job is to convince the court of appeals that the the what was withheld graduation da always throw it in there because it sounds much worse perjury but what was withheld was material and exculpatory or or had some significant value for impeachment that's correct you that's where it's a no i think this some of us might struggle with that i believe that we can catch some solace in what the trial judge that presided over the case judge didn't say i'd get a fair trial because he didn't tell me is true qualifications he said he didn't get if she didn't get a fair trial because he was a proven liar and i think we have to go back to the fact that it was only mr ferguson that he created this theory that these toxins were a rectally and so i would submit at least on the evidence of the the the prior acts of giving false testimony in hundreds of criminal trials that that not only would have had a significant impact on mr fever's trial come to the conclusion that the trial judge the purpose of presided over the case found it to be so important that he said you know you keep saying that but we know yes you're on the also said some some other things that's true he did say that he still had questions about guilt or innocence but he also said that the case the state's entire case fell apart and that's what we're talking about here did she get a phyllis talk about qualified immunity yes you are so obviously the testimony of her trial is absolutely i e you agree with that i believe that this court's many times yes so if you want to argue that dime store novel so called dimes well novel there are other that yes your honor there are other categories of evidence that th work with phil one is this manuscript by mr ferguson a book that he had written before the trial every one of the defendants in this case has testified that the job of government just caters to be neutral and to report the facts without passion of prejudice the reality is that this manuscript found its way not only to the coroner because mr ferguson testified that he thought that it was the coroner's official business but also it found its way into the police file and that this evidence was not turned over to the prosecutor had it been it would have had an input it would clearly impeachment material to show that mr ferguson had a vested interest in the outcome of the scope to show right to hope to show you yes and then there there are other categories of evidence as well that were withheld your honor that i would submit we've been talking about the the prior testimony in criminal cases in the in the manuscript that is more in the impeachment category to certain things the trial no reason to believe that they have a different opinion and then twenty two years later you have them saying something else and does that mean that that twenty two years earlier there was some sort of document that you should have been given i don't understand well we were given documents twenty two years earlier that said something different but in their depositions they testified granted your honor twenty two years later that the novel is you're talking about the graduation day the novel about judge no opinion he is the looking county coroner that arsenic would have entered mr fever's system through his mouth it would have entered orally he also testified that he had the opinion back then that strychnine could brady derived duty this court in modelling made it clear that members of the prosecution team police officers forensic investigators have a duty to disclose either it's called the tory evidence or evidence that can go to the impeachment of a critical witness i believe the brady dr judy your honor very simply put puts an obligation on the prosecution team to disclose to the prosecutor to the prosecutor evidence that could be favorable to the accused and that would impact her right to a fair trial but what do you do how do you define evidence e or impeachment evidence of what i mean if somebody has a thought never put on paper it's a thought it's a consideration it's an opinion it's to do all of those things have to be placed on paper and then handed to the defendant that you know last tuesday i was thinking and it occurred to me that maybe somebody else could have done for you know done the act i don't believe that that's the obligation however what we have here is a theory presented by the state that these toxins were administered rectally well let me just see if i understand this that that wasn't something that there's no evidence that the toxicologist came up with that theory because he was trying to railroad this woman into prison he came to that theory because there was no bad substance in the blood in the in the victim's blood when they ran the autopsy or ran the blood test and so then you say to yourself well if he'd taken it in orally it would have gotten into his bloodstream and since it didn't my theory is that it was introduced rectally the fact remains that that stuff was in him and you know however it got there somebody or the victim himself had introduced it one way or another and all there was was a difference of opinion as to how it got into his body i would say that that's true and the only evidence for these toxins being as bodies comes through toxicologist there was no confirmation of that but that you think he was lying about whether those i think if he lied about his qualifications for two decades your honor that that of the site's ok we need to wrap it up for now and  your honor's my name is gordon schuller appearing here on behalf of james ferguson i would like to reserve seven half minutes not for me but for counsel for other defendants just to split our time so make me sit down so i don't take  will do that for you i think there's a real issue here about the issues before the court today and i just want to make it clear that the district court said in its decision in light of the court's ruling real happy with that at this point because i think we should maybe talk about materiality and all that but the district court did not reach that question what the district court said was this toxicologist didn't have the constitutional obligation back in one nine hundred eighty eight and one nine hundred ninety and so we have to go through and i won't go through all of them but in the in order to find him liable it had to be clearly established the duty extended to atop the politest was it not clearly established that you can't lie on your resume well there's there's no other case involving lying on a resume but what the cases are about prior to that day each and every one of them if you read spurlock and gregory in those cases they all relate to intentional fabrication of evidence by police officers we don't get to the first forensic examiner until gregory in two thousand and six that's the first case that says that ok so what do you do about our cases that found  thousand nine hundred ninety because that's when the events occurred in this case but in gregory it actually was one nine hundred ninety two but they involve the intentional fabrication of evidence as to the fraction spurlock which was a sheriff's deputy that made a false video that paid a witness to convict an innocent man nothing like that happened in this case nobody intentionally falsified the scientific evidence that was presented just put in the words to fit that thing all the cases recognize that impeachment evidence is important it's very humbling and this person withheld the fact that he had been lying about his credentials for the last however many years that in our view is not material what is material is that he did he lied under oath at this trial he said my graduation date was one nine hundred seventy three it had nothing to do with the substance or the merit of his testimony well i don't think you're going to find hayes's that say that credentials are not material i think that you might in an instance such as this when a forensic toxicolog is not required to have any particular credentials but you're still pub you can be one without having a college degree and he's been doing it he testified that when he was in college he was working at d c i and he was testifying in cases of drunk driving cases he's been doing this is entire adult life and the only thing that he didn't do in terms of graduation he was one hour short and he was told the day before he graduated you're not going to graduate today  wife and a child he was working you didn't go back and get there we said it mattered to him it did matter to him and she was granted to a trial and it was dismissed without prejudice it's a murder case she could still be retried but for the passage of time i can't speak for the county prosecutor i don't know that i would want to try to try this case twenty two years later again it would be extremely difficult that we've see the result of that there's no been a real trial now and i don't think i think that we can  that that is because we don't have witnesses a memory they evidence is gone i want to go back to something that the appellant said just to make sure we cover this and that is the idea that ferguson was the only one that testified or had anything to do with rectal administration of the arsenic in the strychnine in the first place as you pointed out the cause of death was the amateur plane poisoning the arsenic in the strict time were not the cause of death but and for franklin county sent additional lab samples from the body of the seed and that's where this evidence comes in mr perkins job then as he opens up i would want to do this job but  in a sealed package any reviews the contents of the rock and the comb and he finds strychnine and arsenic and he testifies that there's not much arsenic there's no arsenic in the blood he later just some hair samples and says well that would have had been just a long time ago that was all in all likelihood or all but the fact that this was administered regulate is corroborated by dr fardell who says i'm going to send this stuff due to see these little white flags that's how we get to  and but i want the court to understand where that he didn't make up well i it must have been administered rectally out of thin air he found it there there's much more substance of that testimony it's also important that mr  was supervised by dr curry who's a ph d at ohio state in toxicology pharmacology and that all the reports that ferguson submitted to the prosecutor were signed by his supervisor dr curry who knows what he's doing who supervis ferguson work and had done so for twenty plus years that's how it comes down there's a lot more in this case and you've read a large pile of briefs as i was doing this week since it's been a long time since he wrote them and i'll stop to that he believed that arsenic was taken orally and it was that was that was always part of the state's theory the arsenic was taken orally in fact they didn't know why they didn't know how at the time we now know that he disavowed the questioning did the questioning actually cause him to disavow dr fergus administration not at all and that's why we put in our brief is when he was reading the death certificate and plaintiff's counsel asked him do you do you agree with everything that's in there and he said yes and then he said it again  later in the deposition you know he was seventy eight year old man testifying twenty two years later and we you know he may not have testified perfectly but he was pretty clear that he believed in all the opinions that he had written in the death certificate arsenic came but we do now and it's in the record at not ninety six that shape missler fever's daughter heather reynolds has testified in this case that she witnessed missler fever mix arsenic into williams orange suggest and you know when the plaintiff in this case talks about concocted evidence that's not an issue before the court that was an issue in discovery it was raised on summary judgment and they abandon all of the fabrication i did want to go back to judge white you raise the issue about you know what was clearly established in one nine hundred eighty nine one nine hundred ninety and it was not clearly established  that there's not one supreme court case or six circuit case which held it at that time that police officers are corners could be a lie wonder section nine hundred eighty three for failure to disclose impeachment evidence not evidence of back and say well if we go back through some of our cases it's clear that there's some duty on the part of police officers and forensic investigators to provide exculpatory information and what was clearly established at the time and and rightly so is that you can't fabricate evidence and you can't deliberately withhold evidence of innocence i mean all of the cases you know when they say when the plane it says this goes back to one thousand nine hundred sixty four there referring to barbie versus ward in maryland penitentiary i mean that was a case where the police failed to disclose that  fingerprints in the getaway car following up police officer shooting did not match the defendant the bullets that the defendant the bullets from the shooting did not match the defendant's gun you know jones versus city of chicago they based the prosecution an assault prosecution on an idea made by a child with a severe head injury and then when another detective uncovered they buried it literally buried it in in a in a drawer so you know gregory versus city of louisville a forensic investigator in that case withheld existence of hairs which did not match the suspect we were never arguing that evidence like that would not it would not be clearly established that an investigator had to turn that over the evidence certainly against d and detective valentine is not anywhere near it's not even in the same ballpark as that type of evidence and you know you look at the book angel of mercy angel  even had it which is disputed i mean it that book it relates to the investigation and evidence leading up the plaintiff's arrest and why she's guilty of  murdering her husband it would it would not have been reasonably apparent to a corner or detective even if you assume that they had it that they needed to turn that over that was indicative of the defendant's innocence the the nickerson statement against they allege that detective valentine had a third statement from susan nick you know the district court sum that up is even if you believe that when there's scant evidence that there ever was a third statement but even if you believe that all it shows is that william of fever wasn't injected or may not have been injected with a syringe that came from her work that doesn't prove her innocence and even their expert in this case agreed that there was a non therapeutic injection that he could not  specified the orders he was appealing and record entry eighty eight which was the order that judge frost dismissed the section one thousand and three claims was not among them second as we stated in our brief there's been no six circuit case which has ever held that a family member has a section one hundred three claim for an alleged constitutional tort committed against another family member and we go through almost every circuit almost every circuit agrees with that the most recent cases from this circle be clave playbook versus birch well of foods versus city of delaware where this court specifically said there is no claim for a family member when someone else is injured by constitutional thank you thank you your honor just briefly judge white you asked a question about the mental impressions of witnesses in the moldau in case the forensic investigators involved were done us they were medical experts and one of the issues there was that dennis testified at trial and failed to disclose the prior medical opinion that conflicted directly with the testimony she gave the trial so that's the type of evidence not believe would need to be disclosed under brady i just like to briefly deal with clearly established under the court's moldau a case that i would submit that in both down and gregory of indicated that this court does not view police officers and forensic investigators differently they are all part of the prosecut team this court then point is to court decided this on the clearly established and your challenge your best argument against that is what that the that was clearly established as of my virtue yet a by virtue of pointing back to the police officer cases pointing all the way back to earlier police officer cases and this court's decision in elkins versus summit county where this court made clear corresponds to the actions in the spoiler case itself the central question here is did jenny lefevre receive for her constitutional right to a fair trial and i would submit your hono that it truly if you look at the the hundreds of acts of prior perjury that was committed by mr ferguson that was not disclosed the westerfield case is right on point and it makes clear that one prior act of surgery can in fact interfere with the defendant's right to a fair trial and i would submit that under brady it's hard to imagine a clear case where you have a key government witness that really is the entire government's case against mrs le fevre and he doesn't disclose that he's perjured himself hundreds of times and if we want to ask was that material we have the judges the judge who convicted her of his own words who and he has told us what alex the favor is represented by mr moore tarski we think the briefs are very clear but your honor i would submit to you that alex lefevre i don't think there's any case on point in a wrongful conviction case  constitutionally effected by the actions of the state and convicting his mother his entire family was ripped apart it's put into foster homes directly affected thank you thank your honour's for your arguments