united states and this honorable court oh good morning everyone welcome to this morning's hearings before the th circuit court of appeals we are in remote location and we are fortunate to have the technology that we do to continue our hearings and clement weather and through a pandemic and so we are fortunate that we can tell ourselves of these tools and continue to focus on curing and deciding cases and so we thank you if you can also who have made it possible to participate in the form d that we have made available was wearing the night his wife died went to trial in february the twenty i will st discuss three specific evidence yuri rulings in addition to those cited in our brief which constituted reversible  that the death of lisa jennings was a murder the rd being the repeated and improper questioning of jennings damages expert as to whether his post traumatic stress disorder could have been caused by overwhelming guilt for having killed his wife this court reviews the district court's evidentiary rulings for an abuse of discretion the question then turns to whether the air was harmless and the error is harmless if it did not have a substantial influence on the jury verdict st i'd like to discuss what happened in the district court generally the applicable legal standards that show reversible error here are set forth in this court's decisions in white versus mckinley and valid as versus walk in white holds that in a case like this evidence evidence tending to show instance is admissible if it is probative to other issues in the case and that evidence of guilt irrelevant to issues in the case cannot come in while weighing the probative value versus the prejudicial effect but that's not what the district court did here just the court ruled that jennings had opened the door generally to a discussion of probable cause and gil opening the floodgates into discussions of irrelevant and highly prejudicial evidence this is completely contrary to the highly limited doctrine of door opening set forth invalid as for two reasons st under valid is you can't open the door to inadmissible evidence e that i might write about that you are not wrong your honor there was an order before the trial that said however that order was contrary to the principles of ballots which said opening the door is not a general proposition that we have to look at each piece of evidence way to probative versus the prejudicial value and it's not an excuse under valid as to open the floodgates to prejudice the rebuttal evidence offered to cure the error must be commensurate with the honor however i believe that we have gone up that hill because i believe that the district court did an inadequate analysis here and did not follow the principles of opening the door but the nd point i'd like to make is that jennings did not open the door because jennings never argued there was a lack of probable cause what was argued were issues relevant six to materiality and bad faith actually the words probable cause or lack of probable cause were never used however it was a general proposition that the district court opened up they didn't do the proper analysis they made a blanket ruling and even allowed the defense to make foundationless accusations of murder the st ruling specifically that i'd like to talk about that violated these principles  white and validate this was when prosecutors gave opinion ringback testimony that he had sufficient probable cause to charge janet's st this was not relevant probable cause was not an issue in this case and jennings never argued there  probable cause nd the air was not harmless because it likely had a substantial impact on the jury because of the weight that a prosecutor's testimony is given by a jury this is contrary to white because the court did not w probative value versus the prejudicial effect instead and contrary to validates the court open this opinion testimony under a blanket open the door theory does not apply here the evidence it made it tended to show innocence was relevant to materiality thus door opening didn't apply moreover under valid as opinion testimony from the prosecutor was a wholly disproportionate way to rebut evidence of innocence because the prosecutors influence i'm wrong about that i believe you are your honor i would respectfully disagree in saying that the evidence that would put on though some of it did tend to show innocence it was to the materiality of the gunshot residue test what it meant in the totality of the circumstances and why it mattered so when you looked at one example that was given was when in opening statement counsel for jennings said that the gunshot residue test showed that the death was more  suicide well that's exactly the materiality of that suppressed test that's why it was so important and that is an element in one thousand nine hundred and eighty three brady claim so the theory was not that there was not enough evidence to charge him like i his lack of training his last lack of education and studies that he should have known about so that went to his bad faith in his investigation so that when the when the when the other side comes back and says there's  testimony about sufficient probable cause is not admissible evidence it's not evidence in the record that is inadmissible opinion testimony from a prosecutor this is not prosecutors owner came on that he had concerns that zellner would get on the stand and called the death of lisa jennings  do the same thing birds of the call of suicide no your honor saying it was a suicide st of all like i said that went to the materiality that is what is on me suggesting death certificate and they can't prove otherwise so there is a foundation issue here ok there is a foundation issue where they cannot prove that a homicide or a crime was even committed the only thing they had to show in homicide  discredit later discredited bloodstain opinions ok once those were discredited they couldn't even prove a crime occurred which is why they dropped the charges so for them to be able to bring in baseless accusations of murder especially through opinion testimony by the prosecutor was highly prejudicial and not relevant and certainly not proportional to rebutting specific issues that's what valid us tells us is that you can't open the floodgates of something generally it is a and white says the same thing it is the piece by piece analysis and so a prosecutor's opinion testimony is not relevant or proper and to go on during his testimony co murder after he we had explicitly had an agreement with the court and the other side that he would not be able to give that type of opinion and would not be able to refer to the death that way within minutes of him getting on the stand he did it and believability on what the prosecutor says it is highly prejudicial to have a baseless and foundationless accusation of murder especially where a homicide cannot be proved but here a prosecutor's opinion testimony is extremely harmful and to go on you know he was allowed to testify to probable cause materiality of the suppressed evidence and the jury heard jennings requesting specific and explicit instruction disregard the reference to murder and that instruction was refused therefore when they heard an explicit instruction that was refused that raised the possibility in their minds that they could consider it right after the exchange the court compound harm the harmful nature of the term murder by later in stoner's testimony referring to him as an able prosecutor in front of the jury the air in refusing to instruct the jury to disregard that statement was not harmless and his opinion testimony very likely had an undue influence on the jury the next thing that the court did that was reversible error was allowed repeated and improper questioning of jennings damages expert as to whether his p t s d could have been caused by overwhelming guilt for having killed his wife he was allowed to ask dr weaver six times and over the repeated objections of appellant coun p t s d could have been caused by overwhelming guilt for having killed his wife this prejudicial the a prejudicial and incredibly harmful nature of this questioning was displayed clearly when dr at weaver was asked the same question a s time by a juror the court allowed this line of questioning that should have been prohibited under valid us the evidence was not relevant because dr weaver was assessing the psychological impact of jennings incarceration a brady violation had already been determined to have occurred by the missouri courts and therefore his incarceration was found to be wrongful in his convictions thrown out her assessments and findings had nothing to do with innocence or guilt but the impact of his wrongful or respond on this particular issue right now here that says this one is on a plane to review at least parts of it because there is no objection so i want to give you a chance to respond and let me know whether there was an objection stated or not are you referring to  because we objected several times and patty yes you objected that it was not relevant to her analysis and that was around transcript pa and at that point i i objected to the entire line of questioning and the judge allowed it to continue but there were at least two objections made ok thank you thank you your on it the only testimony that was listed on direct examination of dr weaver regarding the night lisa jennings died was background information that was given to dr weaver during her assessment of jennings it did not factor into her analysis she made it clear at several points that her analysis was focused on jennings psychological function not a fact finding comparison therefore under valid as there was no information a listed on direct examination that opened the door to rebuttal with accusations of murder even if there was confusion about the role this background information played in her analysis because she was already cleared up by counsel for nash and two different points where he pointed out that the narrative  a sentencing assessment from the underlying trial that she had reviewed differed from jennings account of the facts to her she clarified both times when she was asked that her focus was to look at the psychological impact of his incarceration and the background information did not factor into that and even if they were allowed to rebut background it background interview jennings gave to weaver this case is analogous to valid is where the court found that the bottle thank you for as i understand i have a breakout indicating there are three attorneys that wish to speak for the air please two minutes for this nose or and then your argument on this issue during her opening d this morning and nor was there any argument on this issue involving knowles and her reply brief we'd like to stand on the arguments in our brief and request that the decision to grant summary judgment  and qualified immunity grounds be affirmed unless there are any questions and that w this case is markedly different because the appellant in this case made that issue the guilt of him in the underlying criminal trial the central tenant of their case that's exactly what judge epps found in the motion for any trial is ordered denying that and that exactly what the evidence is furthermore your honor plaintiff even references the fact that they proved that they were page eight which is twenty four dollars to eight dollars paragraph twenty five and i will quote plaintive clearly in concisely proved that he was innocent none of the issues whether he was innocent or not were not were relevant to this particular case the issues in this case according to the instructions given to the jury were confined strictly to whether or not the gunshot residue test was not given to the prosecutor but it was bad faith and whether that injured the  appellant in this case however as already mentioned before did the district court warrant plaintiff's counsel if you basically if you go down that road and prove or put on evidence that there was no probable cause or lack of probable cause or do anything other then the courts is merely state he is innocent of murdering his wife or his convictions were vacated and the played in the pellant went far beyond that this case their opening statement lisa jennings committed suicide that wasn't the only comment in the opening statement they brought in a blood expert to testify the blood evidence showed that he was not guilty of one hundred percent proved that no one was there when the shot was shot was fired the plaintiffs made their case strictly about whether or not he was guilty defense was allowed to rebut that evidence and we brought in arrived the judge later looked at it and found that there was no evidence in the record the trial transcripts of showery and instructed the jury later the next day that to disregard that comment mean that's one of the problems i'm having and so yes i realize you have a chance to rebut it but i'm just trying to figure out how you prove materiality of the evidence that that was not disclosed and the evidence of the evidence the gunshot residue evidence reality is important in this case they present in evidence of their their gunshot residue expert and he testify concerning what his opinion was gary hart who is the actual criminals for the highway patrol who did the testy also testified that in his opinion that it doesn't tell you as much as you think so that those who should materiality were correct but the blood evidence and absolutely no bearing on the  confidence not at all and yet the plaintiff insisted on putting the evidence in trial to show he was innocent they needed a point of their case to prove his innocence so good it's not a matter of whether or not the b evidence whether it's material or not is not relevant for this case with these particular facts on this claim if there was evidence about blood pattern analysis being fraudulent or improper things like that materiality that would be relevant but those are not those are things that the point of added to the case to make their case a lot stronger including a substantial amount of evidence which some of it did not pay and out the way they risk testimony was supposed to be an independent evaluation and that's what she testified that she was going to be giving an independent evaluation to determine his psychological damage of his incarceration however dr weaver showed her bias at the very beginning in this case very good in her testimony when she started talking about how he was wrongfully arrested convicted and incarcerated it wasn't just a wrongful incarceration that would have been acceptable would have tied our hands to simply talking about incarceration and the evidence that was left out but when she's was asked what do you mean when you say wrongful arrest conviction  prosecution her testimony was well he was charged rated rested in charge of a crime he didn't commit so i call that a wrongful arrest well if he didn't commit the crime then there's no probable cause there's no probable cause that we are allowed to get into rebuttal evidence of probable cause and that's exactly where we need wit prosecutors owner never testified the defendant was guilty of murder never testified it anything like that he what he did testify was there was probable cause to charge him and in fact it was a probable cause determination in this case and probable cause was found which is why the district judge  whether he killed his wife or not is not relevant but the jury could not be inundated with evidence that he didn't commit a crime and still be allowed to keep out rebuttal evidence that he did  good in the era like dad we believe was also cured in closing arguments when it was stated that the issues concerning whether he's guilty or not a one hundred crimes are irrelevant to this case the instructions concerning the policies of the highway patrol that was put on as evidence by the defense that is not the trooper's duty with patrol to send out lab reports and the evidence to show that the lab report box to be mailed out which is required as the average show for it to be certified by a clerk and two copies certified copies mail that we know for a fact and there's no evidence to dispute this that no storify copy was ever 's file at the patrol now question readily there was it wasn't turned over that's not it issue in this case but the question comes up whether or not sergeant nash intentionally withheld that or in bad faith withheld that report by the defense showing clearly that patrol not him not just a supervisor the highway patrol designates whose duty it is to send not that lab report to take that away from the a prosecutor from the office or as trooper nash testify to eliminate the same exact facts that be alleged here if there was the other way around where the trooper was required to do it  get the mail look at it see two lab reports and says something is not helpful to his case or he believes is not helpful and just thrown in the trash bin and say i never got it but the only way they can show that trooper nash was listen turned over materiality at that point is irrelevant whether it's material or not it could be the most material thing in the world but if there's no bad faith which is the other part of what they have to prove there was and there's there's  is the focus the case mainly on whether or not he committed this crime by bringing in a computer expert to talk about tampered files which allegedly didn't have it had nothing to do with gunshot residue test and yet they were allowed to do that even though they had been wark and there cross examination that with this show that said of using the word tampering such as altering your changing to make them fraudulent they were accessed by a trooper without using proper equipment now does that mean it's does that have the fit with bad faith on the troopers part no but the bottom line is this is the evidence they put in they went out of their way to make it judge upset the innocence of the plaintive the central tenet of their case this case could have been tried to find a trial this could be a case to be tried in about two and a half days if we stay if the facts were stuck to that rebuttal evidence was proper given still limiting us to rebuttal evidence prosecutors owner was only talk to law to talk about what he does what he did in this case and that he would not  prosecutors are not allowed to give their personal opinions on whether or not a person is guilty or not not allowed to give their personal opinions on the evidence they're allowed to give rees books arguments about the evidence and what those conclusions may be but they're not allowed to say i believe that this guy killed it because i'm the prosecutor you should believe that is not allowed it's clearly not allowed and but that's not what happened because this is not a criminal trial although as much as a make it a criminal trial they did not it was not it was in one thousand nine hundred and three action for failing to disclose a gunshot residue test an alleged bad faith from the on the path part of the tru with regard to kevin's owner using the word murder point said they they asked for and do not receive a cautionary instruction in fact they objected asked for a cautionary instruction and judge epps gave that one  telling the jury that the plaintiffs for the appellant in this case is presumed innocent as previously mentioned there was no further objection to that cautionary instruction so that of course makes everything plainer at that point they did segments the st one was the initial report of the interview with with bridget mannix i trip or national trooper crane which was disclosed to the prosecuted to the defense prior to trial so therefore judge lowry's farney was that was not and her testimony was challenged on those issues again another issue trying to deal with with the dispute with the materiality of the gunshot residue test on the conspiracy charge judge la properly found that even though the personnel file which included a memo from the trooper nash was not disclosed that that issue was too gentle to peach bit about this if the court would allowed additional evidence outside of the criminal case to prove that and if the jury base a decision based on it to me if the judge larry said is  enough to warrant a case for conspiracy as well as to be used as impeachment evidence or making a brady violation those are the issues your honor that we think are the very important we believe that this case claim of the gunshot residue that would far afield but on blood spatter evidence experts to put on computer experts things of that nature showing the defendant had a wonderful relationship with his wife which at the time that the photograph that was shown to them the evidence showed that she was having an affair with another man and the fact that the plaintiff testified in this case got up and said he didn't do it and pre treat himsel having a wonderful marriage but he admitted subject to cross examination impeachment from prior statements based upon this your honour's we believe the district court made extensive efforts to follow the law in this bad thing that is clear from white versus mckinley where he allowed evidence of innocence in ok they admitted here two different ways that they could not prove a homicide it including at the the cases that cite the prosecutor's opinion has an implicit stamp of believability are criminal cases but that is still a jury and he still has the power of the state and he still has that implicit stamp of believability his opinion testimony regardless of whether it was proper rebuttal which i did not agree it was was not admissible and it was not just he was not disclosed as an expert the evidence that jennings presented went to materiality and bad faith and materiality has to be proven through the totality of the circumstances and how it affected the trial underlying trial how it would have affected the trial you can't talk about an isolated you have to talk about it within the totality of the circumstances as far as dr weaver the court she clarified when she was asked about wrongful arrest and by the way the  said that she thought wrongful arrest meant he did something he didn't do that was a listed by mr james counsel for net that was not listed on direct examination and he cleared that up when she said several points that she was not using the term wrongful arrest or wrongful conviction in a legal sense and that it did not play into her analysis what played into her analysis was the effect of his of course incarceration not how he got there and that was clarified several times before the overwhelming guilt questions began and mr jennings was asked did you kill your wife after the weaver testimony after that had been allowed so under valid as that would have been proper for a bottle and instruction given it was not a present instruction if you look at the exchange in the transcript what was said was when a counsel for jennings specifically requested that they be instructed to disregard the response was the jury has been previously instructed that mr jennings is presumed innocent that cause that instruction that was requested by a therefore that was not reviewed under clean air and it is a mischaracterization to say that the district court reviewed it under plain air it is not clear from the order denying the motion for new trial on that specific issue whether it was being reviewed under plainer and actually he says  other places specifically that he is reviewing things for clean air and does not say that about that request for a cautionary instruction as far as the summary judgment issues we believe that those issues have been properly and thoroughly briefed the one thing i would like to clarify is that mr james said that bridget maddox had not testified to anything until this trial that is inaccurate she testified at mr jennings corpus proceedings after