park of being the woman who got away with murder and chastising her for having the chutzpah to challenge the constitutional violations that effected her and exactly this presumption of guilt and possible inferences must be accepted as well and in this case we have more than plausible inferences more than sufficient facts alleged to show constitutional violations in particular it's  well established that substantial government interference with defense witnesses hampers the defendant's right to present a defense and that's exactly what happened in this case effective thompson took it upon herself to reach out to one of the what could have been a very keyed offense witness here on this i all and make sure that she influenced her to tell her that they knew that the killer was there that they had it they had the killer in fact she used that word miss length without any particular inquiry from from miss iowa to tell her that the defense investigators were liars they shouldn't they couldn't be trusted they were trying to get this woman off and  so through the conversation this poor witness is left with you know it well geez i guess i've been told that i know i shouldn't put mr gilmore to blame and i shouldn't you know believe these defense investigators witnesses ronnie casey was a potential defense alibi witness went out and visited him frightened him with prosecution he refused testify went out and talked to the ochsner police department regarding imus park fiance so over and over again detective thompson made sure that she manipulated the defense witnesses to ensure that she was able to get through in her hopes and her hopes to get a conviction m fortunately was not convicted in this case she was acquitted notwithstanding the fact that her third party cup ability defense was precluded to the conduct of detector thompson and that's just a testament to  other evidence that they have in this case but that does not preclude her fact of her acquittal does not a preclude her civil rights claim here this court have clearly held and help weed killer that i the fact of an the non mirandize statement doesn't meet the fifth amendment standard but that's not what we're dealing with here what we're dealing with here is very similar what happened in how we deliver in that case it was that the judge who was threatened and here we have witnesses who were influenced but the same principles are at stake which is that if that was denied a fair trial and she was denied in this case her opportunity to present a defense and that causing forensic on the for a lack of fairness in the proceeding against her which she had to go through even though she was acquitted she was not able to tell her story as a result the story will always be as a as a prosecution ordered to be and then the story of her eliminate her sex life so counsel that i think you hit on the issue in this case i read the transcript with the detective dead and certainly at this stage of the proceedings i'm not going to quibble with anything that you said but i could not find a case that would permit relief when there is an acquittal i saw a number of cases from other circuits and says there's no political there's no materiality to the missing evidence or the brady evidence and and my law clerk found a case from the eleventh circuit i twelve thirty two and it is a sixth amendment compulsory process like this one and the eleventh circuit in that case said there cannot be an action when there is an acquittal so other than how are there any other cases  point us to on your side of the ledger can i see a lot of cases on the other side of the ledger maybe not in the ninth circuit but elsewhere is there anything any other circuit cases that can help you a little bit here it was well y body of them out there to deal with this brady question and i think the brady question comes back is somewhat similar to the fifth amendment problem in that the brady violations self is defined in terms of materiality in terms of you means it means the ability to have fairness in the process in the trial itself i think if you look at some of the structural error pieces as well when there is just fundamental unfairness in the process it self that is the violation and i think in this case the violation was we have to look at when was when was the violation complete so in the fifth amendment cases in the self incrimination it's not you know it doesn't exist until the information occurs in the brady context doesn't occur until you know the outcome is affected but in the persons or due process of the compulsory process sixth amendment and due process case situation it occurs when the process is that the balance you know is important consideration the balance between the government's interest and necessity and deporting illegal aliens versus their requirement for testimony and i think in that case there was they would find there's no there's a good faith removal doesn't interfere can be viewed as interfering impermissibly with the six men that right to compulsory process and that but i think that's because of the circumstances that you have witnesses who can and should be deported the right i'm sorry process does not outweigh that but here we have no such countervailing consideration we've got  opening brief that the appellant was falsely accused of murder this is not a case where the appellant sued claiming either a false arrest a false imprisonment or a malicious prosecution under nine hundred eighty three the crux of this case really amounts to the february sixth twenty thirteen telephone conversation between  detective thompson and melissa iowa and we set out in our brief the context in which that telephone conversation occurred the boyfriend that he the boyfriend was the real murderer and they tried to get more thought i ought to make certain statements which ultimately the trial judge judge kennedy in the spirit court ruled to be  admissible and i think that your theory this is a motion to dismiss yes it is but but your honor and i understand why the court would ask that question the complaint asks the court to examine whether or not mr park was a fair afforded a fair trial in the superior court how can one determine whether she was afforded a fair trial without examining exactly what happened in the spirit court and that's the reason why we believe that the judicial notice that judge otero took of the proceedings was proper the the  recording which i believe the court has available to it of the telephone conversation is pretty clear we provided a transcript of that as well there is no threats or coercive statements made after hearing that call it doesn't mean you win this case based on how we should read the transcript of the motion to dismiss stage i'm not sure that's where you want to go in this case well that the appellant is asserting that her due process rights were violated by actions that were taken by detective thompson sure and it's our position that she that she park was afforded due process at least two stages one when judge kennedy had three days worth of hearing on the issue and secondly when judge otero reviewed all the evidence and ruled as he did i'd like to if i may very briefly since the court seems to be interested in this question address exactly what happened stick to the legal arguments why even if we accept the allegations in their complaint is true why do you still win well i think that the new you know look at whether or not the judicial notice taken by judge otero was proper reasonably disputed and she hasn't shown a reasonable dispute she just argues that it's reasonably disputed she was given an opportunity when she filed her second minute complaint to make specific allegations which she didn't do that she made allegations on information or belief she alleged that thompson and or other detectives of the santa monica police department did x y and z but this is not a case against other members of the santa monica police department this is not a case against the city of santa monica this is a case against the text of thompson and the fact is that the allegations were not sufficient and i would like to address the materiality standard  and how that plays in with the the fact that this is a twelve b six motion as opposed to a summary judgment motion we have relied on that ball standard of plausibility and i need not remind the court with the plausibility standard is because i'm sure every civil case that is up here on the twelve the six involved the issue however the question here is whether or not but i'm saying what is the law on that point well again i guess in order to decide whether the issue was whether the evidence was material in the first place you have to look at california law  may the fifteenth of twenty thirteen judge kennedy held an additional hearing on the issue if there were cross motions in limine a filed by the parties the the  defendant in that case wanted to admit evidence of other acts allegedly committed by john gilmore melissa alice earlier had been the boyfriend of the deceased party and the prosecution wanted to exclude that evidence as improper character evidence and this improper evidence of third party culpability under the standards yes why she is wrong because well first of all as you pointed out there are there are no cases that would allow a recovery in this circumstance but she is an  essentially to the brady line of cases and i think by implication the warrant cases those cases all involve situations where actions by the police undermine the public's confidence in the verdict and that's really what's critical here how can she say given that she was acquitted that the public's the deception by the officer is what is critical and what allows a due process claim to be made in the brady context and in the search warrant context here i want to remind the court here that thompson did not preclude judge kennedy from introducing the third party culpability evidence it judge kennedy held an extensive hearing over three day period to determine whether or not that evidence was coming in and she were ruled that it wasn't coming in the motion to exclude the third party culpability evidence was made by the independent judgment of the prosecutor who presented the case five days later on may the fifteenth judge kennedy held another hearing and i'd just like to very briefly since i only have two minutes left i'd like to reiterate what judge kennedy said in granting the motion eliminate by the people to exclude the third party culpability evidence and she said and this is on the excerpts of pages three ninety seven three ninety eight and i believe three ninety nine and in my review of the case law the defense has failed to establish the nexus and the nexus being between the commission of the actual offense and the person who supposedly the third party who's culpable for the offense and you have not established speaking to defense counsel pointed me to any evidence that somehow connects mr gilmore with the perpetration of the crime there was no evidence that anybody saw him at the apartment at the time no evidence of any forensic fingerprints fifty two and because it was not reliable and it was improper character evidence under california evidence code eleven i want those three reasons for the exclusion and it was judge kennedy who excluded the evidence anyway this is a lawsuit not against judge kennedy it's not position on it ok thank you very much i think the court is well aware that this is a six motion and the issues that are being discussed regarding the facts of the case are really not what's at issue here that's all those questions are for the jury to decide the legal question that i know the cour materiality is talking about relevancy of the evidence and its ability its capacity to affect the outcome if you look at you know materiality you know in context and certainly that was here true here and why that was the fight about it this was material evidence as this was evidence that would have shown in a given jury reasonable doubt certainly as to ms parks guilt because it pointed the finger at someone else but the harm on the other hand is a different worry that is for the jury to decide so the violation has occurred they violation miss i'll miss parks right to present her defense has occurred with between not only with ms i love it with the other defense witnesses as well who were also dissuaded from testifying so this course of conduct caught cause mr park harm and the question of the extent of it and what that harm is is a question for the jury to decide if it becomes a question of damages how was she harmed what was the extent of the harm given that she wasn't convicted that's not her harm but certainly the fact that her story went to forty eight hours and has been you know there to the world as though she's the woman who got away with murder because this part of the story didn't come out that's a harm that's a real harm and this session i think three does not require proof of damages it may turn out to the jury decides it's only one dollar but that's for the jury it is for the jury to decide i think i am getting back to the court's question about you know there aren't cases permitted this i think maybe the the right question is  i think there is a case clearly that permits it which is help but i perhaps a better question is what cases are out there that preclude it in the circuit and and there are none that i'm aware of certainly not not i in the audience but that that case yes yes i would appreciate that option but but there are no cases in the ninth circuit that we've identified that would say that the acquittal does preclude this this lawsuit and for all the reasons i stated both policy of deterring misconduct which is the policy behind section one thousand nine hundred three and the practical reality that there is a real identifiable harm in being deprived of the right to present a defense that is the constitutional violation itself and that should be actionable regardless of whether the outcome of the trial right to a fair trial it's not the right to win a trial that's at stake