don't cut you off for five minutes with you i really are going to say whatever you wish and you're welcome to ask me as many questions as you'd like obviously as the district court itself acknowledged this trial which lasted less than a day turned entirely on the credibility of three key party witnesses if the jury believed mr walker's version of events that he alerted prison officials to his fears for his safety then they were liable under ninety three for failing to protect him if on the other hand the jury believes the two prison officials who testified inconsistently that the conversation either didn't happen or didn't happen in the way that mr walker testified it did then they might not be liable under nine hundred three and that's why this case this case turned entirely on credibility and why the district court to evidentiary errors which go to the heart of credibility were so outcome determinative here the first error that the district court made was its decision to preclude mr walker from cross examining a key government witness about that witness's propensity for untruthfulness in light of his decision to lie to prison official inmate and the subsequent lying to prison officials about that investigation in order to avoid personal liability and additionally underlying conduct violations for failure to report use of force all of which was included in the reprimands letter encompassed in that in that very recent at the time violation of a prisoner's rights does a district court really for the district court record here really tell us what those are i had trouble for you not exactly especially on the ball this is your the reprimand letter itself that included the fact of the reprimand the fact that the officer had lied in the course of the investigation and catalogued as i mentioned his prior history of failing to report report use of force which he is required to report and obviously the failure to honor and frankly i think your question is a good one and goes to why this evidence was so important because i think when you get into the facts of it and you're able to cross examine the officer on the prior untruthfulness his lack of credibility really is impending and really does a fact th to allow the government to introduce evidence of mr walker's past sexual history rule for twelve plainly disallows this type of what you say plainly rule for twelve applies to a proceeding that evolved it says at the top of the between mr walker and the prison officials occurred and if in the course of that conversation mr walker expressed fears for his safety about potential sexual misconduct and if he did that then that prison officials are liable under nine hundred eighty three but whether or not  whether or not mr walker himself previously engaged in sexual misconduct is totally irrelevant to that credibility determination you didn't raise it an issue about the applicability of for twelve itself did you in your brief yes i did some probity values just outweighed by the prejudicial effect i'm happy to have a court evaluated under the easier standard of for a one but we would argue even under the balancing standard of four of three it shouldn't have been admitted there's absolutely no probative value in admitting mr walker's past history of sexual misconduct because it's totally irrelevant again to the question whether the conversation at issue occurred whether he alerted prison officials to his fears for safety and if so whether they're liable under one thousand eight hundred three and in fact you know four for twelve includes a presumption that this type of evidence will be excluded precisely so that sexual innuendo is this court has described it doesn't enter into the fact finding process that's wardlow and allowing this testimony to come in allowing a suggestion to come in mr walker himself engaged in sexual misconduct does in fact infuse that sexual innuendo into the fact finding process so that's why we would submit it it was reversible error that testimony shouldn't have been allowed and by allowing it to the the court enabled the jury to infer something about the credibility of mr walker that affected the outcome of the trial is it significant the peers of the court would have allowed a more broad statement than the statement that was actually given eventually the statement that's given is merely a statement of him intimidating coercing them and pressuring them and there is in fact no reference to any sort of sexual contact at all so  sixty two includes is the sight to that that you referenced the testimony that was given a trial and if the court looks at me or five pages earlier i can understand exactly what that testimony means because the witness himself explains to the judge and the parties outside the hearing of the jury exactly what he meant when he talked about sexual intimidation and coercion we would sit at the jury hear that the jury did not hear that the jury should not have heard that it was intended to be outside the hearing of the jury but frankly your honor in the context of this case i think the meaning there was obvious and about sex but in prison it's all about intimidation or coercion as well so even the district court acknowledges that references to intimidation and coercion in this context are in fact references to past sexual conduct and those are  usually draw absolutely on if the district court judge threw them there absolutely inferences the jury would have drawn and what if therefore affected the jury's view of the credibility of mr walker and therefore affected the outcome of the trial why would it i suppose the state will argue harmless error on this point why do you think it was so important his credibility this reference to him having previously intimidated or coerced other cellmates well i think that in the decision  to to have something like the rule for twelve we've made the decision that this kind of evidence shouldn't come in because of the risk that it will influence the jury so the admission of this evidence i think it is such a plain and clear abuse of discretion that it's impossible to know where the only thing the jury is deciding is the credibility of the witnesses it is harmful error to allow evidence or preclude evidence that affects the jury's view of the credibility of those witnesses there's no in other words unlike other cases that evaluate for twelve and evaluate b where there are other types of corroborating evidence that supports or refute the testimony that is given here the only thing the jury is hearing is the testimony of the parties to the k and so any decision by the court that affects the credibility of those witnesses necessarily impact the outcome of the case with the court's permission i'll reserve the remainder of my time ok you may very well thank for your argument so he talked about what he would ask and so he described both the incident itself as well as the follow up investigation and he began with the incident itself and i think when you start describing the incident you start to see why the judge said ok this could be prejudicial it's a bit far afield and i don't think we want to go there the quote the incident itself involved printing a photograph of an offender and writing derogatory comments on it and then the filing of the report investigation that followed jumping down it concluded he wasn't truthful in reports interviews during investigations and fully cooperating and relating knowledge but that's all we have about the nature of what they would have asked and cost examination well you might have targeted it better but what about the fact that the witness was untruthful  investigations i mean suppose i know you tried to bring in all of the six policies were violated or if you just said we want to ask him isn't it true that he lied to the d o c people when they investigated these matters i think that would have cut out a number of the more clearly prejudicial things would have gone to the point where there was the core of the probative value of this evidence but couldn't the judge ruled in that way and said i'm not going to let you bring in all six of these policies doesn't really say very much about the balancing that what she did and under rules for all three she actually simply states the conclusion which sort of leaves and she made reference to the government's argument since we don't want to ignore that she did that a sort of for the reasons the government said blah blah right all but it's really not much of an analysis and i'm a little concerned about that whole question about a prior incident where untruthfulness has been  reprimand and it's not allowed to be presented and it could have been easily severed from the rest of the sort of more harmful information or potentially prejudicial i should say information and there doesn't seem to be an reasons offered on each of these points as well and it was right before trial the day of trial so they probably were going boom boom boom you got the ok we need a quick decision on that that partially explains that you know this court also said you're not required to make detailed britain or oral findings on each of these points and you know in trial that's often the nature of judges to make a snap decision but more broadly i think your question is getting at the standard of review review for abuse of discretion on appeal and you know frankly if the judge said is coming in you know that that that might not have been an abuse of discretion either it was properly severed from the more prejudicial aspects we were just talking about at least under the standard of review and obviously the state objected to it but looking at i  i understand that but the question here is why wasn't the use of discretion not to let it in that narrow way when credibility was an important issue in the case  i think that the judge thought that it wasn't closely connected to the nature of it and to understand that i think you need to look at in the in the trial itself of the testimony turned out to be what officer white said he said i have no memory whatsoever he didn't say it didn't happen he didn't they did happen he said look i was there when officer was around a million times a day i just don't remember this guy i don't remember this conversation it could have happened the way he said but do subtract foolish just an essential part of the cross examination of every single witness so you know if you flip this around is there ever a world in which we would all look at the claimant in this case who had been previously adjudicated as being a dishonest person that once he takes the stand we'd keep that out i mean does that really ever happen you know it's hard to say because a lot of times of potential release aren't given written opinions and decisions is difficult to to stickley to know but how often we have people that are actually adjudicated as having made that truthful statement and it doesn't come in i would presume it would be rare i think in this case the judge is looking at the fact that they wanted that they probably might not be able to separate the information and then because  the one who said what in her view really happened right that's the only evidence from the officers as to what happened right correct whiteside even remember cracked i mean are you really impeaching a guy who says he doesn't remember is the implication maybe well he's lying he must really remember and that's why they argue that closing but where does it get you i suppose is the question if he's lying you say he doesn't remember you still have to deal with the other witness this is a case where there was alleged sexual misconduct and whether for one twelve or five for when to actually apply it anybody brief that issue you know i do brief it at all i don't think it was really tacked on  to this cell so i don't know can you explain why you thought the reason for the assignment was relevant yes and i think that we have to step back a little and realize there were two potential theories that might have been argued to the jury based on the evidence to minute in the plaintiff's case in chief first was i told him this guy was a bad you and i felt threatened and you did nothing that was to claim one but there was also evidence that had been elicited especially from officer amundsen and that she knew that nash was an aggressive person a bully stealing food pushing other inmates around and it was possible that mr walker would argue to the jury that while they knew there was a risk from this other fact from the very near placement of this guy in the cell wholly apart from any personal threats there was on that second theory that this was more relevant and to show that that theory was not viable evidence was brought in to talk about matching why he was placed there to show that it wasn't just the very fact of putting in the cell that we knew this was going to be a juror situation we knew he was going to rape we knew something bad was going to happen and what this evidence showed was that there was an internal classification system with which people would be familiar where alphas were put with alpha's as opposed to deliberately putting a vulnerable person and with an aggressive person they put gnashing there because they thought you know personality wise to be able to stand up to each other and not necessarily just result in a victim situation but the defendants had nothing to do with the place with insiders to which is why you would you are you had baker who did the assignment of the placement but given that the officers birthed a situation where everyone in prison was assigned under this adult internal classification system they would just on the broader reasons it was why this particular prayer was put together right just different than if you put the witness on the stand and say here is how we classify people and this is the general rubric that we follow and we put  all this particular witness has a history of these particular activities from which other inferences might be drawn obviously in this case both the general system is described as well as the specific and it is  and i think it's also important to realize that there was no actual evidence of connecting the two sexual conduct for a further reason that was not described below but which would have been evident to the jury a trial so mr na it in any event we do think that this would not have been an abuse of discretion of the judge given that it did go to an important offense one of the main theories this evidence was a fact affected in the sense that side agreed that it was that the government chose to stipulate to that in order to try and avoid the really difficult facts of the rape itself from coming into the case in greater detail but in any event it is unquestionable in my mind that this case involves sexual misconduct as would any civil suit arising from a rape and it would be improper to allow a jury to hear evidence of a victim of sexual assault prior sexual history in that context as well so by why mr walker and mr nash were assigned to the same cell is not at all relevant to the question whether after that assignment occurred mr walker raises fears for his safety to the present they could have been cellmates for six years or they could have been cellmates for six minutes but the point is mr walker testified that he had a conversation with prison guards in which he alleged his safety was threatened and the failure to protect him as a result of that was a violation of his constitutional rights which she said there was a second theory that didn't depend on the trans l of information to the to the correctional officers it was a true there was a second theory just that they knew generally about and that is character and should have known based on that to remove  walker absolutely or in the failure to do so when mr walker testified to his safety concerns whether those were fears of being assaulted or fears of being sexually assaulted is irrelevant a sexual assault occurred and he expressed safety concerns before that assault and therefore a nine hundred three violation occurred for which there may be zero my question a clear i thought she said the plaintiff had a second theory that was independent of whether he made any complaints to the officer in other words ok so she says that's why this evidence was relevant to the denial of qualified immunity no i think she say i thought she said is the evidence so why national walke whose same cell was relevant in light of this theory that that they had a duty arising from the ashes reputation for aggressiveness i i believe that's correct your honor i think everyone at the trial court understood that the reason for putting mr baker on the stand was to explain why walker and nash were in fact put in the same cell and i don't think again that that is relevant to the central question of the case which is just another reason th why is that not relevant to the second theory which is the theory that we know bad nash is a bad guy who does bad things and you should never put mr walker with nash and the answer would be we put bad guys who do bad things with bad guys who do bad things yes your honor and again if it were the case that that's what the prison had done and mr walker hadn't raised his concerns to prison officials they might not be liable under one hundred eighty three but because he did so and in light of their knowledge they were required when they learned that when they learned of his fear to move into a different house so you're sentient denying that there was actually a second theory of the case that there was only one theory and that the theory involved the dissemination of relevant information risk and  fear harm by walker to the authorities and that's the entire case and then the rest of it is a red herring that goes to the subjective standard under nine hundred eighty three yes your honor thank you all right