pino rape of a twelve year old girl of aggravated sexual assault and casual exchange of marijuana later d n a testing revealed he was excluded as a perpetrator and he was released from custody after eleven years in a maximum security prison the complaint against several defendants involved in this prosecution was dismissed as i said on appeal we have narrowed the case to one defendant that being sharon jenkins the d n a and analyst with the tennessee bureau of investigation where you have an appeal as the dismissal of all the other defendant we have not in fact a notice of appeal specifically said it was just asked in this jenkins and we further narrowed it to three specific legal claims in her individual capacity a fourth amendment claim for what the court calls malicious prosecution  fourteenth amendment claim for fabrication of evidence and a fourteenth amendment claim for withholding the legal viability of these claims really is not in serious dispute this court and gregory vs city of louisville reported decision from two thousand and six address the same three legal claims against her friends can examine her and it held explicitly that these are legally viable claims so i don't think there can be any question that we've pleaded viable claims but there is some dispute about what the facts of the case are and i don't think ms jenkins has really credited the allegations in her complaint so i'd like to touch on some of the most important points the evidence against mr mills was essentially the victim's accusation and then the d n a analysis done by sharon jenkins she prepared a written report for the prosecution and the d n a analysis was really more important because the accusation standing on its own was not particularly trustworthy it was coming from a twelve year old and as this court has held in other cases typically the the uncorroborated allegations of a child are not sufficient to establish yes before the d n a report came in right correct and earlier so in this case there was a finding that the child's testimony alone was sufficient for problems based on whatever was before the grand jury at the time but and but our theory of the case is that yes there was that finding subsequent to that the superseding indictment then we have ms jenkins performing her d n a analysis and we're alleging that her own results from that a analysis excluded mr mills as a perpetrator and therefore dissolved probable cause and that was the same theory of the case in gregory which the court said was sufficient to make out claims but the d n a analysis was extremely important at the trial especially because her story that the victim sort of the alleged victim story would change materially over time for instance she first alleged that he followed her and then when they found see him in her underwear for the first time she alleged that he raped her pretty big omission from from the first accusation against him she alleged that he gave her a vallium and butter toxicology report showed that she didn't have any value in her system so these circumstances and i don't know that all those were before the grand jury  those circumstances we've alleged suggest that even standing on its own probably the victim's accusation wouldn't have probable cause but certainly after that there was a finding already so i don't i don't know why you can argue that there's a finding there was probable cause before the d n a tests so you could say maybe it should be made but it was right that's of those facts i don't mean to say that whatever kind of value that her accusation had in terms of establishing probable cause it was so minimal that by the time the d analysis came out in her results showed that it excluded mr mills there is no possible way probable cause could have existed at that point going forward and therefore probable cause would have dissolved that's our theory of the case but i underwear could have come from any caucasian besides mr mills that that's very definitive that's like saying there's a ninety nine point seven percent is that really the way she stated it because we've had other cases and i've been on them where that that's just not the way you can say it you could say one out of every two hundred ninety people would have this marker well i had it right maybe that bad i bet i didn't focus on it because that's just not the way the law says but what paid would i look at if i wanted that well you know we don't have the report in the record because it's just a motion to dismiss para paragraph forty six of the complaint summarizes the d n a ok and so you said that ari i did see that and in fact kind of vault at it but so that's not in the records that gets us to kind of the the issue here really which is this is twelve b six and so we have to take everything you've said here is as essentially correct and we really have two questions number one did you plead knowingly or unknowingly or recklessly or whatever the standard is with those words and secondly can you meet the balt wobbly that this is more than mere speculation so if i give you the first point for the moment what would you point to in the complaint as your best statement of factual matter that would raise it above the level of speculation because obviously you know we know the d n a evolves and improves and you know she says you know presumably now she's saying that her report was accurate and they just did a better job of testing so so what factual material is there in the complaint that you would point to as your as your best evidence to raise that above the level of speculation well for each of the three claims and probably cite different paragraphs but the most important things overall would be probably the following we've alleged in france since paragraph sixty five eighty and ninety six that the defendants and of course that would include ms jenkins deliberately fabricated evidence and of course the most the complaint is talking about ms jenkins d n a report so that's what it's referring to i would point out though that not all these claims require that kind of state of mind by mischance for instance or brady claimed that could be an inadvertent failure to disclose exculpatory evidence but we have the directly away intentional fabrication of evidence and withholding  basis that's plausible and i can see that you've allege the words that she intentionally withheld this but i don't i don't see any factual basis other than the legal conclusion that is not sufficient under her state of mind is assuming it's even relevant to a particular claim and i don't think it's relevant all of them wrote rule of civil procedure nine b says that when you're planning a state of mind you can do that in general really and the reason is you can't do much more than say defendant x you know did it intentionally or recklessly or whatever it is because you can't really you know you have to prove that was with with other things a trial but weeks we've met our burden always go to trial when when you're alleging a state of mind i don't think every time you allege in permissible intent on the other side you're entitled to a jury trial is that but is that your position i think we're entitled to get past the motion to dismiss because ninety says that that's we are allowed to plead it generally now in summary judgment statement i don't think it really affected that nine b pleading standard which is in terms of someone's state of mind but i will go ahead and say that we deplete more than just she did it intentionally i mean we've alleged in here that and paragraphs forty seven and forty nine if that were true i mean the defense could have hired a d n a expert examined the d n a evidence and challenge to her opinion i mean what i see you're doing is you disagree with her opinion that she bade in one thousand nine nine hundred and they say well it was a wrong opinion so therefore you know she must be liable here but the fact that they erroneous opinion i don't think gives you cause of action that's all you need more than that you need to plead more than that maybe not any mistake would create liability but i think we have played it a lot more than that i mean we know you have a speculation that she she made a mistake in the d n a and she should have known better and and therefore she should be liable and then your results are ten years later after this when you have more scientific bases of a had advanced quite a bit since nine hundred ninety nine and had it not alcohol doesn't paragraph sixty one say they use the same in all analytical techniques it does and that's what i was hoping to get to which is just that you know we've said that  used he being the person of the private laboratory test of the same portions of the same pair of underwear using the same techniques and a different opinion well you can't eat the result well i would say get came up with different results but we've always known her own results or spoke to him up to a different that even at that point he was sort of trying to cover it up right i think that was a fair inference if you've done something as we've always deliberately to convict somebody you know it's not surprising that even at a later time you would say you stick to your guns and say i  way do you have i mean i guess that it's not in the record we can't get in the record what was in the record with your complaint says she said she had never made a mistake but you say that later she denies there was any of that stake but it's not in the record is that the right answer you were alleging i think if i understand the question was she they would never even allow that there was even a mistake i mean one o three she says she not only this wasn't a mistake she never made a mistake in her career though if the facts are different you might think you'd be deliberate but we can look at that some more what it and i know my time is up but i would just if i may just brief way most of my my opponents are brief has to do with what matters outside the record as i think the and a lot of this has to do with the state criminal proceedings on the record there but we would just ask the court to to evaluate our complaint based on the record in this case which is just the complaint resume oblio all of that other stuff could come into the summary judgment mostly concerned with just getting him out of out of prison so so yes you know it could possibly come in but it's not controlling right now well thank you you have your reb answered brady there are no allegations that jayne ken's actually withheld any evidence and plaintive could have requested his own d n a testing at any time there are no allegations that missing concert actually participated in the decision to prosecute as this court recently noted in king vs harwood where there are no allegations that the defendant said the prosecution and motion or participated in the ultimate decision to prosecute there is no malicious prosecution  activities were set in motion is a question about maintaining the prosecution and your adversary cited the gregory case on that on that aspect does that change it at all or do you say that once the once the initial grand jury occurred the nobody no matter how badly they did anything could ever be liable and this is gregory does not help the plaintiff for this for these reasons the court ends and manual  made it clear that the issue is continued detention without proper legal process and gregory this is the timeline there was a preliminary hearing at court that establish probable cause then there was the here analysis and been there was the indictment that superseded the preliminary hearing that is that was probable cause and the probable cause that supposedly dissolved was that that was established at the preliminary hearing the indictment that superseded the preliminary hearing was therefore tainted and was not a proper legal process to continue the detention of the plaintiff that's not the case that is not the case in this particular case here there are no allegations that there were fraudulent not material to the and dikembe it and here it would have been then the plaintiff would not be able to prove probable cause absent the evidence and so here we have two indictments that occurred prior to the d n a test and therefore regardless of the d n a test the indictments themselves were proper the legal process was proper and so there was probable cause and if you're going back to the participation to prosecute that's a separate factor and gregory nowhere addresses that particular factor in its opinion and here there are no allegations that defendant jenkins actually set the prosecution in motion or was involved in the ultimate decision to prosecute of the cases that plaintiff cites to allege lack of probable cause after indictment relate to allegedly fraudulent events that occurred prior to indictment and were part of obtaining the indictment that's not the case here now as to the brady and fabrication of evidence claims there is a requirement that there be notice of those claims but the only claim that was apparent from the complaint was the malicious prosecution there was no notice that pla amendment due process brady or fabrication of evidence claim nowhere does plaintiff mention a fourteenth amendment due process claim the only mention of due process at all isn't paragraph eighty seven and that is in the context of an alleged improper seizure and violation of the fourth and fourteenth amendments there's no other mention of due process there's no mention of brady at all the only mention of withholding evidence relating to the d n a is and is in the context of the aber nard withholding evidence there's nothing to indicate that defendant jenkins actually withheld any evidence and there are two paragraphs paragraphs forty nine where plaintiff alleges that not connect the does not connect jenkins to that suppression the only connection is to be able nor withholding evidence plaintiff never mentioned a brady claim in his response to the motion to dismiss other than claiming and it terms of an injunction there is no mention of a monetary damages claim for brady or fabrication of evidence in this case this differs from snow versus nelson and snow this court noted that plaintiff did not but it's no the the clip the brady claim was specifically mentioned in the motion to dismiss and both parties breached the claim that's not the case here there is no mention of fabrication of evidence in relation to miss  no where in the complaint does plaintiff ever use or say the words fabricate manufacture knowingly intentionally in connection with the d n a evidence and in connection with mr jenkins a quick rundown of the allegations with respect to that paragraphs forty six and forty seven merely state that later expert analysis revealed that the d n a was actually scope atory paragraph forty nine accuses d and d a barnard withholding the inconclusive test results paragraph fifty four is it just involves missing can step to moni there is no mention of fabrication does not mentioned does not mention disprove the testimony was known to the defendants plural granted but that this refers to the sent to all the defendants and it specifically sixty two talks about jenkins mislabeling  respect to sixty five that is a very unclear paragraph in particular that involves events that occurred after siri became involved and therefore after the guilty verdict the d n a test occurred of course prior to the trial and prior to the guilty verdict there would not have been a mislabeling or misidentification after the guilty verdict but that particular paragraph accuses de aber north of hypothesizing that man had masturbated and handle the underwear prior to sending it to see right although it says even though evidence had already been presented the jenkins had missed misidentified segments in order to support and maintain the guilty verdict which i mean she only identified whatever she did she did it before right i mean before a if she may have testified in later state proceedings but the question of whether when she looked at the at the d n a yes and she said incomplete because she wanted him to be convicted rather than telling the truth in their in their view that it said at that time something different that would have ok and i think that the only way that this particular paragraph makes any sense i think is that since it in but it discusses events involving siri that the what they're referring to is that the evidence that didn't hear to start yet i'm not speaking into the microphone i apologize the only way that this this paragraph makes any sense it involves and it involves events that occurred after the d n a evidence and after the guilty verdict and the siri results according to plaintiff showed that definit jenkins had mis identified or misinterpreted the d n a evidence and that that was the evidence that was presented to her of the sciri results this particular paragraph of course the reverse of events that occurred after the guilty verdict there was no guilty verdict to support and maintain at the time that defendant think instead her results and then  minute you're generically we were at the twelve b six stage so there's a question of interpretation and granting all the things in favor and so forth in a in a a tack on forensic errors or evil as we know there have been cases of technicians just making stuff up what should a person the ledge at a stage when they don't have any more than the later results in order to to proceed against the lying technician is that that they just didn't do it quite well enough here or is that  until you couldn't get you have to get the discovery first in order to have enough facts to put in your complaint that's what he thinks the state of the law the as as judge griffin indicated earlier there has to be something more than m speculation and here they're suspect elation to going further than well but i'm going to ask you that in general in general if you really have a case where the technician made stuff up and later you discover it that's that's a fairly common not common but it happens and then you come in what do you put in a complaint that says that would get you above the level of speculation because until you get the discovery in these kinds of cases until you can make them produce you know the documents or try to get it or depose them what can you do or do you say or the other side of is to say well if you say that we used the same techniques because at least for me on the factual basis that's fairly important that frankly i went into this case thinking some of the same things judge griffin just said but at least that allegation and which we don't know until we get more  that raise it above the level of just mere speculation i wouldn't necessarily prove that but i would go further and say that there has to be notice that there's a fourteenth amendment claim and nowhere in the complaint is there an alleged may fourteenth amendment due process claim the oh there's only one mention of due process and again it's in paragraph eighty seven and that is in connection with a fourth and fourteenth amendment claim which is clear what plaintiff meant by that particularly if you refer back to paragraph forty nine which accuses the aber nort of withholding the inconclusive test results never is there any mention or ever never did they ever say that defendant jenkins with hilt anything and it's important to know the one locus where chink it's found a match plaintiff's expert agree that it could have been the right answer there was no fabrication your summary judgement stuff record to the extent that they allege that rather than saying that one person out of two ninety in the whole population have this eliel she said there's only one thank you to pick up where judge baugh has left off i'm looking at the report it's outside the record but i can represent to the court that our complaint i really don't want to go outside the record i do i have your complaint in front of me and mr jordan says you have not alleged the brady complaint or brady claim against jenkins you have headings here you have fifth claim fourth claim third claim i don't i don't see a brady claim either and you've got them all i think out of her eyes and stuff tell me but we're which which under which heading is the brady clean what one through five well into the second claimed that alleges a fourth violation of the fourteenth amendment which is where the brady claims located did a reference you when one paragraph ninety five of the third claim says a violation of fourteenth amendment lets the second claim where you said brady is under the second claim where is it i mean you only have one paragraph so where is it in paragraph ninety three but we didn't we didn't plead case law i recognize that but as paragraph ninety three say that jenkins withheld evidence i'm not sure that paragraph three says it in those terms but it does say so it's not it's not included in the second claim so that's out i would reserve another claim that brad included in against jenkins and tell me where if i could refer the court to paragraph ninety two which is the second claim of corporates by reference all the preceding allegations we've always numerous times in the complaint for example in paragraph eighty seven that there was the intentional i'm quoting the intentional misrepresentation of known we false and call it evidence as as well you think that puts them on notice that you file the brady claim against jenkins and you have to give  reasonable notice to a defendant that she is defending a claim and you think that's reasonable doubt i do for two reasons first of all the district court knew it was there because the district court sue a spontaneous they didn't move to dismiss it but the district court says i recognize this complaint contains claim and then it went ahead and dismissed against jenkins yes and you argued in response to the motion to dismiss that you had a brady claim against jenkins because she said you did not i mean i'll check the record but we have a citation to this in one of our briefs i think it's probably in that says of course we didn't elaborate because they never moved to dismiss the brady claim but we didn't mention that there was a uniter did not mention in response that you had a brady claim against in the response to the motion to dismiss and we have a citation to this i believe in  was a it was mentioned it was not analyzing great detail because they never moved to dismiss it but the district court did pick up on it and did analyze it and dismissed it i think if there's a procedural issue here if anything it should be all saying they didn't move to dismiss this claim and the district court did it sue a spontaneous we haven't made that objection but i don't understand how ms jenkins can object when it was apparent to the district court we had this claim that we didn't properly when you say they didn't move to dismiss this claim how did they distinguish that is i thought they moved to dismiss all claims well they did but then they said here are the claims and here are arguments as to each particular claim in the brady claim was not alluded to well because they didn't know you had a raiders game because you didn't specify i mean the courts than the court said i think there's a brady claim it didn't yes i did there is a brady claim and this is why it's dismissed and so of course we have to appeal that because now it's dismissed but we think they had fair notice  if the district court had fair notice than this jenkins we think had fair notice but there's no relation to say something about the third claim when when when you started when judge griffin asked you where your claims we got into the second but i thought you were about t about the third but i could be wrong sure what well the third claim also refers to a violation of the fourteenth amendment in the heading in as well as in paragraph ninety five paragraph ninety six says the defendants named above and the preceding paragraph specifically names jenkins in the first sentence the defense named above engaged in the manufacture by the methods articulated above of knowingly false and called the tory evidence against mr mills and the suppression of exonerating exculpatory evidence including but not limited to the d evidence that clearly excluded mr mills that's it that's in ninety six you're reading from right that's correct ok so i'm out of time but if i could just say one thing to wrap up as far as far as the legal viability goes this case is on all four with gregory every issue that's been discussed today about whether this is a viable claim was addressed in gregory and we believe that is controlling law as to the plausibility of our allegations it's all in here we you know it to the extent that you know the court would require us to plead more i'm not sure what more we can do besides saying we have our own expert he said that clearly excluded mr mills if we have to attach an expert report to the complaint i think i would be tantamount to requiring us to plead evidence which clearly says it is still not