when you're honest my name is brian michael and it is a little i'm not looking up when i speak with you in the here we are i've come over the years to conclude that it's best to just come out and say that i'm blind in my left eye so when i move my head to speak that's the only reason why i'm very well i would like to begin by asking the court to imagine if you will a law enforcement officer has borne out and have an affidavit for an arrest warrant alleging that i was driving down several counts of reckless endangerment he decides not to tell the judge that in fact i am an ambulance driver and i had my lights and sirens on and i was taking a patient to the hospital certainly that officer would be liable for false arrest that is very much the case you have before you in addition to those facts the obtuse were out to warrant as i said that he is the most biased against me than any law enforcement officer he has said that it would be a christmas gift for him to have me arrested and take away my license a driver him billions with those facts certainly the ad officer would be liable for false arrest and those facts are very very similar not exactly the same as the facts in this case will counsel we have the problem of the grand jury in essence finding that there the officers testified in the deposition that take their testimony with the grand jury was consistent with their reports which is your sixty eight for defendant kelly's deposition and in your forty eight for defendant welch's deposition incriminating statements indeed one officer can be said to ask a trial or fact to who you're going to believe me or your lying ears because his testimony about what happened in the trial court was materially and significantly evidence which would undermine any probable cause but there's also the inclusion of false information and if that's what happened with the jury the case was fairly consistent that that indictment could be collaterally attack erm now  another huge difference between the ambulance driver and my client mr willis is that my client mr willis is a criminal defense attorney and he's a law enforcement officers who are more biased against him than anyone and would see it as a christmas gift to have his license to practice law taken away more than half a century ago the us supreme court if you did really in getting recognizing undefended is right through competent and effective assistance of counsel these acts by these law enforcement officers have a profound effect on that constitutional right by killing an attorney's ability to do his or her job for fear of false accusations of arrest for fear of having to offend oneself as a defense attorney would if continue and then allowed to go on a baited kill the effective assistance of counsel because counsel will now be inserting his or her interest in not being falsely accused of a crime into his or her defense of his or her client the implications of this i say i believe a very profound for that reason it kind of undermines the whole criminal justice system if allowed to go on a bait let me interrupt you here how do you deal with steve's fact that the mother of the youngster accused of  alcohol violation appeared before the grand jury and as far as this record is concerned she testified consistent throughout all of this and her testimony alone is the most phenomenon that this witness testified that your client told her to go out and tell the witness to certain things and they did it how do you deal with that well this is a probable cause analysis and in a civil matter s miscommunication at best if viewed in a light most favorable to my client because they are in direct conflict with every action my client has taken throughout these proceedings he immediately told the judge where the where he went where the witnesses would be found he left the witness on the bench to tell the officer in case he came to the bench where the witnesses would be found and the witnesses in fact were found exactly where the gloves are would have looked for them in any event so  by the actions of this plaintiff's to determine whether he committed a crime nothing he did committed a crime now at worst for my client if you use those statements those statements in a summary judgment motion are just a contest of facts which do not prevent this case from going to the jury when going to the jury to determine probable cause it's just facts that they have to analyze in conflict with other facts now what i want you to do is focus on the testimony of the witnesses to leave the building now how do you deal with that and again the witnesses were found where everybody including the trial judge and a former district attorney said they would found but the other point is again it's a summary judgment motion so it can't are there facts efficient to have a jury find that there was not probable cause  facts would be the very actions of the my client mr willis to determine whether he did anything and focusing on that telling them to go stand outside the courthouse is analogous to focusing too on my metaphor that i did drive sixty miles an hour down city streets and i did run red lights and i did jump stop signs but that's really neat evidence in the light most favorable to the non choose a moving party which i think the defense tried to do and of course the trial judge seemed to do and pursuing the same wind reasoning and that well if you take away all the stopper tory evidence and all the lies that the defendants told then yes he did tell these standard you're supposed to apply they knew that he did nothing he meaning mr willis did nothing to execute this criminal act or indicate in any way that he had any intention to tell us what what do we do with and that's just on hearsay and maybe misunderstanding or miscommunication it doesn't really survive when you look at the actions of mr willis his actions as we know them to be  that the mother of this youngster who is instructed by your client to go outside the room the courtroom and tell these witnesses to leave the building that some other something foul about what she evidence from the two officers who testified i mean he the one officer told them what happened in the trial consistent with his report inconsistent with his interrupted jury which was included in the briefs which is no reconciled with what the trial record show that's a good reason for him to be found not guilty where we're we're concerned about the validity of this it doesn't lead to more that was a person correct and so you have this new mother of the of my client's client saying i have these five minutes left and again it's a summary judgment motion and a reunion a light most favorable to the plant for the nonmoving carding the case gets to go to the jury and that at worst for my client it's a contest of facts and that's a fact that the jury has to consider against the fact that they were only told to go where everybody who's ever worked in a courthouse knew to find witnesses when they couldn't find them and i am my time is up i'm powerless of the defendants i have with tenet james welch and also sergeant brad kelly who have great interest in the outcome of this case because they tried to do what was the right thing there are few explanations for why a criminal defense attorney with twenty five years experience would tell to state's witnesses the only two who are there on subpoena the go through an intermediary through the minors mother go have the girl stand out in front of the courthouse i don't want them to be able to find him and that's where mr michael scenario breaks down the evidence ambulance driver had a valid legal reason for doing what he's doing and this case a criminal defense lawyer has no business telling two of the state's witnesses the very two witnesses who were convicted his client in the justice court that this was an appeal to the circuit court the very two witnesses who convicted his client or told to go out in front i don't want them to be able to find him and what mr willis strikes me about that episode is the thought that he could asked not to use witnesses but witnesses for the state to do that is a possible he was confused well i think that was a post incident explanation your honor i doubt at the time since the judge's letter that came out of justice court said i find mister the point of mister carson kelly i find him guilty because of the testimony of these two witnesses so an attorney with twenty five years experience who shows up to court and says i don't know who the witnesses are i just told my clients mother to go out tell them to go outside doesn't really pass the blush test or of a does it's a great statement about the abilities of that attorney but this is textbook police work what these officers did that's what we want them to do they saw a crime a class c felony tampering with a witness the person knowingly induces or attempts to induce a witness to be absent from an official proceeding to which the person has been legally summoned they witness a classy felony based upon the statement of the girls as they were coming back in they went out sergeant kelly went out found the two girls as they're coming back in you know why are you out here we were told to make ourselves scarce i think was the initial statement and then they go back in the two witnesses do testify the client is convicted and then they say you know they compare notes and say what happened here and they go down and talk to deputy district attorney mr eater so they go down they pursue that step they don't just immediately arrest the criminal defense attorney they consult with the dip the district attorney and he says go do an investigation this may be a bar matter maybe it's a criminal matter do the investigation so they conduct the investigation and  the outside district attorney takes it to a grand jury listens to the whole court proceeding decides there sufficient probable cause grand jury then decides there's probable cause this is textbook police work is better than what the law or choirs and they did everything that's required of and it's also textbook work as to what not to do is a criminal defense attorney you have no business talking to any witnesses to go anywhere and particularly ones that are on  they argue primarily as you noted judge levy they argue reasonable doubt not really probable cause the crime was complete at the time that they tell the witnesses to leave the area i don't want to be found so all this later information about most bias and christmas gifts that's after the crime has been committed probably because as an objective determination they had objective evidence to believe that that crime is been committed and there just no valid reason for a defense attorney with this experience even the courtroom when when sergeant kelly who had just testified he just left those witnesses outside the courtroom he comes in and testifies that ted wells then calls the next witness sergeant kelly says you go get the girls they're waiting for about two and a half three minutes and they're inside the courtroom and then mr willis is there because he got cold feet or whatever he says who are you trying to get which witness what witness are we waiting for and a lieutenant well said harley holley parmenter the judge said mattie phillips is i think you're waiting for then willis and this is just an admission your honour's not exculpatory evidence mr willis says we had her go and stand out in front of the courthouse so you may want to go there to get her that's not exculpatory evidence that's an admission of his plan i told those two witnesses who are under subpoena to you officer to go stand out in front you know he admits it but that doesn't mean the crime was committed some get well your honor there's a there's another for stating that they were talking the judge was talking to the others who are getting ready to go forward this is an m i p trial and so the judge is talking to somebody else mr willett says he needs to be somewhere by four o'clock and so that the suit but the gaffe that is referred to is not a gap that affects what what what was the judge about the location of the witness that's correct ron it's not a gap in that in that sense it's only a sense of normally have your next witness ready and then that that delay that we all available to the grand jury one  reserve time first to begin at the end of mr warren remarks and deputy district attorney silverman kept trying to get position that she did not listen to the recording prior to grand jury that the recording was not played in front of the grand jury and the only evidence about what happened in the trial court was by deputy welsh who's essentially saying who you're going to believe me or your lying ears because when the record is transcribed in the complaint  one seventeen deputy kelly's version of how he found the witness he will tell you that he came out of the courtroom he saw mr so vent to get on the bench and miss levinsky told him that the witnesses were outside which is what he was left there to do if you're going to secret somebody away from appearing he did everything he could to not secret these people away from appearing and deputy kelly even testified that he went to where everybody goes when they are not when they're on the bench waiting to smoke a cigarette or just said anything to these witnesses and they went out to smoke a cigarette the version of eventually be absolutely the same there is no evidence that he secret these witnesses away from anyone or in any way influenced them to not appear no evidence whatsoever other than the we're going to believe me or your lying ears the idea that they were told to be scarce which was ultimately found to be not true the idea that they and that the witnesses disappear is just an exaggeration that began from the very instant that this trial record occurred  cause the deceptions from the very beginning the embellishments exaggerations and any contest of facts before of prior fact the three most important elements are credibility credibility and credibility and when you start lying and you start getting caught lying and you everything you say now becomes unreliable to the trier of fact then we certainly have at least the ability to go to the jury and to a jury to say there was no probable cause here everything he did was to not secret witnesses away but to ensure that the go offices would immediately know where to find these witnesses other than the embellishments distractions