t be granted in this case an important thing happened after that report recommendation and that is this court issued its opinion and gilliam versus sheely and we supplied the already well considered order that issued the st time let me ask you something fifty nine applies to judgments doesn't yes yes or are there was no judgment was there of law and the court changed its mind now is there any problem with the court realizing it didn't do what it wanted to do or it made an error of law that it can't correct itself before judgment i think as it is croydon ery proposition me you just concede it doesn't apply we're talking about an order and into law kotori order entering entering in a case saying we're going to proceed to trial and then the judge later saying we don't need to proceed to trial mean it is just because you look green with everything that you just i just know of course not i think we do much better to keep to the merits of this thing but i'll leave the argument up to you well i authorized say why wasn't she authorized to change her mind what principle of law says a judge who makes a ruling an interlocutory ruling during the course of a trial or the proceedings leading to a trial can't change its mind the court can say i'm going to exclude these witnesses and the lawyer comes back and says hold it i really need these other witnesses i want to lay on some more evidence to the jury in the judge says well i'm going to let you do one more witness she will wear your eye this happens day i was the district judge and i can't tell you how many times i changed my mind on things during the course of proceedings you see things from different vantage point you see a lawyer didn't have as fulsome an argument you say well maybe you have a point a good judge has to react to try to get to the right result and produce a fair trial and during the course of that if he makes an interlock atory temporary ruling prejudgment during the course of the trial he's got to be able to reverse himself or she's got to be able to reverse herself if she thought it was wrong you're out i certainly respect the court point of view on that i don't believe  law that says they can't do that i cannot i cannot i believe the authorities under but ninety of the case both clear on what it or so you are not new but i'm also equally convinced that i'm not going to change your mind about that i'm not trying to pigeonhole judges oh yes you would change my mind if you had some law or some persuasive argument but you have conceded that fifty nine he doesn't apply and so i'm asking you what rule or what principle applies that a judge can't r it actually provokes you know it's a strong reaction when you see a sheriff continue to question after somebody has asked for counsel and then tries to manipulate around it and doesn't give the miranda rights and all those things but  we have a probable cause hearing before a magistrate of some kind and he testifies before that person under oath and says basically the same things he said to the sheriff now why isn't that part a legitimate part of the record you know that is a part of the record of that hearing was in the family courts family court family to court judge but why why why not me come to the hospital with a baby who has broken ribs old healing of broken ribs current broken ribs broken skull and up there and and both parents say there's been nobody else in the as you know he's trying to provide an explanation of how that occurred he's not saying i did it is saying basically well there was the baby was colic to you and i held the baby maybe i held him too tight or maybe the head hit the side here something he is trying to be helpful but all of that basically is trying to take the blame so that his wife doesn't get blamed but the only two people that are  i'm sorry how would it take all the other evidence the husband presents a baby into the hospital with a broken skull and then they find multiple injuries that occurred over differing times around the ribs you summary judgment standard is not evidence of guilt it's evidence of innocence they're looking and we're looking at probable cause for the arrest because the charges were fine filed following probable cause created by a court so the let me just ask you one question before because i'm going to raise the other side the district court didn't rely on any immunity did a qualified or absolutely unities notice or go where they raised by discussed enough but just to make a couple of points number one on the issue that's on appeal in this case is in a locker to a order that's without question are intimately aware of the the initial ruling excuse me was the order where she changed her mind that's correct on all right now the question is is she allowed to change her mind with respect to that or whether that's not a certified a what are i'm writing to you get into a lot of complexities when you start talking about rule pando judgment and ultimately that's what occurred in this particular case i would appreciate if sometime in your argument you can get to the arguments which colleague on the other side ended up with which is need to reach that is fear because all intimately as the district court ruled even absent the confession it self there was sufficient evidence that was developed at the hospital before mr wedding center even transferred into the sheriff's department for interrogation there was sufficient evidence that was developed at the hospital that would provide probable cause for the arrest of the child abuse statutes and in a nutshell those are  some different points number one the actual child that was brought in for medical treatment was diagnosed with a skull fracture ultimately it was determined that the child also had a number of broken ribs  knew there was a request that his twin brother be brought in the twin brother was brought into the hospital and was examined and ultimately it was determined that the twin brother also had fractured says the child's injuries are not explained and are are most consistent with non accidental trauma that report was available and provided to the law enforcement officers as well as d to the interrogation of mr and mrs livingston neither parent is undisputed neither package offer any explanation for the injuries to either medical personnel or to law enforcement authorities they cannot provide any type of explanation and lastly they were the only conceivable caregivers by their own admission in fact both arms and nearly testified that the nine year old daughter hannah that the child's two of michael livingston under the south carolina child abuse statute without even any consideration of the confession itself and quite frankly that's as far as i would submit that this court needs to go with that issue cause because they proceeded to interrogate the two parents and obtain a confession from mr livingston of course as well sell them to just record mentions as well that's a subjective beliefs of the officers are totally immaterial it is purely an which judges asked that but rather not qualified immunity was raised qualified immunity rez raised by all of the individual defendants including my three sheriff's deputies that why why couldn't why would anybody have to get into that in this case where he made the same statement before the in court on the probable cause he i i agree with you on a thought that if all the state was almost identical and it was made under oath before a court that's correct and it was actually more than a year later was in family court and he did make the exact same statement that constitutes the you you have a two prong response you're saying the evidence was sufficient number one and number two the officer had qualified immunity and a bench in those circumstances that that's correct and that and then the rd argument that you don't necessarily have thousand and five which does not expressly decide the question of whether the exclusionary rule applies or not but it does implicitly just says that because in that particular case there was the argument that the motorists back this didn't want to turn over his insurance car when he was on for entering a traffic stop and failed to provide proof of insurance he claimed that he had a th amendment right against when there's an attempt to use coerced or involuntary testimony if it is a criminal trial itself the trial itself and ultimately well to take that principle on a little bit it would be sort of strange in a civil case i do need three days to allow evidence to come in where the evidence was obtained by shotgun held to a man's distinctions laws and i understand the one billion case involves both fabricated and coerced confession and this particular case of course there's no allegation of anything paints advocate i think the and the suppression hearing to the state judge was critical of is that they didn't give him his miranda rights again after he couldn't reach as an attorney and then decided to start confessing or providing an explanation that he should have  again at that point and then there's also the question this case as to whether or not the interrogation technique of talking about whether further product procedures they would follow such as interviewing the rodef and potentially interviewing the key piece of the d d gilliam case was the fact that the officers knew the confession had been coerced and fabricated and therefore they can't rely on a knowing all confession to establish written confession comes in with respect to d s s cleanest a pill claims against them are a little bit different because they do raise a claim for heather livingston with respect to the child protective services investigation and a family court action against her i would point out that michael livingston in his written confession stated that heather had witnessed him abusing the children and didn't do anything to stop him or were heather michael were the only individual that had access to the children and the lack of any explanation by them as to how these injuries  it in their arguments simply point to the pieces of evidence they believe shows their clients are innocent while ignoring all the evidence that implicates their guilt now a probable cause analysis requires a totality of the circumstances at does not require that every piece of evidence be fully run down and that there be a credibility determination it's simply an analysis as to whether or not the prosecuting entity had reasonable belief that a crime had been committed i think all the evidence that's been presented in this case and it's in our priest in the appendix mr liniment went through it quite thoroughly the only conclusion is that there was probable cause for d tort claims act which covers d s s as a state agency the tort claims act contains an immunity for state agencies for any claim that arises out of the initiation or prosecution of any judicial or administrative proceeding  so i think they granted immunity would apply irrespective of anything else appellant mentioned in their brief two pieces of evidence that i would argue wholly irrelevant they refer to comments made by one d s s attorney and some allegedly racist comments made by a d s s caseworker think those are wholly irrelevant here they have nothing to do with d whether or not probable cause this standard is that the facts and inference is or are interpreted in favor of the nominee the party is in that context that yes we talk about the facts in this especially important because it is a totality of the circumstances is testimony in the record was that when michael living sent by lee decided to fall on the sword for his family to protect his wife in his trial from criminal prosecution or interrogation and when he st explained the injuries in trying to take the blame here's his account of what happened didn't match the injuries and so his story was shaped with these officers to try to match the injuries that the children suffered in his suit this process if they develop this coerced confession that matched his alleged conduct to the injuries that were suffered by the children i think there's some place there were some ones as well that that may be the sense it could have happened that way so tell me another way it's alternately meat and that is if not just a coerced confession but it's fabricated to try to match the evidence as the officers understood it to the injuries that the children appear appear to have suffered from i don't know how  could be more on point then then in this case except in our case is better than killing him in the helium case the opinion hasn't let me ask you this this it's a i don't understand the full significance of this but it keeps bothering me because the statement that michael said to the court he said i am solely responsible for the injuries of these two boys there is no way that heather could have done it etc i would get frustrated because those injuries myself i can guarantee you that during any investigation there will not be any evidence to show that heather would cause it so he's explaining he said it was out of his control of his frustration that because he said the same thing before the officers in a situation where he didn't get his constitutional rights honored is i'm having a hard time coming to grips with how i handle that spirit he's i'm reading right here from the transcript and hears from court and he say and i take responsibility for it i was frustrated at the children and probably caused those injuries when you're out of the dispute the debate that is he is jury someday would have to wrestle with but isn't that something that is not is not linked to the coercive in other words this was not coerced what he said he can recant and that can be measured later by somebody yes it is to say that his statement that he took was fabricated by the sheriff's it's fabricated by him maybe in order to get his wife off but it is real evidence about admission i'm talking about now you are not comprehending my difficulty my devil goatee is you talk about the confession before the sheriff's been fabricated as if they caused that to happen yeah your explanation is he fabricated it not the sheriff's and he fabricated it to exculpate his wife but the question is then that's not linked to the sheriff because later he gives the very same statement in court under oath before a judge and says the same thing now maybe that was fabricated too but it was fabricated by michael not by the sheriff's they didn't testify then yes you are what i'm saying  fact was disputed at the time probable cause was needed in other words we had two doctors giving opinions that suggested that indicated that this was not accidental it was deliberate and that we have two children showing injuries that's all true and we have we have evidence that indicates who the caregivers were that's colleague on the other side talked about evidence not exclusive of the confession or the statements by mr livingston and we're just getting you to say what those are but well if you do you disagree with anything your colleague whole examination actually i thought the only question was was there submission arbonne at that time for the public officials to conclude there was probable cause that there was a the question is and they have evidence that supported that conclusion surely they didn't have all the evidence because you don't ever have all the evidence but they had evidence indicative of what they rationally that doesn't mean that the facts that they had didn't i'm i think your argument has to be those facts didn't amount to probable cause i don't think you're disputing those facts i think you're saying the facts they had before become fashion  better than other alternatives to all right thank you very much what will do i want to say that we would normally come down and shake your hands obviously we can't do that but we do greet you and thank you for your arguments and welcome you back to the court