when it counts till morning i'm alan pearce represent plaintiff appellant jose ortiz the judgment here granting summary judgment to the defendant district attorneys and assistant district attorneys should be vacated and the case remanded to the western district for to do reasons the st one is we got no discovery i noticed six depositions of the defendants and nonparty a d a s you got to see that some discovery didn't get depositions i got a little bit of documents from the district attorney's office before i was in the case  then there was some hearings and we're talking minuscule documents deserted have been going on for a long time right it had you know my co counsel amount of discovery that was actually acquired is not necessarily  anybody's fault i mean i guess but the depositions were not noticed until basically the very end of discovery right yeah last day in fact one of the one of the positions was eventually scheduled to take place after the end of the discovery cut off right there may have been correspondence to that effect but i knows the depositions to be held within the timeframe allowed without changing the scheduling order which the magistrate had changed in december so a spontaneous there were no document requests outstanding where there's a motion to compel in the appendix your are lays out what documents that they had provided virtually anything virtually anything in response what i asked for documents to build and that was made when the motion to compel i mean just relative to the depositions being noticed every ninety two thousand and eight dollars and the depositions were noticed when in february to be held in march  fifty six point one statement is that correct as to the documents or on whatever information you wanted there was some yeah some dispute as to whether we had laid out exactly what we wanted they were they were they're pretty broad demands i mean i can pull them up and to get zero verts there was no response to that notice of demand there was prior hearing with the  issues on the criminal files and we got a tiny amount from the district attorney's office and we got most of our documents in the companion case against the police officers but let's talk about the five hundred pound gorilla in the defendant's argument the proper absolute immunity starts at some point even before indictment and arrest apparently some cases it could i guess this court cases say and never ends never ends that's their argument it never ends doesn't matter what's going on if an appeal if if this took place and all this activity took place on appeal is pending clearly absolute immunity applies right most likely but since i haven't deposed any of the defendants i don't know what attorney and there people were there defending a conviction right that's one of the people it is they've got a conviction there now is an appeal and they're defending a conviction that's what it is quintessentially lawyers work right yes and you're right it's subject to absolute immunity is it and you think not i think there's case law that say they could be doing certain things but that's kind of not the not the issue and the time frame here the critical time frame here is from when we leave to appeal was denied after the direct appeal in february of two thousand and eight until the four hundred and forty motion is filed in april of two thousand and thirteen that's the critical time period there's absolutely no prosecutorial there's no prosecution there's no criminal case for that assistant district attorneys to be involved in in that entire more than five year period we're supposed to look at the context in the context is that the feds are now looking at the same  and coming and investigating whether or not there's a different culprit yes and so aren't the steep prosecutors focused on defending their conviction and just as they would be in an appeal for forty motion i don't know what they did because we haven't been able to depose them your honor i don't know if they did nothing what's significant is that the district attorney mr city that puts in his affirmation affirmation on the motion for summary judgment and tells you all the stuff that happened up the appeal was denied and then he says oh and then the federal prosecution got going in two thousand and eleven and then there was a four hundred and forty motion in april he never he deliberately hides what if anything his office did when in november of two thousand and twelve the u s attorney for the western district indict the real murderers we can all stand here today and know he got the real murderers right he indicted them and he started providing seven times from and twelve before the four hundred and forty eight motion is filed he's providing information to mr city that and his office you got the wrong guy in jail we have no idea what they did with that information because he deliberately office was being used to make a decision are we going to defend or are we going to acknowledge that these convictions the conviction should be set aside that would be subject to prosecutorial immunity correct potentially i believe complacency let's assume you got you wanted more discovery what is the basis for asserting that i have a claim the claim that they did something that is not subject to immunity well this court in your role though i believe it's laid out things even during a prosecution there can be activities that are not subject to absolute immunity i believe  a question in your complaint what is alleged that would suggest that they were engaged in activities not subject to prosecutorial if they're going back and interviewing witnesses i don't know i don't know i don't know how this court can actually say they're entitled absolutely any i've never seen a case from this court where you didn't know what they did or didn't do nobody's ever been silent from india as office always we as to what they did or didn't do during the period when there is no criminal prosecution or for forty motion pending warney doesn't control this case we're lucky you're here judge pooler you were on warning clearly there was a four  that's it that's not this case it's not it now of warning had governed the period like this between the direct appeals being extinguished in state court and hey b s and for forty to just bring a complaint and get some discovery to see what happened i don't think that's my argument my argument is that there's a period of time here where there's no criminal proceeding for the d a s office to be involved in they don't there's no information that they knew before forty motion was coming could they assume that sure they could but did mr citied in his affirmation say oh gee i spoke to the defense counsel always doing it for forty so i i had my office do this and this and this no he deliberately omits what they did or didn't do you know if he had set up your nd i mean it would seem to me that prosecutors assessing the convictions of their offices obtained to make sure that they're good that in light of new facts they're still valid is a good thing and it's what prosecutors do that's right in the wheel house of prosecutorial activity there if they're actually doing something after the u s attorney indicted these real killers and gave me information there should be documentation of that and what they're doing in the complaint that would entitle you to discovery to begin with that they were in gauged in any document discovery relative to these things from the defendants to form anything other than the miking our understanding include conclusion and it's partly based on stuff that we've put in this record that the police were doing the police were doing things we don't know if the police was coordinating with the district attorney's office because they not provided any sworn testimony or documents as was there a motion to dismiss in this case i didn't think there motion for summary judgment made i believe after i noticed all their depositions and made months before the deadline for a motion for summary judgment it was a calculated motion to prohibit any defense counsel who sits here today said no i'm not giving you your depositions i went to judge feldman he said no you're not get no it's incredible what was done here the miscarriage of justice to mr ortiz was he spent ten years in jail i thought that was going to be the end of it here now we can't even have a fair fight about absolute immunity they may very well be entitled to it i might be back here a year or two from now because i have an obligation to fight it or i don't but at least let me in gage in a fair fight have some deposition testimony and have real evidence on a summary judgment motion that they clearly made to cut it off probably because they're afraid what they going to have to give me and now i'm going to have to depose a couple of sitting hypothetical post conviction before the filing of an appeal or your is your view that the government government lawyers may not engage in any investigations at that point that would be covered by immunity because the convictions final but the appeal hasn't yet been filed so they better do nothing during that year of want why wouldn't that be the position that flow from what you just argue well if you're talking about that thirty day period between the conviction and the notice of appeal for two weeks that's not my that's not my argument why wouldn't that apply there's no criminals no action pending during that period because every defense counsel basically has an obligation a case and prosecutorial immunity will not apply not anything here are non advocacy functions are not subject to at absolute immunity so until i know what functions if any they were performing or speculating so i'm going to ask you to speculate even more what's the worst thing that they could have done that were you to find out would give you a gave mr ortiz a basis to pursue it further what's your and thirteen basically disagreed with the u s attorney and my understanding is there was a it's not in the record my understanding is your personal feud going on between the d a s office and the u s attorney at that time and thirteen they hated each other that's my understanding in buffalo whether i'm right or wrong that's speculation but that's secondhand information what's the worst that they ran around conjuring up stuff to hold up disconnection they  indictment is is garbage it's a hoax for all i know that's what they were doing they were team focused on mr ortiz potentially they were right at the time was in jail and you had to spend other two years in jail  but let me ask you i mean post the filing of a forty five a four hundred and forty no same activities that you just described would be covered by immunity right it could be this court injure all said that searching for the clue and corroboration that might lead to a recommendation for an arrest here sustain a conviction is qualified immunity this court said that this and said in warney it's a it's a vexing line here between investigation decision and an advocacy this court also said gathering in piecing together of the evidence for indication of criminal activities and determination of the perpetrators is qualified immunity we need to know what if anything they did the worst you could say about them is that they were protecting this conviction which at some point they knew was of the wrong person i think that's the worst i think i've wouldn't be shocked at all if they were running around talking people to subvert the us western district indictment against the real killers i don't think that's focused on defending restore teases conviction it might indirectly do that but again i don't know why i should be able to depose judge that i should be able to place or not and you would make the same argument even for the period the four hundred and forty mission is pending right i would i know at least like your president about that too right they say i abandon everything you know i focused on the really critical period i focused on  st after the direct appeals are done two thousand and eight i upped until four hundred and forty the really critical period in there to me is what were you doing when the u s attorney indicted the real killers and gave you seven times gave you information and documents about about it now later they finally relented after opposing it four times going through a hearing that that improves witnesses for they finally did after they interviewed one of the real killers and they interviewed mr ortiz did they ever ask to see mr ortiz right after they got the stuff from the u s attorney's office and nothing in the record i'm not aware of anything or they did they keep talking about how many times he said he did it after you know after he'd already confessed and after he was convicted and imprisoned this may hint there's a reason why his confession was no good man had limited english skills at the time of his original confession he was doped out no sleep and what's really important you know it's not relevant to absolute millions none of the facts of this man's confession fit the crime reserve one minute for about at length here from the district attorney and discovery there is a companion case involving the buffalo police it's not a companion case there's a separate case involving the buffalo police and you have to understand when it when you talk about discovery this mr or confessed to the buffalo police he pled guilty there there was not a significant involvement from the you're going to district attorney's office they took the file from the police department they negotiate a plea and he plead guilty to that  in the discovery demands back and forth my response points to the entire buffalo police file which mr t s has the entire county court filing for file which mr ortiz has a present and refused any attempts by his counsel to find out what was going on i don't agree with that characterization tell me where it's wrong there was again you have to understand this this man  confessed pled guilty and then throughout his incarceration continued to reaffirm his guilt he did it twice to medical professionals he did it to a fellow inmate in press most significantly once the federal investigation got rolling he went before the grand jury raised his hand swore and this is after years of mental health counseling and treatment swore this i think in two thousand and eleven how many years after his conviction that yes i'm guilty so when the feds come to the district attorney's office with a new theory in two thousand and twelve it wasn't automatically accepted but that type of prosecutorial discretion isn't told to absolute immunity all day long and yes the federal government pursuant to court order delivered certain information to the district attorney's office and they reviewed that information they after they got that information convincing them i'm assuming that they the feds had the real murderer what did they do then and why won't you allow this to or teach his attorney to depose the people in the office to find out what they were doing well it's  they weren't convinced with what the they got this information but they were not convinced right and again that's all covered by absolute immunity their discretion to defend a conviction eventually they went through this this for forty to talk to mr ortiz about his innocence for the st time they did eventually withdraw their opposition but all of that pristine period are we talking about after they got the st indication that the f there was a lengthy legal proceeding but but warning is directly pleasurable to that time frame there was a disagreement between a district attorney's office and mr ortiz's legal counsel about whether or not he had proved his innocence and there's a letter in the record it's for the letter starts and for fifty one of the record but and for fifty two here a county district attorney's office is said in this letter to the county court handling a four forty motion and they tell them for reasons not made known to the erie county district attorney's office the u s attorney's office has advanced theory a theory that others not including defendant participate in the murders of the camacho brothers skip down a little bit he continues on by saying upon learning about the federal government's new theory the people reviewed the testimony in documents provided to mr neutrino who is the criminal defense attorney by the federal government and determined that while the defendants named in the federal indictment may have participated in the murder there is no credible evidence to support these any theory of culpability which it excludes mr ortiz so they have to they have the real murderer they said we still have this guy and we think he was a part of whatever took place yes they had they had they had concerns in till they finally got an opportunity right before mr ortiz was released to talk to the target of the federal investigation and mr ortiz and self and the record is nearly eight hundred pages so just sit here and say he's got this part of mr ortiz's problem that these two agencies were not communicating well well the federal government started their own investigation on their own without any notice to your kind of history attorney's instead you went to the very end of discovery to make a motion for summary judgment before you had a chance to talk to the witnesses who might have information so why should we even allowed to just finished discovery while the three defend seems to me and you didn't instead you make it at the very end of discovery why well this this is not speculation but it's you know i did not have the file from the beginning the your county attorney's office would have had the file at the beginning and at some point it is turned over to our office where outside counsel where i work for a private firm that represents the district attorney's office and these individuals so i do not have the filed time to make a motion to dismiss out of the box but regarding you know there is a lot of speculation about my motives there was a conversation between mr felly it's not in the record but he characterized my motive motivations and mr pierce that i was preparing to file a motion for summary judgment  there was an ad going to scarborough dispute the motion the st motion to compel had been denied and i they knew that i was i had told them multiple times that i had the motion drafted i was waiting for the judges to sign off on the  declarations their two sitting judges that i'm dealing with so there was some delay in me getting them their attention focused on my declarations that i drafted for the review and signature and during that delay really that was you know between me and the client he  noticed the depositions and i did tell him i'm still filing a motion for summary judgment that you knew was coming down the pike but regardless there are two detailed affidavits in the record they talk about what they did and although it's impossible to say everything they did not do the record is clear they were not involved with the investigation that eventually exonerated mr ortiz that it records crystal clear that that investigation that information was provided to them they review document discovery in this case i think we cut you off when you were about to talk about that subject there was one document set of document demands i responded to it with objections some sort of i forget how they we appeared in erie county court to get that file released to mr ortiz they had so they had the police file they had the court file and in my responses i referred to a lot of those documents because it's eight hundred dollars pages i would say to you i said a couple of times you are already have the police file you are asking for these documents related the murders of camacho brothers you have the police file it would be duplicative they made a motion compel i opposed that motion as there's all sorts of procedural defects with that motion to compel and it was denied almost entirely with a few exceptions that the court told me to provide specific documents and i provided those documents and then without any good faith communication required by the local rules in the federal rules they made the nd motion which is in the appendix and that motion suffers from the same defect as as the original motion but there's an eight hundred dollars page record including all the investigations the court file they have everything the chose exactly what happened here there was never any investigation conducted conducted by that you're going to district attorney's office that would come outside of absolute immunity the only investigative actions if that's what ortiz wants to label them were done reviewing the information provided by the feds and that review and  and things from the u s attorney's office i don't have any of that i don't have anything it's hard for me to imagine that the district attorney's office got all this information about real killers and didn't create a single piece of paper about the book buffalo police did not give me any documents about november of two thousand and twelve to april of two thousand and thirteen not a single document and the fact the interesting thing is the d a keeps saying in their papers well we didn't work with the police we weren't involved in the arrest of mr ortiz but now we're supposed motion the defense could run twelve c motion when they made this motion as your honor just sullivan pointed out they did they did summary judgment it was wrong but you know what goes around comes around you made the wrong motion i should be able to have discovery you know it was a two year period november two thousand and twelve to the summer of forty i realize that him staying an extra two years is really only relevant to damages is not relevant to absolute immunity what's really relevant is haven't had a deposition i haven't been able to find no and we know he mr davis what else did you do give me a fair chance to depose you and find out what did you do who did it and this court can then gauge in the functional approach that is the bedrock law of absolute in this circuit because we don't know what if well now we know there were functions performed i should have been saying before maybe they didn't do anything i am sure they did tell us what you did let me depose that you know it's not to be fun for me to depose a u s state supreme court justice who was the former d a might be a lot of fun it might be if i didn't my office didn't practice in buffalo at all but you know and other sitting judges florida but i mean you're arguing the facts and you're arguing discovery but i mean the reason the magistrate judge and the judge went off conclusion that the prosecutors had an ongoing obligation to provide material whether or not there's a pending for forty or he views and that then makes this advocacy that's a legal conclusion and so it seems to me until we resolve that legal conclusion in this other stuff doesn't matter  i believe it does matter your honor because as i said before and i don't mean to repeat it if i've never seen a case where there was a blank as to what the d a s office was doing during a period when there was no criminal prosecution and no post conviction attack i've never seen a case i haven't found a case in that country where that was the case and the d a s office basically is what we're deliberately not going to tell you what if anything we did other than a and so i'm not arguing i'm not trying to have you set aside warney because this isn't warning at all this is pretty warning i mean let's assume that twenty years after somebody is convicted something comes up d something real killer confesses something i'm not saying that they probably didn't do anything for twenty years but if something comes up somebody should somebody who's been wrongfully convicted should get a fair chance to find out what if anything the d a s office did or the u s attorney's office for that matter did relatives in new information that came into light and is it all is it all getting a fair chance to learn information you know and all these hoes summary judge this is a complaint that's filed alleging misconduct and so i mean maybe you do a four year request and you get the information but this is a case in which you bring you brought it you brought claims you're alleging that they're liable and you have to allege facts that the engaged in conduct and if it's conduct that is advocacy then it's absolutely i mean i agree if it but warning takes the position that withholding exculpatory information in the context of a t v news is advocacy and it doesn't seem like a huge leap to say withholding exculpatory information  during a period when there is no can no prosecutorial activity and no pending post conviction they engaged in administrative and investigative acts that are not subject to absolute immunity it's a their it's up it's no proof that they did that's what was i haven't been given a chance to get what they did either in document or deposition and it's their burden to prove absolute immunity conviction you know all the time i'll leave i heard there was a federal thing and then there's a four hundred and forty motion he deliberately doesn't talk about we know they did something and it's four hundred and fifty two in the record his letter to the court we know they did something i just want to fair chance to find out what they did and find out if they're really entitle to absolutely or if it's only qualified that's all it thank you well i'd like my complaint amended as