while you're approaching the podium i heard clicking judge took your seat you're still able to hear him oh good i'm sorry we heard clicking that almost sounded like you had been cut off thank you no thanks just my name is gordon  appearing on behalf of the appellant cross the probably james ferguson he is the only remaining defendant in this case it started out with two counties in one city and two police officers and a coroner and many other defendants being sued for constitutional deprivation claims and it's one of those cases where a person the plaintiff spent twenty two years in prison there's no doubt about how we get here but that makes the case somewhat difficult because we have to look back at the issues left before the court one is on our appeal and that is that summary judgment was granted to all of the other defendants with regard to mr ferguson who was the chief toxicologist for franklin county  even though these events occurred in looking county they didn't have a toxicologist so he did the work he his claim of qualified immunity on his motion for summary judgment relative to a claim of fabrication of evidence was denied one of the structural problems i think that we have had to a certain extent with these claims is that and this is no criticism of my we're the counsel here i have more than one case with these gentlem and they do a great job they make life difficult for me when i'm on the other side but in their arguments in the complaint and in the motions for summary judgment they tended to make arguments related to a brady claim for failure evidence with a fabrication of evidence claim which are two separate concepts and my appeal mr ferguson's appeal relates to fabrication of evidence their appeal relates to a brady failure to disclose exculpatory evidence and this sort of get mixed in these briefs that sometimes are the following exactly which one we're dealing with but the claim against mr ferguson has to do with an assertion now that he fabricated evidence with respect to the method of administration of arsenic into the deceivers body his reports indicate that he believes that it was administered rectally he testified to that at trial and during his deposition it is the position of the apollyon that issue that he the claim here i'm sorry did i interrupt i don't think ok the claim here is and we know there's a difference between pretrial conduct on the part of a police officer or in this case a forensic analysis as opposed to testimony at trial but claim is that he fabricated something in advance of prialt and yet his testimony in trial is perfectly consistent with all of his reports in terms of the scientific work that he did of cancer one of his eyes has been removed we have trouble getting through a lot of hours of deposition and so what we're dealing with here is what the point of claims is a discrepancy between his testimony at trial and his testimony in a deposition twenty two years later we believe and we have presented to the court to the discussion that at trial and in his reports he testified that  fever suffered from both chronic and acute arsenic poisoning and that the acute arsenic poisoning was administered rectally the prosecutor never asked him how the chronic arsenic poisoning was administered because he didn't know  and that's similar to the testimony you gave in this deposition and yeah and then the trial court and struggle and i think that everyone agrees that trial testimony his absolute immunity i'm struggling with understanding it can't be evidence of fabrication pretrial and i think that's their theory and i grant i think that that will explain to us why bit doesn't because this judge felt there was a sufficient dispute of fact yes as to whether he manufactured evidence without regard to and not a based upon his twenty two year later testimony in the trial and all the evidence in the criminal trial twenty two years ago he submitted written reports that the defense said everything was provided to the defendant and what he said in his report was that the acute arsenic poisoning may have been administered rectally actually his words may have been he never said how the chronic arsenic poisoning was accomplished because he didn't know they actually found in this gentleman's lower colon arsenic he found levels of arsenic in the liver heart and kidneys that he believed came from the rectally administered poisoning but then he also found arsenic poisoning their fingernails and hair which would indicate that there was arsenic poisoning at least four days preceding is that that would be the chronic arsenic poisoning so when he was then asked in deposition isn't it true that you don't know  holly arsenic poisoning was administered said i don't know he was a mask is it true that you don't know how the acute arsenic poisoning was administered or the chronic arsenic poisoning the question was just  in the trial even the defense lawyer said to him now your theory is so ever but chronic administration of our snake is this also inserted in the record i'm answer i have no idea he didn't have any idea about that back then or now and there's no there's really no explanation other than confusion relative to the questions the other part this confusing about these questions if  struggling with when confusion rises to the level of what might be a disputed fact that's exactly that i know there's argument in your briefing that it's really not because this is not covered by the complying but  look at the complaint and it gives examples as opposed to it as opposed to limiting well it only gives one example but it calls it an example and and in  two right is other supposedly scientific testing theories and conclusions that he and defendant procured or devised so i think that's a pretty clear allegation you might something up yes but all of the factual allegations anywhere in this complaint relate to the emma tryptamine poisoning but but but they are premised by the statement one example of this i understand  but if you read how does pleading i understand that part but if you read the complaint there is nothing in the complaint about anything but amitriptyline boy's name and emma tripling poisoning is the cause of death so that these other they found strychnine they found sulphate or sulfide poisoning they found arsenic poisoning none of those three were the cause of death am a tripling was and that was the real subject of the complaint i would know that we don't have much time and there's a lot of facts in this case but i would call the court's attention to a decision from this court that was just decided march twenty seventh of this year d m rosie o versus marino thirteen dash three issues the fabrication that's exactly right but in the ambrosio where it has application is they say he is claiming that information was not disclosed but he never told us what that is how how do we know what happened we test whether it's a constitutional deprivation if we don't even know what was supposedly not disclosed the same thing is true here in the complaint there's no indication trial with regard to arsenic was fabricated they have no other inconsistency in the deposition emma crippling poisoning was the cause of death that's the thing they were really complaining about i mean we did what they had an expert witness we deposed  went all through the amateur plea poisoning and what mr perkins opinions were that's what this case was really about when we bought about motions for summary judgment and i filed on behalf of mr ferguson i hadn't seen theirs i didn't even know i had no way of knowing that arsenic was even an issue the questions at the deposition where well then you must have lied you must have fabricated that nothing was ever asked but that these these very basic questions were you didn't know there's another minor point about these questions that the question has to do with how did the arsenic get into mr libby was body it would not kill him if it were inserted into his rectum and never went any place else so when the question is asked how did the arsenic get into his body i believe that the question had to do with how did it get into his bloodstream into his heart and do his liver into his kidneys or into his hair or his fingernails but those questions were not asked and so was mr ferguson being asked in his deposition was there where did the arsenic poisoning come from that would be in his body i don't  know i don't have an opinion on that because there is own testimony was that it had to have been at minister in a way in addition to the regularly administered poisoning there are many other issues in this case i can't possibly get it's across  appeal in fifteen minutes but there are jurisdictional issues with regard to the cross appeal i would invite the court's attention to the end of this brief i think that they were co counsel representing the coroner in this case and they a corner looking county and i think they've done an excellent job of explaining to the court why there's no jurisdiction over the cross appeal at all it shouldn't even really be here we know how these interlocutory appeals are made on behalf of public officials who claim qualified immunity and that's my appeal this cross appeal was just made no just reason for delay we think this issue should go up there are many other parties many other issues left in the case and the cross appeal should not have been permitted i don't want to thank you fever and then spent twenty two years in prison i'd like to start by distinguishing between the two categories of evidence issue on this appeal there is the fabrication of evidence issue judge branch that you mention and then there's the brady material and let me first address the fabrication evidence fabrication evidence in this case is that mr ferguson fabricated in a toxicology report prepared prior to trial that and what it says is that he had reached the conclusion that arsenic had been administered rectally to mr le fever now that is critically important because he did say may have he said that he had reached the conclusion that it may have been administered and then a trial he made it clear what he meant in that report and that is that he had a scientific expert opinion to a reasonable degree of scientific probability that arsenic was administered rectally to mr lafave and absolutely anything on the on the testimony because you can't get him for that yes one hundred percent right and we are not arguing that we're arguing that the pretrial toxicology report that indicated that there was a that he had reached a conclusion that arsenic could been administer conflicts diametrically with his deposition testimony in the case where i asked him point blank did you have any scientific basis for your conclusion that arsenic was administered rectally and he said no i said did you have any scientific basis back in one thousand nine hundred ninety he said no i said did you disclose that information to the prosecutor he said no there was absolutely no manner in which to misunderstand the questions that i asked him i yes thank you i'm back now we can hear you judge could did you hear your question i heard i'm able to hear i was unable to question and i tried it several times so thank you for the accommodation if you will answer and then we will give judge cook an opportunity to ask and and go back if we need to turn off your honor let me address judge merits a question then on the issue of really what is absolutely absolutely unity the issue is this court and other courts have said many many times is that certainly the trial testimony in the criminal case is absolutely knew no question about that but you can't reach back to pretrial acts and immunize those as well that well your honor i would certainly suggest that here what we have is an official toxicology report that was passed around everybody that indicated that he had reached this conclusion i would say that if you are talking about notes that are going over with the prosecutor in preparation for patrol testimony and things of that nature that that might come within those cases the talk about the conspiracy to commit perjury which could be absolutely immune but that's a very narrow set of cases so i would say that anything that is pretrial outside of that narrow area certainly is not absolutely in munich in here we have an official toxicology report you have been an expert information in the record that would indicate that that toxicology report w falsified in terms of its conclusion we did have an expert testimony that arsenic that our experts did not believe it or snake was administered rectally and that this is a critical item of evidence in this case because prior to trial the overwhelming evidence indicated that build the fever was suicidal so the state had to find a way to get these substances into his body the arsenic testimony that it was administered quit in fact this court in the two thousand decision denying habe use corpus looked at the arsenic testimony and indicated that it's just it's impossible to believe that there was a suicide here because arsenic was administered rectally we now find out f ferguson by the way we've heard about the allegations in the complaint the the testimony of mr ferguson happened after the complaint was filed now i don't think we have a duty every time we learn something in discovery to go back in and then the complaint but mr ferguson disclosed for the first time in this case that he had never had any scientific basis for this conclusion that he wrote in his toxicology report i'd also indicate to the court that i do think that this i would submit that this is exactly the type of issue of fact that we should not be addressing here on in a locker tourny appealing for qualified immunity it's not a question of law even though i would submit that the district court was correct there was a clear question of fact i'd pause for a moment to think judge at trial which judgment stretch i think you're right i think we can look at that trial testimony even though we're not suing him on that devil better understanding of what he meant now toxicology report that he had a scientific opinion to a reasonable degree of probability that arsenic was deal with the liability issues first and then we would get to expert discovery because there were so many parties in the case and and we were all cost conscious about how much that that it cost but we certainly have that expert opinion that that was not a minister distinction between the brady material that we have referred to which included information that mr ferguson had lied in hundreds of criminal cases before genuine fevers trial about his qualifications to testify as an expert  witness i would submit to your honor that it was clearly established in one nine hundred ninety that a forensic examiner who's an expert in the case would understand that if he had lied about his qualifications in hundreds of previous cases  that would be material that he needed to disclose to the prosecutor to give to the defendant in words you have a constitutional right to a fair trial additionally because it's impeachment asked but it's let me step back  why would we take that part of the case and i know in light of dr riker's position and the fact that even your brief concedes that it's likely to come up a second time i'm not sure it is going to come up a second time your honor but  why should we take it because the trial in this case ought to and fall of all the issues all the claims against mr ferguson as opposed to the possibility that there might be a trial down the road earth an appeal down the road in the second trial that we there's a little bit of a problem with that though because that's true in any case but we only have interlocutory jurisdiction for specific things i think that's right your honor and that's why  we certainly argued at the time that the most efficient way to go about this was to consolidate all the issues as a relates to mr ferguson try to those issues and there may not be a second appeal or a second trial at all i think we all concede in this case that is truly mr ferguson's conduct that's at issue here he fabricated the evidence he was the state's key witness in the case that the trial judge the convicted geneva fever and then released during two thousand and ten made it crystal clear he said that ferguson was the linchpin of the state's case and he was because he's the only one that could establish that these substances came in some other way other than by mouth when he was proven to be a view i think we should try all the all the issues against mr ferguson as a whole and if i could briefly your honor the reverse i would absolutely not yes try everything together yes and it's not just your on march twenty seventh the d'ambrosio case is markedly different than this case and i actually think is consistent with allen gregory in d'ambrosio what we had is the coroner who at the time of the autopsy wrote notes about  the body not have not come into the corner with shoes that those notes were not turned over to the to the prosecutor additionally and the allegations were that the coroner had a duty to disclose that directly to the defense and i think we can all agree that's not forensic investigators duty but it in d'ambrosio when the coroner made those notes in the autopsy coroner had no way of knowing that that was brady material because it was later that the key witness in this indicated that they had seen the the victim at around the time of the murder walking down the road those notes would have been used to impeach that witness because the body wasn't wearing shoes in our case the material  brady material is crystal clear it is lying in hundreds of prior criminal cases as an expert witness and also before trial drafting a novel with sensational claims about the murder  questions that we did not get to bill thank you yes we can hear you thank you