good morning may please the court i'm jesse show walter of robinson curtain on behalf of helen cherry f had a trial was twofold st the maricopa county knew that it's customs and practices for dealing with the mentally ill but mentally ill detainees like at risk and that that risk and those customs and practices are what caused his death but the district court excluded that evidence specifically the great litigation that put maricopa county on notice its customs and practices were deliberately indifferent to the health of millions if you're going to cite the graves litigation are you looking are you looking at judge wake's two thousand and fourteen order is up the principle thing that you would have liked to die i mean i know that i know that you had dr stewart and others that would have testified about the gray's lobby geisha but the principle evidence of the grave litigation would have been judge wake's two thousand and fourteen order correct your honor ok and which which of which of his findings would most impact to this case his specific findings in that order were that mentally ill was st that maricopa county had no policy regarding disciplining those who were mentally ill they were within its care custody and control it had no written policy ok which i have i have the or i have judge wakes order so you can give me an e r cite or you can give me a paragraph number or something or page number i'm not in the  then is do not have a written policy regarding the use of discipline for behavior resulting from serious mental illness i don't have a word in policy regarding use of isolation and they don't require mental health staff be consulted regarding discipline a pretrial identified as having serious mental illness how how do those help you those are very very general the reason they help us is because they establish that was actually happening here wasn't some isolated incident it wasn't what maricopa county argued in closing on forseeable unpredictable they had knowledge that these customs and practices existed in their jail but because this evidence was excluded so i thought i thought going to explain that to me how does how does the finding you say these were problems point to something more specific what is that that should have alerted mentally how many mentally ill detainees were being disciplined for acting out on mental illness and the result let's just take that one that's what you would benefit to us i don't know how that speaks to your case because it was the issue here isn't how either that his statement or the other person in the cell was being disciplined and i don't i a thirty day trespassing charge but as a result of repeated incidents that were clearly related to his mental health he went from being minimum security in which he's with nonviolent offenders st time offenders being a medium security and he keeps acting out on his mental health and so jacking up his security back to his act and he spent two hundred dollars days in disciplinary segregation locked in a room as a result of acting out on that mental health and we weren't allowed to show that maricopa county knew that it had this custom and practice in place if i look and i'm looking at the paragraph you cited to me says they don't have a written policy they don't have a written policy hundred and ninety eight is defense to not require the mental health staff be consulted regarding discipline one hundred and ninety eight it seemed to me was probably the most relevant for what you for what i thought were the were the principal issues in your case that is that there that there was a lack of communication between between those who were classifying and and those who are assigning making that the jail assignments correct the size like this and i want to be very clear that there are two there are two separate approaches that we had because we sued maricopa county and we s director of health services and we also sued the sheriff and as to the mill health services they were in this because of these graves related issues the sheriff was also in this because of the grades related so what did what so what did so what you just feel bored deny you from the grave litigation that you would have liked to have got now that you think would have made a difference or he didn't let us use any of this and if you had if you could have used it you would have done what you would have filed judge wake's order as an exhibit we would have filed just waits orders exhibit ok and then it could you have read to the jury these these provisions is that what you have tried to do and also the remedial provisions in other words the judge wake ordered  actually needed to address these issues so not only would we have done that but we would have been able to question witnesses from america county about the fact they knew that this was a problem because what happened at trial  i don't have a written policy regarding the use of discipline which is when ninety six and one hundred and ninety seven suggest that the problem is you don't have a written policy that doesn't mean that you don't have a policy it just means it's not written correct but call it he didn't even seem to understand that that was a potential basis from the liability and so we have the i'm counsel i'm having a hard time seeing the relevance of it well i think it goes in the absence of a policy is a policy itself policy of an action and there how does that cause injury how does the lack of policy in writing cause injury because the lack of a policy in writing when they know they need to have that policy well because the whole and not sure that the law knowing that they don't have a written policy if they surely know that that's not the same as knowing we need to have a written policy well they don't think they do that's why they don't have one and even more than that knowing what the policy is supposed to say it's not about knowing about the policy it's about knowing that there is a risk a substantial risk of harm to the mentally ill and the policy and the lack of a policy that more evident you are against the very very high level of generality at that's an extremely high level of generality of course i'm not a i'm not a doctor i'm not an expert in mental health but i know that we ought to have you know that we need to have to do something about prisoners who are mentally ill that we might treat them differently from that that's sort of intuitive i think there's some good common sense there the details you know are beyond me at this point as a a layman so you're dealing with such awe at such a high level of generality i'm just not sure that i see the relevance of this and i think the relevance of it comes from dr stewart's testimony because if dr stewart was allowed to testify about his his  engagement in graves his death why didn't he certainly testify about this case i think the complication here is that like judge by b n i read the dialog berg who said exactly the same thing that this proposition is simply too general you can focus on the facts of this case but i don't see this case over here having enough relevance to try to retry all of that here i understand why he says that and nothing that i'm aware of presented dr stewart or any other witness commenting specifically on the facts of this case was there any limitation of some kind yes we were precluded from going into it at all and there was a separate split what to say it going into graves i understand going into the facts of this case he wouldn't let you examine he would not allow allow us to examine dr stuart about specific findings that he had resulted in the graves ruling so yeah i guess my sense of this is of the graves as like an eight hundred pound gorilla and and your presentation kept looking in that direction and the court was asking him to look at the facts of this case and he was an interested in going into graves and i can understand why and i don't agree because i think there's two issues that i have is we told the court outright and this is in the final pretrial order our st two issues are the custom and practice set forth in graves and the custom and practice that we can identify based on these three previous killings one of the arguments that maricopa county makes on appeal is that these custom and practice arguments were an afterthought but they're the st two issues we identified and they're set forth in the joint pretrial order we're here about graves we're here about the fact that the same customs and practices identified in graves lead to this death and that's that's the connection that simply the district court thought was pretty remote and it's a pretty high level of because the issue here as i understood it the principal argument making has to do with the information that that the person responsible for the cell placement did or did not have which isn't really what graves is about directly and that's absolutely correct and and even there i'm not sure what information it was the lack of a written policy or the lack of of a practice of giving that person information but the causal connection here to what happened in this particular incident there are no other incidents that i saw that are of this nature the other i guess three examples all had to do with not  a placement and a half hour later somebody is dead just very different facts so how is the lack information causation follow and how does that connect to this graves litigation respect to graves the issue is this everybody in classification knows exact autry's acting out on mental health issues every recognizes that everybody in detention who encounters him recognizes that he gets repeatedly disciplined most of the discipline that leaves him in segregated housing for two hundred days because he won't leave segregated housing never once during the course of that discipline that somebody call mental health and say zack dockery is sticking around here he's getting ramped up should we be disciplining him should we be putting him in ever more dangerous environments and so that's the graves portion we consider these three pre or prior deaths and the mechanism with which maricopa county communicated information to the officers and i should say the fact that they didn't communicate information to officers doing cell simas that's a whole separate basis for liability we believe we could have brought this case on that alone without the counsel the the level of granularity that you just offered us about this particular case is far more persuasive to me than the very very general statements you tried to draw from graves or from dr stewart's testimony that's far more persuasive but this evidence you were able to put before the jury it was evidence we were able to put for the jury but we weren't able to make it into a woman l claim because we couldn't show the graves context that maricopa county knew this was a problem and that is the key from graves maricopa county new it's in graves and so there was no way we were going to convey well again the graves the problem that i see a council is but the paragraphs you've cited to me from the graves litigation are so general that it's it that yes maricopa county is responsible for understanding it needs to have written policies about these things but it didn't specify what the policies had to contain or how there's no there's no causal connection between that and this is just to highlight a level of generality all we have to show m l claim is notice of the problem and these these requests for granularity from the court with respect to the prior killings that happened there's no mon el case that says that you need to show these killings that are on all fours with a killing that happens later they get you know them or circumstances to you have here they're absolutely similar circumstances they're able in the same salem their segregation cells people locked together in this tiny cells for twenty three hours a day and they know three deaths that's a huge number of deaths each one of those deaths put them on notice on a normal plot a notice that the way they are signing cells is dangerous how many and how many prisoners do they have in these in and in the years at any given time these are all pretrial detainees are all pretty these are mostly pretrial detainees and it is the average daily population maricopa county jails nine thousand but very few of them are in segregation cells and segregation cells are this dangerous environment to begin with you don't you know on the street actuarily are risks we have heart disease whatever but when you lock two people into a twenty three hour lockdown together you're making a decision that the most dangerous the most likely risk to each of those people is the person they're locked up with maricopa county knew it maricopa county knew that there was this history of deaths and it was allowed to feign at trial that it had no knowledge of that that all of this was on forseeable and then in closing they were allowed by the district court to make it out that we had done something wrong in trying to get this evidence in and i think that is inexcusable we tried our best without any order in lemony to get in this evidence we can't get in over their objections then in closing their counsel stands up and says i've never seen anything like this jury that eighty eight percent of his objections had been it's that sustained he made that up what if i had stood up and argued counter to what he said in closing if i had done that and said well actually we had very significant what we consider to be very probative evidence about maricopa county notice in the form of previous deaths i would have probably gotten sanctioned there would have been a mistrial and i'd be paying maricopa county fees he made an improper argument to which we were not permitted by our own ethical standards and by the court's orders to even respond counsel i think we understand the argument you're almost two minutes over your time i will allow you some time we've taken quite a bit of time so i will live some t sado and i'm arguing today on behalf of the apple east i think all judges on the panel it hit the nail on the head here that all of the proffered evidence that we're talking about has to be relevant to their theory of the case and their theory of the case was that maricopa county allegedly had two practices that exposed to a substantial risk of serious harm and we just talked about those one being a policy of allegedly punishing mentally ill inmates for behavior resulting from their mental illness  and to the tower officers and officers responsible for assigning detainees to their cells not reviewing all available information those are the two policies are the two alleged practices and when you look at grays and you look at the stewart graves order the stewart evidence there's absolutely no connection between those proffered pieces of evidence and these theories of the cases they failed to make that connection before judge deal who who be labored this over and over again spent thirty five minutes in an argument spend fifteen minutes over lunch break came back and continue to argue did he look at it he looked at it every which way and gave plaintiff's counsel an opportunity to try to make the connection and they never did they stayed at thirty thousand feet they never made the connection i would like to address a few specific points that i just heard the  st being relating to the greys or you're absolutely right there were no findings of unconstitutionality in that order it was simply pointing out that that county did not have these policies and that was something that was not disputed in fact it was in the pretrial order that it wasn't disputed and we didn't dispute it at trial the fact that there were not these written policies in place that's that could not have put anybody on notice that one maricopa county had these paul that maricopa county policies were unconstitutional the bigger point i think on this issue is that this order was issued in september of two thousand and fourteen months after so how in the world can this judicial fiat alleged judicial finding which it's not that was issued after his death 's simply make statements that it's you should not punish mentally ill and mates without going through mental health st that's all it says that's not something that was disputed at trial in maricopa county doesn't have written policies etc etc we don't dispute that but there's no finding of  segregation he was going back and forth between general population and mental health unit he was there so he was he was seen by mental health so many times that the treating provider testified exhaustively that he believe that he was  he was just strategically thinking of ways to get out of max cut to get out of general population and into the mental health unit and in fact in this incident on july rd the last time he was placed in disciplinary segregation this was just a few days before his death before they put him in sag they ran it through mental health and mental health cleared him on july th or th just a day or two before his death mental health evaluated him again so he was seen over and over and s suffering from symptoms they'll treat him but if they feel that he's not suffering from any symptoms they'll send him back if they thought that tree had issues they could have ordered a house alone so when they sent a back to they could have told the folks on the general assigning folks that he needs to be kept alone in a cell because he's at risk they didn't feel the need to even do that had they seen the  bizarrely they concluded that it wasn't a symptom of a mental illness rather it was as a result of a drug he was coming down from drugs he admitted i believe my recollection is he admitted that he had gotten hold of some drugs when he went out to the court appearance and that's why he was acting bizarre so they had just looked at him before they had put before just hours before this and what had happened was he was walking around and was was talking about you know where's junior officers looked out of the office of the primary officer actually testified that he was calm he was collected he actually thought that he was just trying to get moved that he was faking it saying these things just just to get moved and those were those were officers that that saw him within hours of the murder they had absolutely no reason to know that he was dangerous or that this murder was was foreseeable it was completely unpredictable and frankly we don't know why or what happened in that cell we don't want to touch briefly on counsel's argument regarding the stewart declaration if you look go back and look at judge stillbirths order he did not issue a blanket prohibition on any and all testimony relating to graves actually this is a quote from from the  transcript quote conclusions about certain conditions in america county jail that dr stuart formulated during his working graves are not out of bounds simply because he came upon them in another matter so there wasn't a blanket prohibition on me actually said he would rule on objections on a question by question basis he was very thoughtful about this the problem was plaintiff's counsel could make the connection and show the relevance right then in there when we in the midst of trial and dr stuart actually did testify that he'd worked in america county jails for years that evidence did come in that i believe it was he had worked in the jails for the last ten years and formulated opinions about the health care so the jury did know that he was somehow related he had some experience with maricopa county but ju concerned was tethering this case to graves an ongoing class action litigation regarding mental health care audit on a broad sweeping level and the jury seeing that and thinking well if they did something wrong then they must have done something wrong now and he was he was right for excluding that evidence  finally on the closing argument there was a cheap shot counsel i'm sure it was a cheap shot by whoever whoever or whatever offer a closing argument it was a cheap shot well i think what you have to look at is whether or not the statements were so per pervasive that they have permeated the entire proceeding and whether you're firmly convinced that they have no basis in the record  did those comments which were only in closing argument it wasn't throughout the trial it was there were it was an isolated passage the jury was instructed at the beginning of the case in plaintiff's counsel related reiterated the instruction during their argument defense work and then he represented police officers what was that what was the relevance of of objections of the number of objects the percentage of objection sustained i think the frustration was the number of times that there were questions posed that were clearly objectionable despite the court's orders and they were over and over and over again and this is not just limited to you but the jury the jury saw all that correct matter in the jury solve and they were in stright that's correct i mean i just don't i just don't know what the relevance of the percentage is it just doesn't it just doesn't you know this is going to depend on the percentages might be outweighed by how many times you objected and your objections are i'm sorry the mr show alter of object and how many times you know his objections were so were sustained i just don't see that there's anything in that in that percentage that's helpful to anybody well be that as it may helpful or not i mean if you look at the arguments of both counsel and you look at what opposing counsel said there's a lot of stuff that was outside of the record then in what they had said i mean it's said that defense counsel was moving the goal goalposts that that defense counsel tried to distract us with all this garbage about melinda ring the defense counsel wants to turn citizen on citizen against citizen defense counsel wants to find find you to find them to be less than human detainees i mean there was a lot of stuff that were that was not in the record that were ad hominem attacks and  notably plans canceled in object to the statements by defense counsel at that time they waited until after closing made a motion for mistrial which is reviewed for an abuse of discretion and judge hilberg again he had sat through this eleven day trial he he was aware of the objections and whether the questions  were objectionable and the number of times they were sustained he was keenly aware of how the jury was perceiving everything and he said he said look counsel i think that there was there was some line crossing on both sides so i'm i'm going to just leave it as is and will submit this to the jury so just hilbert clearly didn't think that there was that that it was so prejudicial that a permeated the entire proceeding and would have influenced the jury's verdict and if you look at the way that this trial  proceeded in the evidence that was presented this came down to whether or not the jury believed that he was a victim and mentally ill and whether brian bates was a violent psychopath and they clearly didn't believe that they don't nine where dr jaffe testifies about that so all these arguments about him not being mentally ill him being the lingering it's clear that because of that designation all the customs and practices and policies for mental health people applied to him and dr applied to him with respect to the closing arguments that it went above and beyond in our opinion a cheap shot because it was a shot to which we could not respond without making a mess without forcing a mistrial and potentially be sanctioned and the eighty eight percent number we've never seen any support for that there's no statistics for that it was made up out of whole cloth there is never said oh here's the percentage of what was you know and where they happened they made it up and then just say that our arguments which we bring out in rebuttal to these attacks on us are somehow they had the opportunity to plan for their closing and they planned that in their clo they would make these cheap shots they would make these improper arguments and then in fifteen minutes of a bottle we had to address them without forcing a mistrial and getting sanction ourselves and that combined with the fact that the district court allowed them to capitalise on what were in effect piecemeal rulings on motions and eliminate the does or court denied every single motion and lemony so when we went into that trial counsel at your well over your time again thank you your honor thank you we thank both counsel for the argument for versus pen zone is submitted