present summary judgment evidence that williamson county violated choice mansfield's right to due process into specific ways essentially we're here be because magistrate judge in the case of mansfield versus williamson county decided that no due process violation occurred under the fact pattern presented at summary judgment that was in error for two specific reasons st the evidence showed that williamson county prosecutors knowingly and repeatedly threatened to convict mr mansfield with fictional evidence for the purpose of coercing mr mann steel to plead guilty in voluntarily that is a violation of due process that has been well settled under supreme court precedent since the early one thousand nine hundred and forty s in addition these same prosecutors also flagrantly violated a court order to disclose violated texas law d requiring the disclosure of exculpatory evidence and violated the construct of brady versus maryland and the rationale behind brady versus maryland by intentionally withholding evidence of factual innocence from mr mansfield for the very same purpose if the court sustains error on either of these issues the magistrate judge's ruling granting summary judgment sit williamson county should be reversed i want to take a step back and talk about what really happened here mr mansfield was arrested for the crime of sexual  indecency of a child based on based on a forty year old victim's statement alleged statement over the course of the prosecution it came to light that this did not happen or that there was evidence that it did not happen in particular the little girl told prosecutors on a number of occasions this did not happen parent watching his kids there was a neighbor over and there is an allegation of abuse that's the situation the sole witness to this or the sole complaining witness was a little  girl who was barely competent to testify in an ever self ok why ok in addition to that knowing that this was the case knowing that this little girl had r canted her allegations knowing that she had supplied evidence of factual innocence did the prosecutors dismissed the case as they were ethically bound to do no now it's just not our opinion that they were ethically bound to dismiss the case williamson county has conceded that any ethical prosecutor would have in fact dismissed the case upon learning the allegations that were argument on the pure failure to disclose itself the tory evidence based on brady versus maryland and try to distinguish the alvarez case and its progeny i'm on the basis that one of the one of the one of the several cases upon which brady was was found it was the wild opinion in the wild opinion actually you know had to do with the suppression of evidence at the police to age and and z and not directly violate any prior panel decisions but i completely agree that the violation of a state order which vests a liberty interest does does does support an independent grounds for due process and you as it as a practical matter there was no surprise to the defendant that we were traveling down both paths as as a as an actual matter the court asked us doesn't alvarez control and know we said this is the product of lying and fraud and deception as well separate and apart from that but even if we were limited to our actual complaints paragraph seven of the complaint states as a consequence of the closed file policy which is the policy issue in the middle of monella case or one of them prosecutors were able to lie about evidence that did not exist and prevent mansfield from discovering the evidence the district attorney had exonerating him of the crime for which he was accused now lies about evidence that do not exists are not brady versus maryland violations they are separate due process violations which throws them me ask you about that i know this case about prosecutors but if the police have a murder suspect and they look there at the end of the interview room and they say oh we found your prints on the gun and there's an eyewitness out there who says you're the shooter both of those are laws is that a constitutional and then and the person the suspect confesses in light of those laws which leads to a guilty or does that unconstitutional those laws about the evidence d well i would submit that under under whaley it would be the qualifier is it depends whether or not those lies are disclosed to the prosecution and then the prosecution discloses them to the to the defense i think that the law well i don't agree with it allows police officers to lie but you cannot hide that hide those lies later on from the from the well you know i think i think the way we case actually does hold that the f b i in that case they they lied they they threaten they threaten to publish false statements if the if the lies are to cause to cause the plea to be involuntary in a court finds that then i think it i think i guess it depends on the nature of the lies prosecutors they have a clear duty not to lie and again if the with the wally case which is the supreme court what happened in the wally case was that f b i agents threatened to publish false statements and manufacture evidence which is what happened in rick in actuality here although judge lane tried to distinguish it really it's directly on point with what happened here here so a number of the prosecutors told the defense attorney that this little girl who they knew had recanted her confession and said that mr mansfield had not done it again sexual assault of a child through the anus had not done it they said that this girl was adamant that she had done it williamson county prosecutors repeatedly violated court orders ken anderson had done it previously and they did it in this particular case and that is that is clearly in the complaint in of in a variety of sections what makes what makes the lying difference in this particular case is the order to disclose the exculpatory evidence there not only that they're taking it they're violating a court order and taking court when your client pled guilty years ago and in federal courts the police hearings have many procedural protections including the government being required to proffer what the trial evidence would be and so in a case like this if this presenting false testimony in court i know state courts obviously have the same due process requirements for please my understanding it's a it's a more abbreviated procedure but is there anything you in the record about plea hearing where the government proffer what its evidence was against your client there there is nothing in the record in that regard to your honor other other than it but what i think is very important about that is that they knowingly allowed mr mansfield to plead guilty to a crime they knew they had evidence he did not commit and they did that as part and parcel  the plea but in every deposition their corporate witnesses said this was a brady violation and that this required us to disclose this and it was a due process i elation every day the district attorney that the former st assistant who was directly involved acknowledged that this would be due process file ation as well as the current corporate witnesses at williamson county so everyone agrees the oddity here is extra minutes of mr thompson decides he wants to use all that whenever you're ready made again this morning may it please the court i'm sorry we can't all be together in new orleans this morning but i appreciate you accommodating us remotely under the circumstances as judge higginbotham has alluded to this was a case that was initially and very deliberately chartered down one particular path and then at one point of necessity forked to attempt to chart a different path after this court issued its decision in alvarez but i understand that the court is understandably concerned about the prospect of the case proceeding on the path other than the path it is for close by alvarez and so i'd like to start on the assumption that that path was actually presented by the complaint mckee's although the county disputes that for the reasons that in our brief like a county may be held liable for the conduct of state prosecutors carrying out their state functions based simply on the fact that the municipal entity is the one who signed the paycheck and this of course implicates a number of the cases that are discussed in the briefs starting with crane versus texas through turner versus upton county and on through as to best versus brock the cases that it cites but the story actually starts a bit earlier than that the through line in the legal reasoning starts earlier than that a decade before this court decided kramer vs texas the supreme court decided a case called employer versus pacman and i don't believe the cases cited in the brief so for the case in which the supreme court extended the common law doctrine of absolute prosecutorial immunity claims brought under section one thousand nine hundred and three and when the court extended that form of them unity it adopted what has been come to be referred to as a functional approach to that analysis the court has said the concern is about protecting the office not the occupant of the office and so the analysis turns not on the identity of an individual as a state prosecutor or the staging but upon the function that the individual is performing and what the court said in him bill or is if an individual is performing a core prosecutorial function that is a function that places the prosecutor in the traditional role of an advocate then the state is ultimately the one that is responsible for that conduct but the prosecutor himself is immune from liability and i'm going to the actual prosecutors and i'm assuming it's because of everything you've said about absolute prosecutorial munity what's the connection with the county's defense or you're right that that's why the individual district attorneys have not been sued here is that they would be entitled to absolute immunity and the legal reasoning that it idles them to that immunity is the same line of reasoning that harmonizes this court's decisions from craning through upton and on through does versus brock and that is an analysis that focuses on the function that the individual is performing not on their their identity as a county agent or a state agent or a hybrid of county and state agent so if we look for example to esteve as versus bro the allegation there was that the county had a policy that directed its district attorneys and its prosecutors to use peremptory strikes in a manner that was discriminatory it was not a case that was simply about one bad act or making one bad decision in one case it was in allegheny county had a policy that directed prosecutors to act in that discriminatory manner and what this court held a nest of as is that the county can't be held liable for that conduct because the state prosecutor there is engaged in a corporate tauriel functioning he is operating in that role asa cuter as advocate and in that function the prosecutor would be entitled to immunity precisely because he is operating as an agent of the state and not as an agent of the county the same through lie explains echols versus parker which concern the institution of criminal proceedings another core prosecutorial function and explains krueger vs reamer this court's decision that the conduct in actually trying a criminal case another cold war prosecutorial function of the prosecutor as advocate that same line of reasoning also can be used to harmonize the two cases that mr mansfield relies upon which are kramer vs texas and turner versus a king county so looking to vs texas as the st example that was the case the concern dallas counties process for its clerk's office staff filling out paperwork in a particular way that is you misdemeanor misdemeanor k v s in a way that this court ultimately determine who is contrary to the law held that it was appropriate for the county to bear responsibility for that conduct because it was not and it did not involve a core prosecutorial function that was not a prosecutor as advocate it was and ministry of these are not attorney individuals mistreated and even it even if it had been a prosecutor acting in an administrative capacity of a court recognized employer that there will be times in the course of a criminal prosecution where a prosecutor acts in all ways that are outside of the scope of that traditional prosecutorial capacity it either in an administrative function or the other example an example given in  it investigatory function so we have for example a prosecutor is out interviewing witnesses and gathering facts something much more akin to a law enforcement officer or a police detective that's not core prosecutorial conduct the prosecutor in the final example is the turner case and in the same line of reasoning harmonizes turner is well lets case involved allegation of a conspiracy between the county sheriff as the ultimate repositor enforcement power in the county with the district attorney and the case ultimately turns on the fact that the ring was allegedly all in this conspiracy it is vicarious liability based on a conspiracy participation idea not vicarious liability based on the fact that the county employed in district attorney that's the kind of response yet superior or liability that the supreme court outlawed within the now but which mr mansfield's theory of the case basically resurrect don't resurrect or makes an end run around by making the county liable for the conduct of state agents carrying out their state law prosecutorial functions simply because it's the county who happens to sign their paychecks and therefore those individuals are in some sense represented and so if the case proceeds forward  medicine to tell an individual who is actually wrong by a state prosecutor that he doesn't have a section one hundred and eighty three damages remedy but it's still better than the alternative because the alternative is that prosecutors will continually operate in fear of retaliation and being held liable for money damages for conduct that they're carrying out in in furtherance of their state law duties to prosecute cases on behalf of the state which they represent and so even though it's tough because they were we have to strike the balance on one side or the other and here are the benefits of immunity outweigh the costs what mr mansfield's theory would allow play just to do is to make an end run around the policy choices that the supreme court made in him and say that although this all of the individual prosecutor cannot be held liable and of course the state itself cannot be held directly liable under nine not a person b of the prosecutor nevertheless subject the county to liability and so all of the same concerns this is this interim warm fact that liability the imposition  why ability but have all of those concerns are still present on the prosecutor those chilling effect are still present the only difference is the pay or shifts from being  i'm suggesting that the v a attempt to draw the distinction between quote county policy and quote state policy which is actually what magistrate judge lane did at the rule twelve stage in this case is asking the wrong question and instead the question needs to be what is the policy attempting to direct if the policy is directing the performance of any core prosecutorial function then yes it is true that the that the county cannot be held liable for that policy policy that specifically directs its prosecutors to violate their brady obligations the prosecutors are obviously immune from individual liability for carrying out the policy and then the county itself is not answerable under and so i think the one of the ways the primary way actually the magistrate judge was led astray when he wanted this issue as well stage was that he was trying to parse this distinction between is it a county policy that's at issue or is it a state policy is that issue and his conclusion was if the district attorney sets the policy then it must be a county policy for which the county can be held liable and not a state policy but that's that's contrary to what this court held in esther this where again the allegation was that there was a county wide policy in that district attorney's office directing prosecutors to use rights in a discriminatory manner alesi then as the court held in crane that is a county policy for which the county can be held liable notwithstanding whether the individual actor would have personal immunity from liability or not same kind of allegation that was present in the st cole versus carson case a cold one also cited by mr mansfield that's not what happened here but nd to understand wally you have to understand how he's concluded so  justify state prosecutors bringing capital offense charges against him and he said in response to that threat he made a written confession the supreme court in his decision says while while we that that's true you have a right to go to a hearing to try to prove it so either the court since the writ back to the district court in the district conducts the hearing the the writ it goes to the th circuit and the th circuit process immediately following that sentence the supreme court cited two cases one is brand united states and the other is chambers versus florida and both of those cases concern the present knowing involuntary and so this is so the th circuit's holding there is consistent with what the supreme court said in its decision and then subsequently denied that you're saying use ask to be in court yeah yeah that was the rule that was that was the basis of the supreme court's decision in whaley let me also clarify in case it's not clear that there was no creation of false evidence in this case  us for sure so so if you assume contrary to the to the county's position that the statements were made then you have a united states versus scruggs situation where there is an ultimate correction of the representations that renders it not the cause of the guilty plea so here mr mansfield and his or his attorney especially ultimately knew by the time they got to the plea decision that number one that videotape did not exist and the reason they knew the videotape did not exist is because mr mansfield's defense lawyer did what a good defense lawyer who thought such a videotape existed would do and he filed a motion for its production and in the the wrote resolution of that motion  the prosecutor represented to the court and to mr mansfield's attorney that there was no such videotape and the court in signing an order granting the motion wrote there was no use so mr mansfield videotape didn't exist and the nd piece of inculpatory evidence was this doctor's report and the reason that mr mansfield knew that that report did not exist is that as mr mansfield's expert witness has testified in the case the close file policy as it was practiced in williamson county routinely required prosecutors to disclose that type of material to defense lawyers even without a request i see my time is this is notice pleading none of this was a surprise to the to the defendants it was all open all these depositions were about it could plaintiffs have done a better job with their complaint sure but that's not the standard standard for the court with regard to mike my colleagues comments about the employer case it has absolutely no relevance to this court's decision if a county has a policy that leaves arguably absolutely prosecutors to violate the constitution of course it can be held liable because a county isn't entitle to absolute immunity the county isn't entitle to qualified immunity so whether or not this was administrative investigative or prosecutorial those issues do not control that is one of the reasons why this case was brought against the county but that's a strict strategic issue it does not bear on mr mansfield to plead guilty as a consequence of being lied to correct and with fabricated evidence which is no different than what happened in wales he was threatened it's this child he could not testify but what he was told she's is she's adamant that you did it that was a direct causal link to his play the but without the closed file policy none of this can happen ok so in terms of mono there is a direct link a policy which was known to the policy maker was the moving force of the constitutional violation which is the violation of due process as a result of the close file policy and this see which you can get plea rather than let innocent people have their cases dismissed these are both policies that were pled summary judgment evidence is there which directly caused mr mansfield to plead guilty in this case and which were the direct cause of his involuntary plea according to the texas tribunals and very significantly though i don't have the cites at my at my tip right now each of the counties witnesses it knowledge that these lies and this failure to disclose evidence in violation of the court order caused mr mansfield to plead guilty and were a violation of due process turning turning very cases and judge lane took them up on their offer and didn't didn't deal with that therefore i don't think the court should delve into it but if they if they're forced to crane and turner our panel decisions that pre date any argument that the county has and you would need to overturn the panel decisions much the same way they're criticizing us for suggesting alvarez ought to be distinguished or were changed in light of circuit court press in it and the wild case they're asking you to do the same thing and again these processes they were in those cases the district attorney was engaged in a core prosecutorial function in the same way what they did a fabrication what the quot that district attorney allegedly helped the sheriff manufacture evidence then hit that fabrication while prosecuting the plaintiff that's the turner case and i see my time is up absent a dish no questions i want to thank the court for its time