but mention that mr minchin ski's odyssey through the legal system arises from criminal offenses that occurred in the late hundred seventy seven at which point i myself was in the first months of services in assistant district attorney and obviously in another county pennsylvania and i'm now age sixty six so and complexity that results from the various layers of process which is to say collateral attack following conviction perhaps more discussion of this case by cocking about absolute immunity and application well known of it to specific discovery material and or orders of court and qualified immunity and applicable well known with respect to the say of course i'll do my best so just by way of a quick summary the which i think is relevant to your decision in this case this case is very complicated because of his history of proceedings as the  already noticed and his age the events which took place in this case which were part of this nine hundred eighty three action occurred in the one nine hundred eighty s and it's important to keep in mind that in one nine hundred eighty s technology was place in the one nine hundred eighty s you have to go to the fayette county for thought attorneys office solicit the help of the kind people that work there go down into the basement of the fayette county courthouse and spend hours and hours reviewing  testify if i get immunity he is to stay with me if you would ok we have a need in between a state police officer and both and then good when the state police officer takes boeing to the district attorney's office that's meeting number two if you will correct between the two meetings between meeting two when meeting three as they took place but the meaning to at the district attorney's office was clearly a meeting to discuss witness immunity but one told good one i will provide this information regarding the murders if i'm granted immunity you're going testified in this case and has consistently throughout this he took boeing to meeting to the meet with the prosecutors to determine whether or not they would the same period of hours like so how how could they possibly not be in investigatory mode in meeting too but they can't possibly at this point has wrapped up their investigation with  the with the issue at hand when when good one took him to the district attorney's office was whether or not he would be granted immunity it judge judge heard in this question answers itself doesn't it that if what the meeting is about is securing a witness by means of affording immunity to that witness the investigation is ongoing right it is not an investigative act there are no charges ha that meeting was regarding immunity that is the evidence which exists there is no laws under a finding of fact by one of the many courts two of entertain this case there was a finding of fact that it was an invest least partially investigatory was the owner if there was such a finding of fact that would have been through the hay vs proceedings the superior court of pennsylvania and that's an excellent point basically addressed all of these issues they addressed all the brady violations involved in this case and they found in favor of the prosecutors it wasn't in the til this case got to twenty years later that the narrative changed their narrative changed twenty three year twenty years later p c r e three which was overturned by the superior court and like a criticism of what the federal district court did on haiti is right i mean there's nothing that i die has been passed and i think it's not really a criticism of that you're on i think it's a criticism of you have different people involved you have the attorney general's office involve the prosecutors are not involved in the saviour's pursuit let's get back to the meeting i'm still trying to figure out what the significance of the meeting is as opposed to the significance of a grant of immunity the latter of which is not subject to attack years not under it he said so what he isn't your aren't your clients facing liability for allowing a recording  made there never was a recording of this meeting so you're right it is a so what meeting it is a so what meeting and the trial judge and gates and some improper fact finding to reach his conclusions but the superior court has already  question of fact to be resolved by the jury regarding the existence of a no you are my position is that the district court there certainly by engaging in fact finding but before that the district court eg by ignoring the clear facts of the case as they so the district court has not left open the question of whether or not it existed whether you think that was correct or not as the cooler left that question open i believe the district court has improperly left the question  to deal with the set of facts that has been set out by the district court right we can't question yes or no i would say that you are bound by the facts with regards some unity from the ocean i mean we accordingly anything having to do with the grant of summary judgment here he's not before us in this right that's correct or i was before this case is the application of absolute qualified i consistently justified that he removed a paragraph of the report that referenced the statement being taken at the first phone interview i was later confirmed to be right by p c r iwan which after a fact finding found that no statement took place come to light and when that the report had in fact been redacted it was the year an issue that was addressed thoroughly p c already won before judge franks so prior to trial all the way your early eighty's the defense was not aware that what it had was a redacted report referring to a tape right that's correct our take which never existed well you know aside from the metaphysics involved in that question there were of course alternatives to what mr woman did which would have been would refer to as tampering the good with your honor it's the function in discovery in producing documents he was acting in his capacity as a prosecutor as a lawyer in producing documents in discovery in the case modifying evidence is consistent with evidence that's just your correct order your honor the order itself is very broad however we went to the basement of fayette county and we got a copy of the motion itself and the motion specifically said it referred to physical evidence motions are nice things and they're necessary things but they're not decorative all and they don't establish law or legal obligations this says all of the evidence so doesn't that by its  any degree of discretion from the prosecutors in what they are to handle your honor we believe that it dealt with physical evidence mr mitchell he wanted to appear and review the evidence himself with his counsel he did that at both the district attorney's office and at the state police barracks there's no evidence that that order was not complied with there was no evidence at all in this case that the prosecutors did not turn over show everything they had including the physical evidence at that honor he was not lead counsel he was of the district attorneys at the time and he was a witness and copus was in charge of the document production could we consider mr warman to have been a custodian of evidence at that time i don't believe so you honor i believe that the responsibility for complying with a court order rests with idea copus who said he complied with it you would agree as a matter of law that if in fact he was acting as if he was acting as a custodian of the documents and nothing else within his prosecutorial function i would say that would be correct here on hundred ninety three his order that he cannot compel the production of a tape that he has been assured never exist that judge franks never ruled that a tape recorded statement was not taken he only referenced that it's been assured by warman and solomon that it never existed then there was additional fact finding taken by judge few dell because there was after discovered evidence in p c r a three specifically a videotaped deposition interview a richard by one by defendant fay arc where faye ott himself refers to the statement being tape recorded on september one thousand nine hundred eighty two there are also two waiver forms that were produced and discovered for the first time in two thousand and one during p c r a three they relate to the tape recorded statement so current role that the issue of whether or not the statement was tape recorded will be an issue of fact for the jury at a trial all right let's let's look at the issue at these order now i think he said law is clear this is the language from yours it's well settled the process users are entitled to absolute immunity from claims based on their failure to disclose exculpatory evidence so long as they did so well functioning in their doesn't that authority afford absolute immunity for the prosecutors here even though what they may have done with incomplete or in the views of others even wrong no sir because of the authority of god versus malone which specifically stated that we are loath to grant absolute immunity to prosecutors who disobey court orders of course there is no advocacy involved in complying with a court order there is advocacy in arguing a motion to compel a launch once a court issues a court order and this is referenced in rights versus county violation of a judge's were in other words malone's language has to be read in the context of the subsequent snyder opinion if i may have won the schneider case is that just might my point to you is that if if the obligation on the part of the prosecutors here to two is to and there's no discretion involved in complying with a court order and the premise for some of course there's no discretion involved in complying with any who are to the extent that that water's clear and one can raise questions about law it's not or it's not it's not a matter that is subject to one nine hundred eighty three liability every time he state officer is in violation of a state judges court that's my oh prosecutors just like any other party any other litigant they have to obey court orders so you know what i'm not sure you're apprehending the chief question let me let me thank you i can help that and i don't have the text to judge and share these were right in front of me but i have read it several times and interestingly it came down in the wake of the problem geisha of pennsylvania's very first pretrial discovery remember that very well in the very late one nine hundred seventy s and while the word neither one of the order does not specifically recite the discovery rule it's pretty clear that by its language  based on the state discovery which again unless there's some other bases in constitutional law the mere violation of a state judge's discovery order under state criminal procedure would also not give right that was violated by the disobey ends in a repeated flagrant violations of the court orders in this case by judge she kathy and judge franks mr luncheons he had a constitutional right to a fair trial and that is where the constitutional right comes in and the constitutional violation comes him orders the prosecutor to advise if things change so that that mr odd could be released right correct so there was nothing there's no discretion involved it was a ministerial i reckon there's no discretion involved or permitted in complying with a court order that says you shall turn over to mr munson city and its council all of a tizzy all it so that's the nub of the dispute is your same turn over all the evidence means all the evidence not with the motion said the motion is important impertinent jessica is order was crystal clear unambiguous and it was all the evidence and judge frank says order was very clear as well and judge woman by the way filed a pleading december twenty second one thousand nine hundred two he was personally involved was as an advocate on behalf of the calm he was personally involved also though as the score pointed out as a clear custodian of records which is administration of function not an advocate the function which is also not entitled to absolute immunity ninety three mr much and city had a clearly established constitutional right to explore the poor he added and which was in the actual possession of the prosecutors and it was in the actual possession of the prosecutors appellant's here well i'll just well on even when you say when you say in response to their argument that no it wasn't in their possession it was with the state police the montgomery goodwin the prosecuting trooper testified saved and if that was that found as a matter of fact anywhere it was found as a matter of fact by a judge few del and it was found as a matter of fact by judge lanahan on the hate b s and i believe by the third circuit on a farm and s the possession of well known by the prosecutors of this brady material at what point in legal obligation be required to hand over to the defense of brady material or discoverable material that is in the hands of the police but not in the hands of the us what point is that right the reason why that is a red herring is because the all the scope of three evidence here at issue was in the actual possession of the prosecutors effective what they prior to robbery not even in the state of pennsylvania but when gave those entire files to one man and solomon is twelve years before calls yes or so good witness testimony establishes evidence that issue was in the actual possession of the prosecutor's therefore to my mind any discussion of well if the prosecutors know it was in the possession of the police if they knew it was in the possession and they knew about it that's just the rationale behind my red herring argument if anything else now let me let me just ask another question for the at the motion to dismiss stage the district court held that when copus withheld evidence he was acting as a prosecutor a the district court here by protecting the finality of a criminal conviction remember that yes or why shouldn't the same be true as to warm didn't engage in the same column that was an inter which states we we're not going this court is not going to give absolute immunity to prosecutors who this obey a court orders ok so as i understand your answer then unless so first on the issue of judge frank's order in few c r iwan and the discussion that just took place at the outset that josh rice did not admittedly maintain a record of the documents that were correct and that involved two police reports that were presented to him but i wanted to point out that there was no record we don't know what was produced this mere speculation as to what was or was not produced or whether or not it was material or that it would cha on the issue of god versus malone i do not believe that this court made such a sweeping statement in all verses and along that it is going to create section one hundred eighty three violation for vi for any prosecutor tours  violation of a court order are versus malone was completely distinguishable and your honors know that the case involve witnesses who were incarcerated it wasn't someone who was actually going prosecutor at the time times but at no time to goodwin testified that i went in gathered every state policeman who did an investigation into this case and that i got their file and then i put it all together and then i gave it to the prosecutors and it is important to as a core pointed out that at the time that these events took place prosecutors were not responsible for producing or they were not responsible for obtaining what was contained in the police files but if the files became later if the files were given the liberty and the liberty to the prosecutors the responsibility attaches at that moment right i would say you are yes if if they had the files there's hope in the courts of the united states will soon be brought to an end one way or another it's certainly not a tribute to the justice system that a matter has in various stages