proceedings and will participate but his absence says he's here in new orleans but he's not feeling his best so he says he's not president otherwise we're all here and we're happy to welcome our newest judges judge down willett and judge james hold to our invent proceeding this morning and all else we're in good shape to proceed smartest and it all counsel have waived their uninterrupted time so when you come to the podium you're  open for questions and i only have the nation is that you stay in a microphone because we do record to proceedings and that you answer the questions as fully and succinctly as possible i'll do my best to indicate if you otherwise can't figure out where the question is coming from but bow means answer the questions that will be good to go all right that's it first up t prior brady violations and so the question in this case is whether or not the of the single incident exception an exception that this court has said can only be rarely applied and and has only once been recognized as falling vs united states the case is over on that basis and then we finally get into the constitutional issues which i think are very interesting but the the interest the issue that's been briefed by all of the  parties on whether or not there is a brady duty in the in the plea context or what the duty should be really doesn't apply in this situation because what we're dealing with here are police officers that turned over  information along with a probable cause package to prosecutor and that's the end of it from the police standpoint the police have no control over the of the plea bargaining process the police don't dictate what discovery would be done by the defendant to the police if they've not received any requests from the prosecutor for anything in addition to what's been turned over as part of the probable cause package have absolutely no involvement at case very well illustrates that in situations where were cases not worked up for trial and the prosecutors are not working with the police officers in gathering information it's sometimes will happen that things fall through the cracks at the at the police officers don't always think to turn over everything with the probable cause package is there a fact issue on the training provided to the police as to what investigatory materials need to be turned over see i'm sorry i didn't i said is there a fact is she you know on what whether officers have been trained on what investigatory materials need to be gathered and turned over brady training for the officers there is not a fact issue on that point the training claim was not relied upon by the district court in in her ruling and that it that issue has not been brought the city's expert who was training officer for the department of public safety that texas police officers in order to be certified as officers receive basic training in in brady obligations and that is  kulpa tory the police officers are not lawyers and they understand the the the rule in a very layman like way that all the evidence that has to pertains at all to a criminal case should be turned over  you know all the fine subtleties about whether it's impeachment or whether it's an incompetent or exculpatory is isn't something that they're focused on if the if it pertains to discovery sense it's turned over and that's what we're taught there's no testimony to the contrary right everyone every one of the fellows who was deposed said we turn everything over that's that is that's what they say that the normal rule is that we turn everything over and that there have there have not been any reported by lation is a brady by the the there are a number of layers of arguments that are also out of the brief and i'll try to do it in a simple of way as i have to you still have to find out the difference between whether it is a negligent or even grossly negligent act of individuals versus what the district court 's the question there's the question as to what whether or not the officer is committed to bob brady violation in the first place and so you know the question is you know who has the obligation to turn it over is that everybody in the police department people whose whose job it is it to work with the prosecutor or is it only the job of of those who are assigned the task of interacting with the prosecutor i make can i ask a question starting sort of first principles highest level generality  basis officer brown's officer brown's incident report starts the narrative both the tension officers entered the cell to take the subject over to the padded cell until he calmed down so my question to you is is that starting sentence to the narrative that the government is giving the court that's going to accept the guilty plea is that sentence contradicted by the video put aside imputation attribution if the prosecutor ndermine the elements of the crime on which mr alvarez was charged one final question because you'll have a lot of question would you agree though it would be brady had the parties gone to trial because even if it doesn't directly exculpate it's certainly inconsistent with the video is inconsistent in that the victim arius never entered the cell to take out alvarez the video shows the algorithm exits and then he surround it fair to say or not is it brady had they gone to trial you know i don't believe so i don't believe so and i don't and i'm and i'm not trying to be basing but i can't remember the specific detail that your honor is referring to where they go into th specifically on the on the point concerning the the the liability of an officer for a variety violation to distort the whole analysis because if there's not a brady violation by it by an  officer there's there's not mean a simple i belittle and we don't even have to ask you whether the chief was deliberately indifferent to it to a system that was highly likely to produce a brady violation in the two levels of analysis here first of all was there or was there a greater violation by any individual officer in the police department secondly is the is the city law a bill because that one incident can be attributed to something that the chief did that he was deliberately indifferent to that that was that was very highly likely to produce the brady violation that occurred in this case i mean there was one and i don't see that there was a brady violation committed on this record in the reason is number one the officer who was charged with the task of interacting with the with the prosecutor was not aware did not know of the  years and he knew that the close circuit t v was not recording unknown to him within a matter of months before this incident the city upgraded the video cameras in the jail and and it and gave it the capacity to record what was being videoed so no longer did the jail did the jailers in the office have the capacity to see what was going on in the  building there was a record that was being made of it and that's that's where the slip up occurred here but he didn't ask for a copy of the video had he done so we wouldn't be here today at least not on this issue but he didn't so when he sent everything over to the prosecutor's office the video was not included in it the video that was that a copy was made of and this is also out of the brief the grid video that a copy was made of went up the chain of command in the form of an administrative review of the of a disciplinary potential disciplinary problem did the jailer use excessive force in this takedown in the jail in everybody or a fact issue on whether the department and the chief in particular had a practice of not allowing the tiriel from the ministry of or i investigation to get forwarded to the criminal side i know you say that policy only applied once it got to the i a e a stage but there's testimony from lieutenant etheridge and he says when i say administrative investigation and when i say i investigation and when i say workplace investigation to me they they mean the same thing so that was what etheridge said he  you when you read that testimony in context he's saying you know he doesn't know he didn't you know he's not handling the administrative he doesn't know but there's not any set policies i mean what one of the things you'll find in this record is that it wasn't turned over here it wasn't turned over in the lopez incident which is what led to it being discovered ultimately here when it was discovered mid trial in lopez right well that lopez is understand and this is not your record and so i'm going to tell you from that from what i understand being outside the record but the at the video in the lopez situation which which which which surfaced after of the alvarez situation so this is not something you put the city on notice that there was an issue about this previously another feature in the lopez case which mr garza testified to in the state hate me as hearing which is that it was his normal practice to inquire about the existence of videos now we have reed acted video came about the the it was it was as i understand it you know wasn't part of the lopez civil case bizarre understand it lopez after he was acquitted follow suit against the city i understand that it came up supposedly came up during discovery but how is it that it became a read back to video i don't know how it became one all i know is that one can draw those conclusions i mean wasn't what sent the whole sequence of alvarez hey me as pleading in the exhibit lists of the government in the below bow's prosecution yes i mean it  was it it was it was part of it it was no it was not a count in the indictment but it certainly came up in that connection it did come up in trial it came up in the case i didn't attend the trial so i can't tell you the answer that is there evidence in the record i'm over here we're i there so many of us is there evidence in the record that the normal person who gathered i had to disclose knew in fact that there was a video's system and routinely would get the videos is there any evidence of that there that the person who would normally gather things and take them to the prosecutor knew that there was in the criminal investigators were supposed to amass in order to send information to the prosecutor and at least two times in that exhibit there is reference to videos you don't remember if even if you're correct that there is no policy as a matter of law to we have the discretion to reach the issue anyway because we have opinions in the area already and we've n versus city of columbia mistaken where were you had before you had this state created danger theory and there were some questions as to you know how that may apply on the merits but then there was also the questions about you know what's what's clearly established law and so in that case i remember that you know the court wrote in effect like two opinions i don't know whether one becomes dicta over the other but but rather than waste one of the other than waste the on bob court's time if the issue here is you know whether an auto that to that the court wants to strike at straightening out some of these brady related issues then you know you could even take that approach i suppose it's within your discretion to do that i'm not going to say that there is a hard and fast rule that you must and cannot decide are not the very best of records and follow on as you were talking talked about training early on and said well that one really mentioned in the district corridor and so on but if we were to conclude brady does apply in a situation like this but further that the single incident rationale and it was not supportive then wouldn't it make sense to send it back to the district court on the training issue well i don't think so because you'd still have a single incident problem  you don't have a barrage of these situations that have occurred because officers haven't been trained you had a you had this was the this was the first incident of this nature that occurred the second one if you want to say it was a brady violation involving three can lead to a single incident if the effect if you never and i know you started to get your certificate as a police officer you have to go through the training that seems a little weak to me if you've got an officer who's been there twenty years and his last training was twenty is like saying well you learned this in law school the difference in the thompson versus conic was while your lawyers you have these duties you have to go to see only use and so on and so forth it wasn't just you learned in law school if these officers are being trained on brady then isn't it inevitable a brady violation will happen again i would i would say that there is that there is training on on grady in the sense that the police officers are taught  disclose all pertinent evidence just eating when does this occur what is the record tell us on that is it just when they get there certificate you know twenty years ago or is it like a sealy kind of anal  said that officers as part of their schooling and to become certified do receive that training and of course there's on the job training that's the way things are done that everybody knows because it's it is it is the practice of the police department to turn everything over there is that kind of evidence to the on the job training that people if you don't tell your officers what everything is you don't tell them that there's going to be videos and stuff and you could say given everything however you don't talk about the secret file room in the secret video and all of officer didn't think to ask is is that is that camera making a record or is it simply close circuit t v i mean you know it do you need to train the officer on that level and that was sort of the issue that came up today and they are in the comic case i'm looking at the magistrate judge opinion and i do not see a claim of failure to train is that accurate or not accurate if there is there is not a clear failure to train reference in the magistrate's order there is one that is referenced in the pleadings they are trying to claim that it if they didn't cross appeal how can we take that up that's right it's not it is supported it was not part of the case it wasn't taken up as on his cross appeal four point asking thank you good morning may it please the court the jury shanker for the united states your honors if i may add like to start with where we ended in our brief which is by saying that no one has an interest in an innocent person pleading guilty in the federal system we have policies and procedures in place to minimize the risk of that occurring but the question here is whether as a constitutional matter in the hundreds of thousands of cases that are resolved by guilty plea in this country the prosecution must essentially disregard it defendant's expressed desire to admit guilt under oath and must search his or her files for any and all information that might bear on the establish the deprivation of a right imposed by law in this case a constitutional right so we would have to in order to grant or awarded damages to the plaintiffs like a section twenty two five twenty two fifty five petition or really correct on what would be the underlying constitutional claim because at least our son and i have a freestanding innocence claim that's recognized on he b s and there has characterized it the most likely avenue for relief in that situation would probably be an ineffective assistance claim that and i'm not opining on on the bloody of such a claim in this case i do know that certainly defense counsel in this case you as your brief suggested there are remedies if some i mean first of all this hypothetical about an innocent person proving guilty how many examples of that are there your honor i think that's the right question and i don't know the exact answer to that i know that some of the amicus briefs that have come in have talked about the incidence of actual innocence actually innocent people pleading guilty i respectfully that's not the meaningful statistic for the question before the court in this case really the meaningful statistic is how many actually innocent people pleaded guilty where the government had in its possession evidence of factual actual innocence and didn't turn it over and the defendant would have gone to trial and the defendant would have been acquitted at trial i have to i have to say though that the way mr alvarez his brief is structured he doesn't talk about actual factual innocence which is not proven by the unredacted video establishes in this area would apply to the vast majority of cases where we're not talking about a discrete piece of evidence that and again i'm not planning on whether the video here does do this but if we assume the video here shows actual direct circuit is it the government is the government asking for an expert back to judge hose question is the government asking for an explicit brady waiver because those circuits whether you think in a developed way or not have suggested there's a plea pre constitutional requirement as to exculpatory information well you're right so i think several answers to your question your honor we're not asking for brady waivers because once again once a defendant enters into a plea that waives the brady concept entirely you have not gotten mean except that in those circuits there is a constitutional pleat pre duty well your honor actually i think if you read those cases a little more close i'm not suggesting you haven't but it's important to read those cases quite closely because while they do have lines in language that suggests a broad rule what all of them have held in this is sanchez case from the ninth circuit in ninety five and the u s b right case in the tenth circuit in ninety four both of them say yes you have a pretty please pretty right to sculpt or information both of them then go on to say what we're actually talking about is it at actual piece of evidence that the government already has the prosecutor or not the prosecution team we're not talking about that these cases talk about and that is motion for me last question for me is if we were to reinstate the panel which reinstates our convoy and matthew decision does the federal government see a split in the circuits or not i don't counsel one of the bases of your brief is that this would be cumbersome on prosecute teams and delay please but is that really the case in this circuit where you pointed out that the federal government already has this in their manual that they're doing this in their prosecutor manual and the state of texas already mandates it by statute so are you saying that because of mississippi and louisiana that this would be cumbersome or how would this be cumbersome here in this in this circuit the difference your honor i think goes to judge question which is what we do in the federal system that would essentially require the government to search all of its files and locate all exculpatory information before allowing a defendant who wants to go into court and admit his or her guilt they would have to search all of their files  government before allowing yes wouldn't one of the complications of that theory be that if the d o j is investigating someone and the f c c is investigating some line and the office of thrift supervision is investigating someone how could you can find that obligation to the d o j even though there were separate investigations yes that's exactly right your honor and again in the vast majority of cases that we handle it's not a discrete piece of evidence that goes directly to an evident defendant's guilt or innocence we're talking about wiretap cases we're talking about massive white collar cases with warehouses full of information the government would have to and i realize my time is up the to a prosecutor taking a guilty plea despite the government possessing evidence such as a video or a d n a test demonstrating the defendant's innocence the reach of brady follows from the supreme court's in effect of assistance of counsel cases  imagine that alvarez is criminal defense lawyer had been given a copy of the video but he failed to look at or tell alvarez of its existence that would have been a clear example of ineffective assistance of counsel under frye and vidia enabling alvarez to challenge someone who is contesting it seems to me that there are two different standards of due process and although you may be entitled brady you process rights and probably it does not follow a the government has said the backstop of trial is a sufficient fairness guarantee to ensure in any violation of ineffective assistance of counsel is satisfied the supreme court squarely rejected that argument and fry and padilla and after saying that that doesn't accord with the modern reality of the police system where ninety four to ninety five seven percent of cases and in pleas such that the plea is in effect the main event and therefore the supreme court that ineffective assistance of counsel k said basic minimal protections of testified there's no officer correct you know the criminal investigator and arias the jailer said there are signs all over the jail so if you're in the jail you're being videoed so you're you know  as been asking i think are simply not present in this appeal because again we're in a posture where the liability was granted summary judgment in favor of mr alvarez if the court thinks that there are factual disputes as to that the proper resolution of that would be to find on the government's summary judgment motion which we will have to make eighty two million dollars and remand the whole thing for a new trial as long as you get some rule about that that is certainly not our preferred approach your honor and i will address the court's question with the courts  court should should not do that i'm just saying i think the worst case scenario for mr alvarez is the court were to find that the summary judgment should not have been granted his favor in terms of liability not that that because the summer the government summary judgment with the city summ judgment motion is in a walk atory and not before this court let me ask you you put a great stock in for those cases were decided after two thousand and ten were they not yes your honor so the time that all of this occurred didn't give you a right and yet you want to fix two million dollars judgment on the city of brownsville for not having the foresight to know about  that and the first and the second and fourth all have great doubts about whether brady can be applied preplan do they not and the other cases the east side not a single one of them ended up giving relief to the defendant correct well i think in west virginia the ballard that's the only one well and that just goes to say the materials materiality standard is demanding and we certainly have no quarrel with that which shows that there isn't any sort of floodgate concern stemming from this we that the initial part of your question suggested that the government might not have possession of the evidence and come to the government i'm asking you to assume the lab technician for the government has processed it and it is shipped or they've developed in arizona the traffic no your honor the government does not have to say you cannot confess and that's for a few reasons first the question is not before the court but assumption question assuming right is that can this right be waived and that's not an issue that that's that's here that's something a court would consider at a later point but second if a defendant wishes to walk into court and confess then that that is that is certainly their right to do so the obligation of the government but that's this case he walked into court and chose to confess and the prosecutor no one saying the prosecutor knew that's this case the obligation of the government is to identify whether it has it's called the tory evidence in its possession and provide that to the government i say that often but it is the a i'm sure you're familiar with this three point eight d does say prosecutors have a pre plea duty but in the next sentence they say i'm going to read prosecutors are not not further obligated to conduct searches or investigations for favorable evidence and information of which they're not aware and you are the rule that we advocate i think stems from two things that are currently true which shows that there's not a practical burden the first is that as a believe the city acknowledge prosecutors have to look at their file before they make the proffer to the court as to what the evidence would show if they took the case to trial they have to look at the file second under brady government investigators must identify exculpatory evidence and provide that to the prosecutor that's  well established rule all that the rule we urge requires is an investigator provide the information to the file perhaps that there are that the prosecutor would be better if they have a policy telling the investigator to flag it such that when the prosecutor looks at the file in the  any evidence the government possesses the prosecutor will be aware of it and can therefore disclose it you can see you can see it in this case that the d a s office to prosecution team was unaware of the video when alvarez entered  prosecution team that's right yes your honor yes and i'll say though about the practicalities of this issue this rule has governed in several circuits for for several years in the seven to ten thousand circuits elsewhere it's governed in west virginia and in nevada and there is certainly no suggestion by the city or by the united states that this is posed any practical or pragmatic concerns despite this rule being the rule of law for several decades district courts have local rules requiring pretty poorly disc disclosure brady as well in the defense team so it doesn't increase the obligation of burns on the investigators to identify and maintain exculpatory evidence just is just a question of when along the process it must be disclosed so i don't think it expands  criminal discovery i think it's a question of the time in which the that criminal discovery in certain it cases must be disclosed to the gulf states you're seeing right now does not require up no your honor it does not alter a right of discovery in any way it's adjunct to the existing rights that exist under brady it's just a question of one brady evidence must be disclosed it's no additional substantive right to discovery beyond what that's i would suppose it could be etheridge who investigated from internal affairs but but that said the theory of the record have you read the record yes your honor the whole but the theory our constitutional seery here trains on chief garcia's behavior because the theory in this case that the the court granted summary judgment on and let me know that the court granted summ issue on which the district court granted summary judgment was single incident liability based on non disclosure had nothing to do with failure to train in fact the district court said explicitly there  policies separating the c r b and internal affairs they are not facially unconstitutional indeed they may even be required constitutionally so there is no failure to train issue properly before grant that letter cleaner but that's because when the district court granted summary judgment on liability as to the policymaker activity of the chief garcia it didn't have to consider alternative theories once it found one ground of liability for the contains both a failure to train theory as well as a you don't have to cross appeal if you are successful one claim is that your arc our position was we advanced multiple claims the district court or multiple series of musical liability at the court agreed with us on the policy records that tell us about that on the right but but if it was not argued and proved and even mentioned in the district court below we shouldn't be getting into that and the magistrate judge wrote an extremely thorough opinion here and nothing in the city of brownsville and he concluded there was a fact issue about the municipal liability of the city of brownsville and that had to do with the policy that where he was under the impression about the internal affairs keeping everything trained the investigators from the internal affairs of name their names it would be after it would be crazy how in the whole chain of command because its chief garcia testified that there was no training subsequent to what they receive  stuff from the computer he was the one said i didn't no one told me there was a policy not to give it and there was no written or implied policy from the chief not to give it this just the way i've done things but what of the series that the district our lot in which we think is the internal affairs material should not be shared it read in context if you keep reading he said that doesn't apply to things like the video but what he had said was in the structure that he created the district was very careful in its analysis of the factual material or the factual issues here was that the structure he created was he was the go between between the internet read his deposition it's not what he said about the video well there are i think he said as as a general principle that he was the person who reviewed internal affairs division deposition for themselves because in context he said that did not apply to evidence like the video in your honor if if the court thinks that there's a factual question about that again we disagree we think that the district court was correct in finding summary judgment but again to the extent that there's a question on that that at worst case for mr alvarez if you're the man what the district court found was that it's a single incident liability because chief garcia did not read the report was unaware of the video acknowledged his responsibility to turn it over and that that created a high likelihood of a brady violation because the buck stopped with chief garcia and the question i have about it how do you know there is a high likelihood of a brady violation in the record there were about five years worth of what i believe were internal affairs reports summaries and a lot of them have to do with things like misuse of property sleeping on the job improper encounters with other people you know a lot of those internal affairs reports that he may or may not have read had nothing to do with excessive force we you your brief cites thirteen incidents of excessive force but only three of those resulted in charges against the the  one of those is this case and one of them is lopez where the video was turned over and i'm not clear on the third one so where is your deliberate indifference to a high likelihood that a brady violation would result in separate charges so there are a few different parts of evidence in the district court details this at the record at page ten ninety seven and it's district court recounts through the evidence it's the chief garcias testimony that he was one responsible and he had this responsibility to ensure that it avoided brady obligations as ridge the head of the internal affairs said that there would be flaws in the system if chief r c a did not review this information that's that's not the standard of deliberate indifference negligence even gross negligence is not the standard of deliberate indifference where i think this satisfies a standard of deliberate indifference people you think someone in the district judge did and i want to know your best case for single incident liability we have birds versus st tammany parish the record which is a similar comedy of errors within the police department that resulted in information not being turned over to a prosecutor and the court found no i think persia's is actually very helpful cases the district court found for mr alvarez in this context and the key point of distinction between berge in our case which i think makes a very substantial difference is that inversion the conduct that caused the constitutional violation was that of an individual officer subordinate so there was a need to rely on a failure to train type policy that required the deliberate indifference come in that context which the court found it was difficult to a single incident liability here by contrast the actual concrete decision that was made which was not to look at repeat or routinely these incident reports was made by the policy maker himself not that but again you're mischaracterizing what he said he said i didn't even read the report and the judge says his failure to read the report meant that the video was not turned over which in turn meant all she said is all she said is the district court the policies failed the fact that policies fail does not mean that they are unconstitutional right it means that they may be erroneous they  negligent but it does not mean that their own constitutional what the other i think that conflates two separate policies and the district court said the pot the first policy that failed was the structure where chief garcia was late but let me let's stop right there because w and there was no problem giving it to you there was no barrier regarding this video the chief said so so in everything you're talking about in context or the internal and analyses documents in the internal investigation chain not the underlying evidence itself which is the video the jailer himself said if i think was brown had asked me i would have given it to him i wouldn't have to ask the chief he didn't think there was a policy like this none of the evidence supports what you're saying which is that it goes down to the level of this video that the the chief had a policy that you cannot turn the video or without my permission the evidence is one hundred percent the other way two things are for first i do think the evidence is just a court found  were cabin and they were told not to do so but even if the court disagrees with that characterization it's the district court found of his testimony still that even if there was the conclusion which would not be a conclusion i think the court could reach but if there was the conclusion that the investigators in the internal affairs site deliberate indifference you are either depending on the district court or you're arguing a different theory here because precisely what that she said the policies failed they were facially constitutional she says that and then she says exactly what i've said two or three times before the buck stopped with chief garcia his failure to read the writ he said and in your briefs you said she for garcia acknowledged that he should have read that and he should have turned over the video because he's the chief that's what she that's the theory that she adopted are you agreeing with that theory are you proposing the theory that she didn't agree with incident by billet case based on a deliberately indifferent act in action by the by the chief and i think that is properly viewed as a policy because he is a policy maker but you are the first policy decision that the district right on  five us was creating chief garcia is the go between and that's where you're out of the district court found that that was not facially unconstitutional because it could work if there was diligence in doing so now the district court says it's probably not a very good idea that the problem was not the creation of that structure the problem was subsequent to the creation of that structure the district court or that the chief made the decision not to actually look at all of the reports  like the evidence that the issue here is both impeachment of the officer because it contradicts his statement and exculpatory what is the purpose for to get around really well your honor ruiz does discuss impeachment evidence and in the context where you have one piece of evidence that is properly characterized as both impeachment and exculpatory as i believe the buffy quote from west virginia says the proper characterization of that would be exculpatory if there if that has constitutional significance but in time in terms of distinguishing between exculpatory impeachment i'd like to know that there really there isn't much of a practical barrier and i think that's demonstrated by the fact that the u s attorneys manual decision not to look at this is the policy that you talk about that single time going to happen other times be the single time in this case that he decided not to look at all that you make that became a policy is that point yes or no i think there are two ways you have anything to support as far as case law is concerned i don't have a case directly to hand your honor but i want this to be the case this would be well i think this is an unusual example where you have the policymaker who is in fact the  person who is making the decision and all of the policymaker cases generally of which i'm aware the there is a divide between the subordinate who is engaging in the conduct that is alleged to cause a constitutional deprivation from the policymakers self and the these cases about single why isn't that failure just negligence as opposed to a new policy well i think the question is is it negligent or is it deliberately indifferent and i think in this context it's plainly deliberately indifferent because there's an obvious risk that if he failed to undertake the obligation that he imposed on himself policy makers deliberate indifference to a right that the circuit court had said doesn't exist well it's not clearly established we actually had said it doesn't exist so how could the policy maker be deliberately indifferent to a constitutional right that we'd said didn't exist i'd love a case so i don't have a case it's on those unique facts for you to run and i can look for one after the arm to be helpful  understand your question your answers as to why we can't just render on the single incident in the policy are your answers that the case is not pursued really  so given the summary judgment posture second it that factually at the very least there's a factual issue on it and third that you have an alternative theory that was pleaded  not as significant as the government's position would suggest for a couple of reasons first the u s supreme court's decision in kyle's has long placed an obligation on the prosecution to determine whether this type of information is in the hands of others acting on the government's behalf so these procedures are already in place what we're talking about is merely moving those procedures to possibly moving those procedures to an early stage in the cases i believe just cause to have referenced there's variance already in agreement yet the prosecutors in that case had found it workable to include the safeguard that the supreme court repeatedly emphasized in that opinion that is that exculpatory information would be disclosed and as mr alvarez's counsel recognized the argues for a mandatory disclosure of non impeachment exculpatory evidence somewhere somebody was arguing for and require disclosure of actual but tory impeachment evidence i don't recall the exculpatory being used in conjunction with impeachment in the in europe well i can quote it it's when justice prior sets up the issue before the court and source justice prior could have been inaccurate in his characterization but i think we would hesitate to call in that i did i wrote i would agree with your hesitation your honor what i recall is the in the first paragraph of the court's opinion a really big quote from order and that quote as i recall does not include the word exculpatory and to the kind of a thing to the heart of some of these are asking about your honor i would note that if you were to review the briefing and even the argument in the risk case it was much broader than what the court ultimately guilty by an in by innocent people how would he i know what the defense counsel answered there how would you answer that one you are on as defense counsel and so there i don't think this rule in any way encourages innocent defendants pleading guilty what this rule is meant to do is to safeguard against that risk by arming them with sufficient awareness about what is likely the most relevant circumstances my point is if they know they're guilty and want to confess all this rule does is give them information to falsely state to the court that they're guilty when they're not your honor i do i would disagree with that in the sense that this type of information even if an individual is of the rules we propose would indeed apply even for those that are guilty but by turning over material exculpatory evidence by definition that type of evidence tends to refute their factual guilt for the crime so i would think that the the judge at some point ask something like are you pleading guilty because you are guilty and or there are that are the facts that have been announced by the prosecution basically true so there's that there's a thorough vetting of whether this person in every properly conducted guilty plea i understand you on this point it's a two part answer if i may those protections are fundamentally corrupted when mr whitely this very specific type of information that goes directly to factual guilt is withheld and i would do that i just don't understand that when when when the defendant is asked are you pleading guilty because you are guilty and here are the facts and i don't understand how how that proceeding is is is corrupted you but the court did not did not rest to deduct the whole but that wipes away the significance the constitutional importance of the protections that come before they recognize that despite those sworn missions of guilty despite the will of the eleven process having gone through there are circumstances in which the plea is simply not constitutionally valid let me i mean i ask you the question i asked mr oliver as his attorney and that is since alvarez was represented in his guilty plea by a fellow who had been a criminal lawyer in brownsville for twenty years and since there were signs posted all over the jail you are being videoed which and we know the defendant gave the bird to at least one of the video  i'm time out ineffective counsel i realize that counsel i really i said from the brady standpoint the prosecution is not required to wait for counsel to make the request but counsel himself even the this is supposed to make a thorough investigation yes your honor but if but this fellow told me he was guilty evidently so i'm not sure you're on but in terms of how that process affects the individual that's in the seat and facing deprivation the government to turn it over because it goes so critically to the defendant's factual innocence well that you're not you're not taking a position on the status of this video are you know your honor we are not as we noted on page twenty five of the record we  law in that area as it specifically relates to this issue and enough i guess what i'm wondering though is if your proposition that brady follows effective assistance of counsel and applies to plea bargains i think we would logic would dictate it applies to defense attorney is it your position that this would encourage integrity in the representation such that there would not be encouraging the person to go ahead and clean just say it so that you can get the good deal  is that part of the argument that it encourages integrity in the for the by the by the defense lawyer and absolutely on our positions that in this encourages integrity at all levels and some of honor i like to come back to a few points that i started off with today and you know and i'd like to go to work off of one of the points that judge jolly made earlier and that is you know when we're dealing with a play situation we're really not talking about radio at all we're talking about a different set of due process period and that's the way that the that the other circuits have dealt with that so from ruiz we can we can assume that we're not dealing with brady anymore we're dealing with something else i mean we're all talking brady but really we're at a we're in a different due process  analysis and all of these cases that deal with prosecutors obligation to come forward with the evidence at the at least before the trial so that the the criminal defendant can make use of that in the trial in the in the fact finding a truth finding context you know it doesn't really apply in this sort of context because it's the defendant that has control over whether he pleads pleads guilty he can come into court and simple or a man can say i'm through all the procedure he can plead guilty in this particular situation it doesn't make sense to put the burden on on the on his counsel if he wants to do discovery sense of pain as to the city as to whether or not they're ready think there's anything else as opposed to expecting that the police officer that delivers a probable cause package to the prosecutor's office is going to have everything will have to have emptied all the files i mean i'm talking about all the civil service falls where they may be impeachment evidence in the in the civil service false or possibly other evidence you know there is that there is a there's a statute that that i wanted to bring up in context of understanding what how the police view requests for information that deal with personnel issues it's in our civil statute civil service statute one forty three point zero and you know one of the local government code and and this is the sort of protection for for employment falls of police officers is common throughout the country and i know that there are a number of cases that deal with what do you do with brady materials that may be in civil service falzon different states have different approaches well there is there is in texas an approach where they statutory procedures in texas to avail themselves of the discovery process subpoena the records have the judge review it and turn over all the brady information you know they are in the position to either say that the brady right exists and then it is a trial and submitted to the prosecutor to the time that an indictment was fallen and a guilty plea was heard there is no evidence in the record and as i understand it there wouldn't be any evidence to suggest that that the that the prosecutor was in touch with the city from the time that they receive the probable cause package until the time that they negotiate the plea and the and the defendant gives his plea so what it what did the police know they may be submitting these things to the prosecutor of probable cause we encouraging departments and prosecutors to have sort of a deliberate ignorance of each other and not to talk to each other so that the prosecutor can just caught it now i mean gee they changed the rule about video versus closed circuit you know anything about that and everybody is then sort of forced into a world of ignorance in order to avoid the you know there are obviously there was some ignorance in this situation i understand that that there are cases that say that that that if there is a duty on the prosecutor to enquire what what  what evidence is available the prosecutor obviously is one of the frames the complaint he's the one that that combat frames the indictment the prosecutor is in a position to know what's relevant what's not what's material what's not there are the ones that can make the inquiry of the of the police department as can defense counsel but the the the the notion that it should that once the police submit a probable cause package to the prosecutor and there it goes in there may be an indictment or not if the police haven't heard back from them are they to assume that there is something more that the police need to do to me this is a question of events raised by this case we're talking about the prosecutor's duties and whether there should be more or more disclosure by the prosecutor in the context of giving a guilty plea but this case involves a liability on the part of the city for for a police off yes are not turning things over in time for the for the defendant to know that that that that evidence existed at the time that