expertise as a dog's not yes sure but the reason i believe it's important is that at the same plaintiff's counsel in all three cases with the same experts in all three cases are concerning attacking my client regarding the dogs texas it had been your honor up until around the year two thousand and eleven it had been discredited but even the texas court of criminal appeals did not say it was junk science in the in the reverse and megan winfried said it's only supported and the reason it supported for instance in this particular case of megan winfrey had never known mr burke who was murdered then it would have been an issue because why was your sent found on him but in this particular case one good v curtis clearly established that it is unconstitutional to deliberately create a scientifically an accurate lineup report you know you are at the specifically what curtis stated in reviewing the evidence incrementally are they could have been arrested charged and indicted regardless that's not an answer to the question about whether it's that's about the harm to those particular people and but that's not an issue of whether it's a clearly established law that you can't do this and that was the question so can you answer that question please sir i don't think it's clearly established that  create a scientifically inaccurate lineup report that that's against the const you would be hearing that there are several things several layers in the clearly established part is the part i'm talking about and we're the clearly established it has never been clearly established that it was junk science they looked in curtis they looked at the experts that they had against pike it and they looked at the tape and they said it was uncertain and that's why he was granted qualified immunity if it were scientifically and accurate so it would be against constitutional law to create a test that was designed to have incurred in this case is right on point with curtis because it's the exact same evidence it's looking at him doing mike my client pike it doing that the scent lineups there are experts saying that he's basically trying to go into his mind saying killing the dog and the court said it doesn't matter because based on the evidence you still would have been indicted and convicted and in this case under megan winfrey she still would have been indicted let's look at the time frame i think it's very important in this case because i was going to mention before that i was involved in all three of these to a lesser extent the other two but the dog scent lineup was started in the august and only his only involvement was august twenty fourth of two thousand and four and megan was indicted and arrested in march twenty seventh of two thousand and seven two years and seven months later my client did this dog because the rangers asked him to do it he did it two years and seven months go by and he had no further participation with regard to megan winfrey you have to have an injury yes but if you car is no injury she suffered no injury as a result of this particular one yes you are she did not suffer into because of mike what my client did on the dog scent line if in fact it's a proven fact because she testified that she knew she knew not only knew him but two weeks to four months prior she had been in and seen him it at his house i don't understand that argument at all and it's throughout your brief the fact that winfrey had been it burrs house weeks before the murder was  tracked at the time of the scent lineup i don't believe and that's the relevant timeframe not whether it tried to the time of trial it was known that she had been there when i mean my client didn't know anything about this case period that's all he's saying that there was some sort there's already a fact issue on whether or not it was the lead in coached why isn't there a fact issue on whether it was coached because curtis the answer is exactly the the texas court of criminal appeal which is our capacity like a supreme court of the criminal side we have a dual system that says and before it got to that the court of appeals looked at this case from  sufficiency of the evidence standpoint and it said ok the dog scent evidence is supportive but it can never be it can never beit be based on a conviction so we're going to edge that out when i can consider it and we're going to consider all the other evidence  keep coming to keep coming to america the texas court of criminal appeals pointed out six very specific instances of what side the dog incident the dog scent evidence why there was enough although the specifically cart it out looked at all the other evidence outside of the dog sniffing evidence and said there is enough evidence beyond a reasonable doubt and affirmed the conviction it wasn't of a court of criminal but you don't even tell you whether it supported the jury's decision to the fact that you can carve it out and still get enough on doing a sufficiency analysis doesn't tell you that it wasn't a factor in the conviction but it would say that without it you still would have had the conviction and that's all i'm saying said we're trying to cites causation and that's a matter for the jury and then we don't even have jurisdiction on causation because the issue is whether or not there's a material we can only if determine if there's a fact she on the on whether or not he manipulated the docs and but as to the dogs it's not that it's from a sufficiency of the evidence standpoint it's not determinative as this court held in curtis it apology regarding bite marks on a murder case where individuals were convicted convictions were subsequently overturned and they were sued based on their testifying as to these bite marks which were somewhat determined to be questionable this does type of the bite marks and that kid the fifth circuit in the june twenty seventh of this year held that they were entitled to qualified immunity as expert witnesses so as i understand your argument that with regard to the dog scent lineup itself your client didn't know it was junk science at the time you conducted this so he gets qualified immunity on that but then we got the cue of the argument that he intentionally cued the dogs and so the trial court deny qualified immunity on that aspect of it why do you win here on that richard sr the father gives all this information he that's what spurred this investigation in the beginning and then there megan's own issues of as soon as she found out there was a hair trace found she went and sha herself and they had a hard time getting him didn't give a subpoena for that she went to her boyfriend tried to come up with an alibi and the boyfriend that she was currently with at the time the trial came out and when it did she was with during the time of this murder in two thousand and four came all the way from the dog sent evidence proved a known fact because of the fact that she's in it was a very it was it proved out that he wasn't fabricating in my pinion he wasn't fabricating the dog's record but he didn't it wasn't known at the time ok she was arrested as a result of the docs nephites recall the defendant johnson had said in a previous arrest that was the basis of her arrest actually well but he said it was the drug trial and campbell so he said it was a drop charley and campbell  murder she was sixteen she was sixteen in which she was seventeen in two thousand and four what are the facts on the record regarding her her presence in the byrd residence what she testif did not establish a time frame for that no and you're saying that but then the argument that mr pearl raises you know so that they did a dog sniff and all it did was prove up that she was in the house and she herself admits she was not so i mean how the statement that it was the dog trail and the jailhouse snitch that led to getting procuring the arrest warrant i mean at that point in time  all we know is that she had visited the house previously correct right and then the dog sniffed established that the argument about that she was in the residence at the day of the murder i it is that what they relied upon to get to the to the search warrant or was it just the fact that she hadn't previously visited the home oh ok so there was nothing in the search warrant about whether evidence fabricated evidence was used to try to establish direct contact between the winfrey's and mary burke on the day that he died he is not contesting that that is in fact what his evidence was used to do but his own testimony at trial shows that he tried very hard to bolster the prosecution's case by saying that there had to have been pretty close contact he can deny that now but this is a dispute a fact which this court has no drawing important and experience these dogs alerted to making winfrey sent is that correct yes and they alerted to richard when preaching or sent yes and richard winfrey sr sent correct and in short what that tells us is that they had contact with the clothing yes their scent was on the clothing correct correct i mean that's what he said and then on cross examination winfrey's counsel did try to you know show that there was a less direct contact but he repeatedly was dismissive of that and there's places that we directly quote in our brief where he says you know that that it would have had to been very recent contact and he was dismissive of the idea that there could have been sent transfer so you know at this point in this litigation he's trying to say that his testimony had no effect on his conviction but a reasonable jury could certainly find that it's a good one where the i'm sorry so in the testimony before tried to place it right at the time of the incident and said oh anything farther and now they're trying to say oh well it's really about two weeks ago and that's and said it wasn't really trying to place him near the time of the incident i guess a sort of a friendly question am i correct that that's what the testimony is right and so he is trying to push the jury to believe that he was she was in the place at the temporal time of the death which is very important right now one of the one of the argument we're hearing that ok now we realize that this is sort of junk science of not actual junk science but at the time i did this line back in two thousand and four i didn't know it was junk science and i didn't create junk science knowingly why doesn't that it tells you the answer we don't have to have a fact issue this doesn't tell you the answer of whether he's sabotaging the process or not interview of steven nicely and the video  together i mean you can look at it yourselves they sure seem to show it killing the dogs or you know doing things to the dogs and it's a question of fact which this court doesn't have jurisdiction to consider ok you need to address in some more detail his argument that well there's lots of other reasons for probable cause here just as it was in curtis you said the curse is different and there was more there were more facts there but he says there's many facts here is there were there and cause question for the fourth amendment the warrant you have the record you have it in the record one arrest warrant and the stuff in the arrest warrant was was basically that you know you had campbell statements warrant without without the falsehoods opposing counsel says that well we don't just have he's not just testing the fourth amendment to doing the the due process case the fourteenth amendment claim and he says well the fact that they didn't use it to an analyze whether or not the conviction should be upheld that that that shows that there was other evidence significant evidence in the record and get you know there's the stuff goes in the warrant at the time of arrest and then there's what was what was presented at trial meghan's trial and what you had at meghan's trial was pike it testifying about the scent lineups you had david campbell testifying and by the way david camm was testimony at the trial was that everything he heard from richard winfrey sr was hearsay that he had nothing on megan winfrey he had never had any conversation with her and he was stepping back from what he had you know what apparently johnson had thought that or had indicated that he had said and in fact he even said campbell testified at meghan's trial not only that it was hearsay but that everything was staged that johnson tried to get him to say stuff that was untrue that he tried to manipulate the statements of that i was the testimony at trial and so when it comes down to what led to make and conviction pikelets said lineups work strongly important and although it wasn't discussed in this particular opinion in richard winfrey seniors trial if you look at the texas court of criminal appeals decision in his case and in his case it was very similar evidence was the same people testified pica campbell jason king the jury in in the father's case came back with a question during deliberations saying can we convict solely based on the dark steps i mean that's that was in his trial not meghan's but it's indicative of the fact that pike it's testimony was key to make a conviction we did the would basically the basis of the conviction and you can't have a conviction based solely on the ok thank you very much we have  i'd like to go over those six factors that both the court of appeals opinion in the texas supreme court wrote about in their opinion one was that winfrey believed that burr the murder victim had money and she wanted it number two w completely jail cell mate which campbell who turned out to be the confidential informant about the murder gave specific facts about the multiple stabbing and gruesomeness of the of the murder and did guns have been taken as a result of the murder now the law enforcement officers didn't even know that there were guns when they started investigating the case when they asked family members they found out that that was true that there had been guns stolen as a result of the murder three when morgan when megan learned that her brother had been arrested she asked her current boyfriend jason king to take her to her ex husband's house chris hammond she two hours she's sixty yes take her to her ex husband child yes ro  he's moving fast to discuss an alibi and that was true directly by by jason came after chris hammond was subpoenaed that's the ex husband megan called his mother to find out what he was going to testify to five when meghan learned that pubic hair at them found at the crime scene she shaved off her pubic hair to prevent a sample being taken and six megan told her boyfriend jason king that she went to  because he was an easy lick those are the six enumerated factors in the court of appeals opinion and they said the first at the court of appeals that was sufficient to convict beyond a reasonable doubt the texas court of criminal appeals acknowledged the six factors but they said after carving out the the other evidence which can only be supported that it was not enough for a conviction beyond a reasonable doubt in that specific regard we have two courts of appeals with different opinions and i would argue that that is a stablished law issue under the qualified immunity defense they could not even agree as to the the necessity of this this evidence but yet that was beyond a reasonable doubt and all i need for my defense is probable cause number one and two i believe the critics of the anthonys dispositive with this case your honor is because we're dealing with it videotape this case has a videotape curtis anthony had a videotape i don't understand how that gets you anywhere the videotape doesn't help your client it's not conclusive and in fact the other side thinks it's better for their case so i don't understand what the videotape how that destroys the fact issue i could did manipulate or misrepresent the results which is uncertain appellants were not increment incrementally harm they could have been arrested charged and indicted regardless in this case megan winfrey could have been charged in the guided and tried regardless reasonable doubt in the other one said you didn't but i think that in titles my client a qualified immunity because there was no constitutional violation and i asked you to reverse the trial court and affirm like clients entitle me to qualified immunity thank you