indictment and ultimate six a trial in terminations for their employment from a arising out of essentially cold war stand and terminated testimony from the only victim and principal witness for the prosecution e jennifer smith and a mismatch between who was a principal witness and her ternium mary sharpe there was also a second event december twenty first two thousand and nine it was again it was a meeting between there are let me go back to the way you introduce the issue the issue is as you just described it was the claim against these police these prosecutors by the police is coerced testimony that what you said almost by definition then within the scope of absolute immunity even if the prosecutor is suggesting that the witness testify falsely as long as it's in connection with with preparing in our briefs and it's a fairly lengthy discussion concerning at what point the immunity attaches justice kilian is a concurring opinion stated pretty pretty simply is one of the reasons you nov twelfth it's seemed pretty clear that smith wasn't revisiting the question of whether the the sexual conduct was or wasn't consensual that something upon which he had gone clearly vacillated she she excepted that it was consensual her the focus of that interview on the twelfth was on exactly what they ended up being charged with a decision that had already been made to charge the judge again the now the information she received from the sheriff's department or sues me that the defense plaintiffs had received from chair support ms there was not going to be there was going to be no indictment when mary sharpe and mr mcqueen left  again it was part of investigatory team and we alleged that we allege is a conspiracy i don't want to keep taking up our time i don't see you even disputing in the in the briefs that the decision to present the case to the grand jury had well you know this was part of my duties as a advocate in the court to put split up or you can't do it as a witness but in here's again why i am confused judge kaufman's opinion says although the complaint acknowledges that the prosecutors had already made a decision to indict the plaintiffs by the time jennifer smith interviewed april mcqueen referring to the november twelfth one according to judge kaufman you conceded that in the complaint you want to read we could see did that they were that's what that's what they were say that was not probable cause it was not probable cause to indict and you can't begin the only information they had to indict but that's a different ok you're saying there's no absolute immunity if there's no probable cause so don't just bytes that just eliminates the but just eliminates immunity because you need the lack of probable cause for your underlying in connection with the indictment correct or indeed until the indictments another would you say that a prosecutor gets absolute immunity if they're preparing for the grand jury proceeding and in the grand jury indicts but they don't get it if they're preparing for the grand jury and the grand jury refuses to indict based on a lack of probable cause to die if it is that you're you know you are not if they indict based on a on to intimidation because it's looking back at what you've done it's it's the investigative the determining factor is the line between invest could invest to get turi and prosecutorial ok and you are are you disputing the fact and i think it's unclear to me whether you were just using the fact that they had the is smith decided before she brought the witness in that she was going to bring a case on these two issues based upon what she heard before it does or that was your first they were what they were going to be what that was their official position to they probably were going to indict they  advise miss mcqueen's was content to come and testify saying we're going to go for unless i talked to you and left with the impression that they were still doing investigation or you admit that if if they  discovery we believe the facts will show the decision was in to indict that was kind of bennett around was probably on this issue of the rape that she she had basically destroyed it it was at that point they were analyzing and that's it ok perhaps we might go for one of the claims you say that even obviously you listen to the tape of the interview on november twelfth it doesn't concern the question of whether she was or wasn't raped it concerns whether she was intimidated by the police officers it does there your honor it does there but there is also there's also interviews from the twenty first as well i mean the but this case turns on what happened in the november interview and me that the the meeting however we characterize authorities buckley's on a different page but i found buckley at least where you've cited it twice neither for the proposition that you're advancing so where what do you have a citation there as to what page in buckley  still feel the interviewer and what your support for that just the timing of your and what was said what was said to ms mcqueen to get her to come to the meeting what was said to her in the meeting the way she would the way she felt like she had been  what the complaining witness thought when she left an interview as opposed to what actually occurred during the interview to determine whether that was improper conduct by a prosecutor occurring during an investigative stage so they don't thought when she left the interview or that's what her attorney thought when she left the inner well no you and i are we just looking at what happened during the interview well because what what we have to judge the simple evidence the only real evidence we have other those statements or of the defendant saying we were going to indict this day ok this is we have made the final decision we don't and that's we don't believe you which you conceded so we can judge we can see that they announced they were going to do it we don't we think they were still in the investigative process and it because of the nature of that if you look at the nature of that bring in the indictment on witness tampering in a solved the car in and they tell or i thought they said and correct me if i'm wrong that we're going to do it with or without you you're saying that they if you don't come in we're going to do it without you if you don't come in we're going to what if you don't if you don't come interview us we'll do it with or without you if you don't come in ok but to say it's one thing to say if you don't come in we're go do it without you it's something else to say we want to say come in because we're going to do it with or without you i don't understand that if you don't come in what about that statement implies that if he does come in they're not going to do it because she was she made a very clear that she did not feel that they were she was being intimidated she'd made to not feel that she had been threatened right but she said a lot of things at various times and so you made the point that without this witness they then have anything but that's what prosecutors do they should prepare witnesses and the law says that they have immunity even if they strong arm witnesses other things is possible but in this case the only because of the alleged because of it's a he said she said situation that they're always investigating because there's a possibility they may change their mind about prosecuting based on what somebody said and just investigation is that right i'm not sure again i'm not sure followed i was thinking something else what i glean from what your argument is is that when it's a he said she said situation so in other words there isn't any other evidence cooperating evidence about in this case intimidation it's a question of whether she's going to testify to it or not because they've already made the decision to indict but you say they were still investigating that means that because they the grand jury then decides to indict or whether the whether they think they have probable cause if there is probable cause these visas these and so the question please is the probable cause determination that you're pointing us to the fact of the indictment or no true bill or is that the subjective opinion of the prosecutor at a given point whether they think they've got probable cause probably subjective however your honor that would be in in this kind of context that would be subject to a jury would have to review that simply because if you if you understand in the whole immunity world there is no such thing as a subjective test if you want to test for absolute immunity it's a jet give test for qualifying your id issue the issue here is that if this these people were truly intimidated or threatened this witness then there was probable cause to arrest them and no one arrested them as we make clear and is this was related to a political issue that a two weeks before  political ally the prosecutors had gone public seeing these this woman had been coerced into sex that they were you know that was what the that was what the nature of it was there was no probable cause to indict these individuals after she had testified to the grand jury twice and after she testified to the grand jury that she was beat without her consent and she was forced to drink urine without her consent and after she testified to the grand jury that she felt threatened by the police his sole involvement with april mcqueen and he is entitled to absolute immunity for his conduct going forward judge kaufman correctly found that there is no allegation that david smith was involved in this november meeting because he wasn't there is no allegation that he is somehow responsible for jennifer smith's car because he's not there is no allegation a supervisor liability there is no allegation that he they dismissed their official claims against david smith below he was only sued as in his individual capacity they don't have a claim against david for anything other than what happened after the grand jury had convened and after he eyeball a witness which is what prosecutors are supposed to do i would posit th prosecutors that don't talk to witnesses might not be complying with the duties they owe to their office and to the commonwealth you have witnesses who changed their story this case is a perfect example of that and prosecutors are entitled to talk to them about their changing story prosecutors are entitled and i would say obligated to remind witnesses who stories change careful you might be engaging in perjury which is what he did on december twenty first as alleged in the complaint now we've heard quite a bit this morning about probable cause let's not forget that there is an indictment for assault apra mcqueen went to the sheriff's department on october twenty seventh and said the assault was not consensual and i was first to drink their urine that's in the record eleven that two that's what she told the police that's probable cause that they could have arrested at that time but they did not if it was political i suppose they could arrest at that time i would say that they gauged a fair amount of discretion here they were out here to present her case several times to the grand jury they read a letter from her moyer into the grand jury they've been over backwards to present all this information to the grand jury they could if they could have arrested them first salt at the very beginning her story changed the next day when the police brought her to the sheriff's department and mr rogers it's in the record said yeah we could probably be in trouble for intimidating witnesses they could have arrested the most of the argument as i think i understand it is that when you're evaluating the functional approach of a prosecutor you also look to see whether the prosecutor had probable cause at that time i think that it is or it if you find any authority for that i have not your own and it's you it's you raise an interesting point it is unclear to me from the briefs that i read and from the argument that i heard what complaint the  have with respect to judge kaufman drooling on absolute immunity which is the only issue related they've it's meant we heard a lot about what happened in november but i didn't hear anything about the judge kaufman was wrong with respect to her decision as to what happened on december twenty first in fact their brief doesn't say that her decision was wrong they just say that they were entitled to some discovery and if you has said then in terms of the munity in cases involving immunity you can avoid a ruling on the issue of and immunity once it's raised you have to address it right away and you address it right away so that you don't complaint twenty first after she had testified have to preach but not before we don't usually do this but perhaps with the indulgence of the panel we can clear this up are you appealing the deny the grant of absolute immunity to david smith for what he did and on december twenty first judge kaufman's grant of absolute immunity to david smith for what he did on december twenty first yes and where do we find that in the pleadings oh you'd be thinking about that for a church ok all right you're still up but your time's up i'm still here still in the case apparently but your time is up i'm still on the case my time's up then one thing i wanted to say if i could have your the courts indulgent purchase a few seconds we heard a little bit about discovering the case law from the united states supreme court in the six circuit is clear in cases of absolute qualifying meaning you don't get discovery here we have a substantial factual record  limited discovery in connection with qualified immunity insofar as it goes to the issues attendant to qualify to me and you have to raise a problem at a time and then you have to raise it appropriately and i would contend that if you look at the grant v lisi pat i'm here to present the argument on behalf of jefferson and i'm going to focus on the november twelfth two thousand and nine incident the first thing that i will say is that the complaint did a ege and the response to the motion to dismiss allege that the decision to indict had been made at page id four zero one and four o two which is their response to our motion to dismiss they state defend jennifer smith went to mr queen to contact her because she was going to present a case to the madison county grand jury with or without miss mclean that's the appellant's family so that if she was conceded in the low there was no attempt to create any nuance in that representation like has been done today so that was conceded second i think probable cause existed as a matter of law when that meeting took place because of the conflicting statements that we had from miss mcqueen to the sheriff's office on october twenty seventh and october twenty eighth let's stop back to drop back just so we don't get to a meshed in the facts of this case and lose sight of the bigger picture here let's assume for a second that the decision to indict had not yet been made but the decision to present to the grand jury had clearly been made that's what you just assume that person would the preparation of a witness in connection with their upcoming grand jury testimony be investigative or prosecutorial it would be acting as an advocate that's what the supreme court has said preparation for initiation of proceedings including preparation for presentation at trial before a grand jury right now how do we determine whether what was occurring on the twelve was in connection with just simply trying to figure out what happened here the words investigative versus preparing for the witnesses grand jury testimony i think that we look at it in terms of the way the appellants have characterized what occurred and the way the appellant's characterize what occurred is that the prosecutor in this case miss smith was meeting with miss mcqueen and her lawyer in an attempt coerce her to harass her into testifying based on her first version of what occurred as opposed to her second version of what occurred that is essentially what they claim and if you add in other words they were trying to coerce testimony as opposed to investigative is the way you would characterize it i accept what they say as as the way the court has to view it here and if you are trying to coerce testimony you are doing what buckley said you are have it's an out of court effort to control a witness is a grand jury testimony and that is advocacy and interestingly enough while mr horan seems to be basing a lot of his case on buckley buckley seems to say you get absolute immunity we believe that it does buckley says the decision to seek an indictment the decision to present to a grand jury is an advocacy function whether or not probable cause exists that's what buckley says so do you what do you have a reply to the argument he's making that's not in his brief about what justice scalia apparently also said in buckley that i do not have and for the language that he references is in buckley that before there is probable cause a prosecutor shouldn't consider themselves to be an advocate but what is also in buckley is an explanation of that that says the decision to indict is absolute immunity and abacuses function whether or not probable cause exists and those two things do conflict to some extent this court there's an unpublished opinion called drake versus howell and it's four sixty three federal convicts five twenty three it's a two thousand and twelve six circuit case and it notes that issue and it talks about the buckley footnote that makes clear that it's an advocacy function when you make the decision to bring charges to a grand jury regardless of whether there's probable cause so i don't think this idea of is there probable cause or has there not probable cause necessarily the dividing line in the saying and if they present it regardless of that fact is justice scalia writing for the majority and what he said yes that that language appears in the majority opinion but i think that probable cause does exist based on these conflicting statements and it's not just mr mcqueen who on the first day said it was consensual except for these two very specific acts i point blank said no i was very vocal i didn't want to do that and then the statement the next day where she's brought back by the police and says i want to tell you today that everything was consensual including those two acts on top of that we have officer rogers who gave a statement that day who admitted that his actions in bringing her back down there to give another statement could be considered intimidation of a witness so based on the jurors is the guy that's dropped out because he's in prison on a child pornography church that's correct you just can't make this stuff up that's correct so by his own words he admitted that their actions and what they did by bringing her back down there could be viewed as intimidating a witness i think if if you're going to cast this as not an advocacy function and i think that it is regardless of whether or not you are coercing a witness to give testimony before a grand jury that's advocacy whether or not you're preparing to present testimony to a grand jury that's advocacy if you're going to call this investigatory i think you have to characterize this as a meeting without probable cause during the investigatory stage of the case in order to manufacture evidence of probable cause that's really what they're claiming that's what they have to show  for the court to believe this was in an investigatory capacity and we know that basic argument is that even if probable cause is a factor there was abundant evidence of probable cause whether the jury would you look at those cases where you have a prosecutor who doesn't have any evidence who goes out and finds a witness to give false testimony there are a couple things involved there it's a does a true manufacture of evidence the fact of that manufacturing is withheld it's a secret from the defendant and then the defendant is convicted on that and then sometime later they find out what occurred here nothing had to be created because she was already on record as having given one statement and then a different one two nothing was secret about this she prep she came to the meeting with an attorney mary sharp an attorney who she said was hired for her by these richmond police officers the richmond police officers own attorney drove them to the meeting with miss smith there's nothing about this that was a secret in fact that meeting was played to the jury there was a lot of discussion about these meetings with the prosecutors and in fact these police officers used it as their defense their defense that she was lying when she said she didn't want us to beat her and she didn't want us to urinate on her she was lying because she was intimidated so that is just not a reasonable argument that's the only way you get to qualified immunity is if you believe this was in the investigat capacity and it was to manufacture evidence of probable cause and even if you get there they still lose because there is no fourth amendment seizure there is no fifth or fourteenth amendment deprivation of life liberty or property there was no arrest there was no incarceration there was no conviction and if i could not to contradict my codefendant but these are felonies and so under our civil rules a felony can be charged in circuit court only by return of an indictment so that was the process to go through for these intimidating a witness that's a felony you can't just arrest and bring those charges in the circuit court you have to do that by indictment which is what was done here but because there was no never an arrest never incarceration and never a conviction there's no violation of a constitutional right liberty deprivation has to be coupled with a lack of due process and this case lexx that that they declined to do that in the albright case because as we know you don't have a constitutional right that only guilty people will be arrested or charged with crimes and if i may make one final point of completely failed as a time people today we have also appealed the district court's decision with respect to the attorneys fees there is a fee shifting provision in section one nine hundred eighty eight it allows the prevailing defendant to get fees if claims are frivolous unreasonable or without foundation and here these claims were frivolous and recently without foundation for a couple of reasons one the supreme court hundred seventy six when they first spoke on this issue of absolute immunity said the decision to institute criminal proceedings as protected by absolute immunity to probable cause existed as a matter of law as we talked about today and three there was never a liberty violation because they were never arrested incarcerated or quit and he brings up this idea that they lost their jobs that was never argued below it's factually incorrect and legally incorrect and these folks have real attorneys fees that we estimated to the district court of in the mid eighty's some eighty five thousand dollars to most extent they personally incurred those and that shouldn't happen they shouldn't have to defend against and frivolous and unreasonable case employer talks about public prosecutors having to do their job with courage that we want them to exercise their best judgment and the public trust w suffer if their decisions are constrained by worry about these kinds of cases to enforce that in to recognize that this was frivolous from the beginning we would ask the court to reverse that decision we had extraordinary circumstances and you know i don't i've never prosecuted or been a prosecutor i do or thought of striking of any witness would ever go to a go to the state police before the indictment was actually came out judge when in an interview with it with a kid like state police saying she felt she was being intimidated by law enforcement prosecutors she testified under oath at her trial that she committed perjury because of the the imitation of coercion  clearly at the claims were not for us judge albright your honour's all right in that particular case if the court made it it was an interesting observation that because he was not it wasn't seized but there was a fourth amendment claim as we point out pretty clear in the briefs that we made a claim under the the fourth the fifth and the fourteenth amendment they just sort of stated we did not raise the claims that he have any authority that says under the fifth and the fourteenth amendment it's  and do you have cases that say that what happened here was a violation of the fifth and the fourteenth amendment yes sure and what case should we look at for that which is are cited pretty extensively in brief albright actually discusses that