defendant has pled guilty and so simply simply in this case mr alvarez pled guilty therefore there cannot be brady violation there's no underlying constitutional violation in this case and so therefore the city or impeachment type evidence brady type evidence to the prosecutors and i know that there are cases that go back and forth on s but in all the cases that the fifth circuit has taken this issue it is essentially a moonie type   that the that the police are not in the same position as the prosecutors to be able to evaluate whether a certain type of evidence is is inculpatory or impeachment evidence and so that the standard of fault in the in the context a finding a due process violation on the part of the the police investigators and gathering that the evidence and providing it to the prosecutors requires that there be a showing of deliberate concealment or some sort of intentional act and in this case the underlying officials who were also sued in their individual capacities were all found immune from suit on qualified immunity on the first prong of immunity because simply because they did not engage in any deliberate concealment and that that's from the chief on down those that judgment is a file judgment it wasn't appealed and so we've argued here that all of those determinations are arrested accountable why is it that the court that the district court would have held the city to a higher standard of not the the official and i committed a constitutional violation of the in the first place it would seem to me that that particular decision would carry over to the city if the standard of culpability is deliber  the jail officials for a copy of the video of this particular incident it's undisputed that he ever saw the video and it was never contested it was never contended that he was deliberately indifferent or that he had deliberately concealed the video from the prosecutor he simply did not look at it he didn't think a look at the video was there was a copy of it was burned from the server an hour but i mean  your are you the city that the fact that the young man played guilty that the guilty plea had a way of sort of disarray if you will whatever the other trial obligations might have been making sure that there is available evidence for the need for the judge or the jury however the fact finder may be to evaluate the evidence and they can make a fair go i mean actually i suppose in the case that we get is conditional guilty pleas all the time and i know that's not this appeal on brady so he peals the brain nobody at that point knows about you know the video etc just sort of the routine district court i mean it comes up here whatever based on what's there it's a firm right so it's later that this video you know emerges so to speak so would your argument be the same in the context where he did appeal if he lost because nobody knew know but now me we get routine you know people who plead guilty below and expressly in the agreement you know it says i reserve my right to appeal on a motion to suppress or whatever is left but reserving that does not minimize the guilty plea itself the rule of having colloquy it so that issue is just out there so what i mean and so in that instance if it came up nobody knew about the video as so you know it's just a firm gore people just says affirm and it's later you know the video comes out i'm just trying to get the full import of your argument about the power of the guilt well i don't know about that book well i'm asking counsel and i'm asking it purposely because the nature of the argument because what he's signing he's citing are cases that you and some other correct and that's a big difference if it is in the sense that it's a different cause of action but the constitutional rights violation is going to be the same regardless of whether it's a hey b s proceeding or whether it's a section nine hundred eighty three case where his convictions are already been set aside a fact in the astride a case in which a judge here was a member of the panel you did confront a situation like that where or where the where the date did conviction had been set aside and the and the in motion to suppress and others where people press them they plead guilty they say you know i'm pleading guilty but i'm fighting to the evidence and it does not negate the it's a hypothetical but it's not this case but i ask it because which took the jailer that jailers complaint and then brought to the prosecutor and there eventually was an indictment brought the other was the was the jail staff and they have an internal policy that if there's ever four she used and they do a use of force report it goes up the chain of command of the police or to the police chief the police chief would have reviewed that use of force report in his capacity as backstopping whether on his officials or using excessive force on jet on the of the detainees he wasn't backstopping whether or not the that the prosecutorial team that is the prosecutor or whatever police are working to to work up the criminal case had provided all the information so that the  brady obligations would be satisfied that that report came to the chief desk and as there is no evidence it's conceded that the chief never looked at it the fact that he didn't look at it i think is is of whether he was deliberately indifferent to not turning over brady material but there are other reasons too it's but it's my contention that that video does not contain brady material it's in call painting it's not exculpating when you look at all the footage of it  d and there's nothing to suggest in the use of force report that the criminal investigation team would not have obtained a copy of whatever information there wasn't provided to the prosecutor that the chief was not on on any kind of george on notice was a barely a ninth grade special education student at a local public school he was arrested for the mr meaner of by the appellants jailer the police department at that time then initiated a felony criminal assault charge there also creating a video that shows that he is actually innocent and they are in control of this video they're the ones that are in control of that her mental prosecution of the criminal case the charging of the case and they're also in control of the evidence which is an important distinction which i hope i will get into later the video was not turned over because everybody in the department every supervisor that testified said we are not supposed to hand it over we're not supposed to turn it into account i want to to tell you how to do your argument and i promise you we're familiar with the procedure history on the case so i don't you would not have enough time to make you know sort of the core points here given you know how it's how it's primed up you know who me you know w when it was disclosed sort of center the city's you know main or human is to say you know the guilty plea basically we say you don't have to answer that right at this moment but i just want to fast forward you a little bit out of the history of the case and get a cynic is a lot to cover and thank you for taking the issue i want to address the one that is more worrisome and which is the first one that the opposing counsel riis and this is basically whether in texas a police department can only withhold actual innocence evidence and where they can do that and where they should be allowed to escape all liability whenever the defendant please we believe that this circuit has not held that that is permissible now the reason that i want to address it in terms of the original case that this court decided back in two thousand matches versus johnson and all the cases that followed after that none of those cases have ever dealt number one with the issue of actual innocence this is the very first one in almost all of those cases as this court has noticed already noted the criminal defendant was coming to the fifth circuit asking that his plea be undone that he be allowed to adroit because it had not been done and that is an overwhelming burden in this case is the first one where the police has already been held to be pursuant to texas law to be in to be unconstitutional pursuant to texas law and because the texas court of criminal appeals found mr out of it is actually innocent already so this is the first time that this course this court is addressing that new issue so that's the very first decision i'd like to make in terms of why this case is different now the second one i touched upon a little bit also that all the other cases were rigged cases again this is not a rigged case this is a civil that the defendant in texas who please does not waive his right to brady evidence in fact even if it's not in the plea agreement the way texas law case texas law is the defendant still has that however in this case if it's the police agency that's holding the file if we apply that rationale to the police agencies the police departments will never know when cases are going to trial the prosecutor would so he would know in the hey i'm holding the seven so it's time for me to hand it over but if you buy that rationale that they don't have to turn it over immediately then that puts upon every police department in the entire state officers obligation to brady to turn the evidence in i don't think that the mere fact that he pled absolves them of their brady obligation would not be an inaccurate statement that would be a correct statement of the law that he does have the right to expose the tory brady evidence at the time of the plea not just impeachment because in texas innocence claim is in the in and of itself a constitutional violation as well so a freestanding actual innocence claim exists in texas based on the highest court in texas interpretation of the constitution so that's also another distinction that i mean that's not right not that it's not a federal not a right under the federal constitution is and i'm not for which side are you and i apologize but my understanding is that it did recognize a freestanding actual innocence claim but in the context of a death penalty case police also so that's not that is recognized constitutional claim in texas as well that he is the final policy maker for the city he's at miti that here it was the chief himself what knowledge is what i asked the policy the policy is to for all of the people that are involved in any internal investigation to never disclose evidence even if it's experts or even if it's brady evidence they are not to disclose it there's one exception to that and that here though it's even written in the past e mail that he has the responsibility to review all these records and developed a parent of practice in his deposition he admitted basically the twelve jailer stop videos that were there files that were there he had only seen two and a leave out of twelve or thirteen of those so he had a practice which he had no knowledge of basically never looking at the files of it even though that he knew that he was supposed to do that in case of a becomes possible so then he sets up a policy of not reviewing them and it's that policy that basically led to him not looking at these files and not looking at what was going on within his own department when asked if he had seen one of the basically unconstitutional basically means of the city's aware of the policy and aware that my way sions could occur just by the mere existence of the policy itself not here i think a policy that says do not  itself makes this policy unconstitutional on its face nonetheless here there is evidence of deliberate indifference in the fact that everybody was aware of these this is a policy and their failure to turn it over was basically acting in accordance with its policy when asked whiting to turn it over it's not because they say we've got or i lost it they've testified we don't turn it over because our policy says not to causation requirements different when it's the police chief involved when it's a policy maker that's involved here pursuant to the supreme court's decision board of count commissions versus brown were that the court basically say that we're the decision caused the violation was that of the final policy maker they no questions of four or cause a causation arise and that's exactly the case that we have here i think causation is established as a matter of law considering a right as it was not a nine hundred eighty three case but but but what kind of way does it holds there's no constitutional violation in order to receive reached recover damages under nine hundred eighty three there has to be an underlying constitutional violation so that would be my my response to that your honor very quickly on the on the issue of the liberty and difference there were so there was all kinds of remarks here about policies that anything that is is discovered through or through an internal review is forbidden to be turned over there's no evidence of that what we had here was a a a use of force report that was generated and he says there is a policy and then acknowledged policy that the chief says any kind of internal investigation that has briefing to what where he says that that exists and it doesn't there is no there's no written policy there's no actual policy there was some reference to the confidentiality of an internal affairs investigation which is begun when the when the when the when the ch officer as committed a policy violation it then goes over to internal of their affairs investigation and there is a confidentiality attached to that the or the the supervisor over and hit internal affairs investigation said if i name that the that the that the criminal prosecution team the c i dean group were not aware of some piece of evidence that we as our as i am i a officers discover we would let them know of the existence that this she testifies very clearly that the at the jail supervisor should have told the criminal investigation officer hey by the way we've got a video of this incident you want it but he thought well you know it's their job to ask for it if they want it so he didn't bother to mention it was that negligence on the part of the of the of the jail sergeant probably but the general surgeon is not part of the criminal investigation team need to be extent that there is some brady obligation it extends to the prosecutor arguably extends to police officers who are in close working relation with the prosecutor about what the case is about but this this court's cases have have referred  being attaching to a criminal investigation team it doesn't attach to the entire police department and so if somebody happens to be in the police department is aware of something that he that is charged with some absolute duty no fault they have to go over and turn it in to a to criminal investigator also i think it's important to note that at the time that this internal of this internal investigation this this and this administrative investigation that didn't make it into an ira file was going on there hadn't been an indictment there hadn't been charges that had been pressed it was there was it was a matter of two days after the this incident occurred the the jailer had had had called they call the patrol sergeant in a major report but the  the indictment in this case didn't even come down for another six weeks so do we even have a criminal case on bob i mean at what point is the brady obligation a ross there may not have been a criminal investigation so at the time it is at this report that the chief didn't see