it please the court my name is john burgess and i represent the appellant in this matter christopher scott peterson in this case pelley porter the tilma county district attorney is advocating for precisely the position that was rejected in buckley namely the fact that peterson was eventually indicted by a grand jury somehow retroactively transforms his pre meaning porter's pre invasion and conduct into advocacy this was the argument advanced by the prosecutor and buckley almost identically but the court held the high court held that prior to the indictment the a prosecutor is not acting as an advocate this is because absolute immunity is only narrowly justified for  associated that's the court's term with the judicial process pre indictment there is no judicial process to be intimately associated with and therefore absolute immunity does not attach and qualified immunity is the proper standard so i'm sorry can you  your position is that mr porter engage in some sort of pre diabetic scott yes ok can you tell me what that was and cite to the record where i would find it yes so prior to the indictment which was former brother in law i believe that at the time he was still his brother in law but now it's no longer the brother in law but we can look at the record in any event the use he testified in his deposition both of them that they were close friends and were routinely had family gatherings and dinners together this is dolan and porter they met they had never done this before mr porter met with dolan where dolan asked mr porter to bring criminal charges against relate to it st of all mr porter had never met with mr dolan concerning bring in criminal charges against anyone before mr porter has never brought a criminal charge of theft against any person based on where there was an absence of a underlying police investigation and make it different even you know if they recall they took this to a grand jury yes it was taken to a grand jury right does it how does but do you is that one of the is that one of the wrong doings of the prosecutor it's one of the wrongdoings of mr teed or dr t brother but it is not we don't have any evidence that at the time porter knew the facts were untrue but the evidence in its totality suggests i might give much in to you was did the prosecutor knowingly present faults evidence to the grand jury i don't know the answer to that question no so the answer's effectively no ok so what else in answer to judge were just as question what else did the prosecutor do before charges were were filed that you allege was more in the nature of an investigative kind of role as opposed to a prosecutorial so we should be clear about one thing which is that prior to the attachment o probable cause at the grand jury or pre indictment buckley and all gensler and milstein the th circuit cases make clear prior to the attachment of probable cause through a grand jury proceeding there can be no advocacy activity by a prosecutor because there is no case in which they could be bringing in which they could be acting as a prosecutor so quite definition they are acting as an investigator i understand that but can you can you the question is he received a complaint from an individual he reviewed documents he interviewed a witness he impaneled a grand jury he appeared of at the grand jury with a witness that he had met with and then the grand jury reached its conclusion so all of those things occurred prior to the attachment of probable cause under buckley so all of that conduct is inherently investigative in nature by definition so the question then is what of that activity is violates is misconduct i don't think that's not the standard question is whether it's malicious prosecution that's the question and so has to be violates the constitution in that process he somehow or other deprived right so the question is is did he engage in malicious prosecution in the th circuit you adopt the malicious prosecution standard of the state in which the court sets the this case it's oregon malicious prosecution has five elements one of them is malice one is lack of probable cause so in this case he met with an individual he knew well he received a complaint where there was virtually no evidence he interviewed that witness he decided to bring forth an investigation essential as the circumstantial evidence suggests and a jury could conclude as a favor to his friend and brother in law and not based on the merits of the case which is what is required sorry i'm sorry  well so that's his testimony is that he said that but he actually presented no evidence to the grand jury concerning c l downing so that's the witness that you're referring to you about that he's right t well and also to be clear in the deposition of mr porter he could not identify any similarities of conduct between the complaint relating to ms downing and the complaint in this case so it's not just because a another citizen complained about him does not somehow give rise to probable cause that he had committed faffed aggravated theft in the st degree so the issue here is that he had no evidence was the fifty thousand dollars check which hadn't been accounted for and then there's an overall amount that was awarded in the arbitration award but in any event what about one hundred and seventy thousand dollars would that was the arbitration award ok and didn't porter have that information as well yes the arbitrator's decision yes that was part of the packet of documents that was provided to him we should be clear that not every told or the arbitration what he needed what information you need to provide any fail to provide that to the arbitrator yes when mr peterson appearing pro se at the c c p arbitration failed to provide the accounting he lost the arbitration so that that's a true statement but again in order to keep there is no dispute that mr peterson was provided the money willingly by dr t so then the question is in order to be guilty of aggravated theft there would have to be some evidence that he either intended to deceive him do all this work and then or get the money for the work and the not do it right that would be theft by deception or that he knew that he was not entitled to the money and kept it anyway there was literally zero evidence either at the c c p arbitration or in this case presented by either defendant that even touches on the subject of mr peterson's intent and they never looked for it lekas they didn't care about it to begin with what is there a standard that the da must meet to take the case to a grand jury well in an investigative function they could simply won't go to the grand jury with the purpose of of conducting an investigation so they you know which point they would need probable cause what the actual criminal requirement of bringing it to a grand jury i don't know the answer the question but in this is it but you don't you don't point to any evidence that in the still calls investigat allegedly get some witness to tell a different story or to fabricate a story or anything like that no well and that isn't necessarily required so for example you're still but  most of these cases there's a claim of false evidence right so i think that this is analogous to a case like milstein for example so or so in buckley the question was about shopping around for an expert so in that case they weren't actually like fabricating you know a boot print the boot print existed they looked for an expert that they knew would basically tell them what they wanted to hear so in that case they were essentially they had the conclusion st and then they were moving forward with the investigation regardless of the  e this is actually analogous to that he knew that that wasn't the case and i'm sorry ok i understand your point i'll give you a minute for it but let it go over immunity for the decision to bring an indictment whether the prosecutor has probably caused or not hear the mr porter reviewed evidence and  grand jury that is all purely prosecutorial what's not and he didn't do any an independent investigation of his own get go out looking for but pretty experts he didn't in some commentary phase of the investigation go you know marching off in telling people trying to suborn perjury for potential witnesses he's his role was purely passive what if he's doing it as a favor to his brother in law former brother in law don't you see what he was doing as a favor in that in that county is in the mid double digits at best and it's not at all surprising that there were some relationship between between two attorneys in town and i don't see why that matters courts or as here grand juries and that's all get here there's no claim there's any fault evidence here is there false evidence or you know that he knew that any of the material that he is that a prosecutor can do corrupt things and still yet be immune from prosecution there's but there's no evidence of that here i mean and i think one thing that's really critical in this sort of investigation versus board investigation construction contractor supported taken evidence from the numerous sworn after money from numerous witnesses reviewed hundreds of exhibits and concluded that among good morning jay beatty appearing for dr ronald tede the court granted summary judgment on two grounds dismissed the malicious prosecution claim because there was no evidence that dr t d initiated the criminal prosecution and there was no evidence that he lacked probable cause in continuing or initiating a criminal prosecution if indeed he did the oregon case lies abundantly clear that a crime victim doesn't initiate a crime criminal prosecution by simply complaining to a da and then that da later presents the case to a grand jury and the grand jury returns an indictment the legal presumption is that the da has discretion to prosecute and that the da is the party initiating the prosecution and not the complaining victim and to quote from humbert versus knutson the exercise of the officers discretion makes the initiation of the prosecution his own and protects from liability the person who's information or accusation has led the officer to initiate the proceedings that's the law in oregon there is of course an exception to that law where a party procures the prosecution of a claim  by essentially depriving the district attorney of his or her discretion to exercise an intelligent decision as to whether to prosecute and that occurs when they're under the influence or w complaining crime victim lives and knowingly lies and basically compels the district attorney to pursue the claim there's no evidence of that occurring here there's no evidence that dr t unduly influenced  mr porter there is no evidence that he lied to mr porter in any way that was a determining factor in his decision to bring the prosecution in this case what dr teed knew at the time that he met with mr porter was that he had presented a case for two days the construction contractors board and the construction contractors board had determined among other things that in february of two thousand and nine he paid fifty thousand dollars for which he received no credit or value so the takeaway for dr cheat at the time that he met with mr porter was he'd been ripped off he'd been ripped off to the tune of fifty one thousand dollars now he thought that he'd also been ripped off in various other ways he had a house that  leased to him looked like it had been gutted and he got nothing the only thing that had been completed in his estimation was uganda ground portion of the septic system which hadn't even been connected so to him he had paid three hundred thousand dollars for  disagree right there riggers it there was work right the arbitrator ultimately disagreed with him in some respects and said listen you got value in these ways you do have a completed underground septic system even though it's not hooked to anything so the arbitrator just didn't accept what he had to say wholesale he listened to five witnesses total including dr t d this occurred over a two day period there were over two hundred dollars pages of of testimony and exhibits or of exhibits that had been supplied this procedure also allowed the parties to cross examine each other too so mr peterson had the opportunity to cross examine dr t vice versa so there was a quite developed procedure that occurred criminal trial there was a single e mail that was exchanged between the district attorney who is in charge of the prosecution and dr teach wife there's no evidence that there was even a response to it and there's certainly no evidence that dr pushing the prosecution in the oregon case law is clear that simply appearing at a criminal trial and giving testimony doesn't constitute the continuation of the criminal prosecution there really at basis no initiated this criminal prosecution and briefly there is abundant probable cause had he indeed brought this prosecution probable cause being a two day hearing that resulted in a determination by a construction contractors board arbitrator that he'd been ripped off to the tune of fifty thousand he paid a check in february of two thousand and nine for fifty thousand didn't show up on the books he didn't receive anything for it that was conclusive it was reduced to a judgment as between dr teeth and dr peterson that issue preclusion so there's no evidence that he did not believe that he'd been ripped off and in fact there's no objective basis for him not to believe he hadn't been ripped off no evidence in this case that he was aware of any sort of can contradictory evidence that indicated that there had been no theft thank you ok thank you if you be a minute for rebuttal thank you i'd like to address what counts mr ford indicated so i think the st thing to say that all of the cases that are controlling on this subject have made it clear that simply because reviewing evidence is something that prosecutors in fact do that better than render every time a prosecutor reviews evidence to mean that they are doing the act of a prosecutor in fact that argument was specifically made and rejected in buckley it has been routinely reaffirmed in subsequent cases in this circuit is just simply untrue as to the state of the law they're not purely prosecutorial the police routinely receive complaints from witnesses interview witnesses review documents and assess them whether or not they could potentially give rise to criminal liability that the police routinely do that or harm the police for there's no requirement but i think that what what is the reason why it's relevant in this case is that when you take all of the facts together the question here is whether a jury could believe that mr porter brought the case as a favor to his friend and not based on the merits of the case prior to the attachment of probable cause about more cows than people but the fact is is that dolan testified that he had never done it before they both have been attorneys for twenty five years in the same county they've never done it before and porter testified that he had never brought a criminal charge without there being an underlying criminal investigation thank you thank you thank you counsel the matter submitted at this time