next case this morning is henderson versus will keep court after this court remitted detective henderson's case for trial based on a finding that there were circumstances and comments made by chief mark that might lead a jury to find that the detective's non selection was discriminatory the parties agreed to have the case heard by a magistrate judge and the trial  defendant moved to exclude nearly all of the evidence that this court thought might allow a jury to find bias in the decisionmaking process the court granted the me company reversed a judge's decision where there was a blanket ban on evidence of discrimination that this court found was negligible in this situation the evidence that was barred by the judge was substantial because of the bar the defendant was able to simply argue this was chief march's st selection and he went off the score sheets and picked the highest court the evidence that we were going to present would have undercut that defense we would have been able to show that chief marshal fact didn't always pick the high score contrary to his testimony sometimes there was no score at all shortly six with no competition at all were not able to present that evidence to one of the things that this court looked at henri man was the situation of an officer named benjamin levy who was accused of harassing  a woman who came to visit visit the kerry colby disliked he was also accused of harassing and employing in fact stalking her other response by chief mark to those events was drastically different we even though  said that was something that could be evidence of bias the magistrate judge excluded it another issue was the fact that there were no supervisory no african american officers with supervisory authority we were not able to present evidence on that either so what what the defendant was able to do was argue this is a very simple case there is no evidence of bias and because all we could show was that carrie colby was a bad choice and we couldn't show why that bad choice was made to find it was able to argue that because of jury instruction three point zero seven that jury whether you think this is unwise or not isn't the issue the question is whether it was based on some prohibit discrimination and you know it i mean you don't talk a lot in your brief the red brief does a touch but you know you don't talk a lot about your and actually what happened at the trial so one of the questions i have is at that at the trial that happened didn't you put forward evidence on that would address kind of pre print motion biassed creeper motion we put we're able to put forward some evidence that kerry called we were sort of guided into this position all right so there were there was that but again whether that was a good idea or a bad idea we weren't able to challenge by showing this is something that chief marshal didn't continue to do his pattern in fact started with detective henderson and he continued to do discriminatory things so we're able to show that but we weren't able to tie that in with kind of a broader pattern of discrimination and what these cases are obviously hard enough it's people don't really want to assume that that things are happening that these are bad people are making discriminatory decisions and so chief market very ended very easily say selected using the v r a the other officer i said he was like the man competitively with his name was with he was also use that using the v r a host promotion this was post promotion so the only things we had prior to the promotion were instances where it was very obvious that carrie colby was a bad choice but it wasn't really clear that marsh was since he had just gotten there that marsh is making these decisions because as he said he wanted to keep the black and white structure of  the of the police department so we were able to show a pattern and what you really really needed to do was show a pattern and there was no real reason to keep it out the only issue was what you needed to do is as show  terms of discipline carry colby in terms of post from motion employment decisions unrelated to this one doesn't shed much light on the decision makers state of mind at the time this decision was made well otherwise just in these trials of this kind of claim to be unwieldy it really wouldn't have been because we would have been able to ask  testified i always pick the highest score we could have shown that that was not true but where was it true when it came to white officers so he would go to th or he'd have no scores at all the jury needs to look at the entire picture and only judgment that was made was at the time so certainly the distance between the event and some other post if the post event issue is important under four of three but we're talking about some things like henderson he didn't care about the what it was simply of the when i don't know about that i read this is judge shanker right that's correct so i thought there were passages in the transcript in the under the under the four or three analysis where he was saying well hold on some of these post promotion decisions here are facts are still getting sorted out this stuff is all getting litigated and worry about the jury getting confused and and distracted here i agree  is something that you would say so it's not that if you agree with that then that's not strictly just timing what if it's a substantive for a three prejudice analysis there isn't as far as we could discern any case law that says if a critic if a certain circumstance is in litigation that witness that plaintiff in that case can't testify in another case about what happened to them so the question should be how similar is it to detective henderson's case is there anything we could present and undermine the government and keep marsh's defense which is i just picked the highest score and the answer was yes and even when we got into that with kerry we said look we've got this situation with a man named backman off sitting back where he wasn't the highest score and that will that will attack the defense in this case right and the judge the judge in here simply said well responses that plaintiffs had objected to the defendant had never filed a motion to compel the judge also granted that our objections were not in addressed they were sort of bulldozed through we believe that was inappropriate however that that in fact is eaten up by a motion in limine number five because those officers and you have their declarations in the record which is thirty two point one is what this court relied on in the st decision those officers would have tested testified about post promotion issues and they were prevented from doing that so even where this court said something was important the magistrate judge said it was not there was no of waiting of whether testimony about being treated differently than colby would have confused the jury it's not a confusing situation at all and it could have been handled just by asking chief marshal three or four questions on each of these issues that this really isn't an argument that and i think we were we have in our reply or i'm not letting people i'm not letting our witnesses testify beyond what you put in their interactive doors he said that and at that point it's the court we accept the court's ruling right but the problem is we didn't really need those people we in fact have asked chief marse all of this because chief mars was the decision maker in every single instance we're not talking about ultimate decision makers different apartments or if it was police officers same decision maker within a very short period of time and then the rd obviously are provisions of government waive these arguments in the st place because they didn't raise them at any time until on the trial i'm going to reserve the balance of my time unless there's any other question that because mr henderson failed to make an offer of proof the district court about what is evidence was going to be about the other promotions and finally he's entitled to a fair trial not a perfect trial and he hasn't done anything to show wanted to present and in response to that counsel responded that he had evidence about other bad things that kolby had done after he was installed as a criminal investigator and that he was disciplined for that and the judge explained well that really isn't going to tell us anything about the decision maker state of mind at the time of the selection here and if if mr cole beat him perform admirably in the position you wouldn't be saying that that should be able to come in in order and then the judge pointedly asked please counsel do you have anything else that you want to present about post promotion of events and please counsel said yes we have we want to talk about other african americans who are passed over for promotion you are said well that are there findings of discrimination in those cases and if counsel responded no and the judge said well that's doesn't that present serious rule for all three concerns a trial within a trial you know he has six other people that he or you know his other clients in other cases that apparently he wanted to present some evidence about he never told the judge what his actual evidence would be just a sudden general subject matter with other african americans passed over for promotion and the judge said well that seems to me it creates all three issues of a trial within the trial and a jury being confused what is it we're talking about here typically so when all that evidence is directed at chief marsh and the decision to terminate henderson's an application was made by a resume screening panel where chief marshal didn't sit on the panel so that decision is within the broad discretion of the the evidence was also properly excludable because when asked during discovery interest and fail to disclose that is witnesses were going to testify and the subject matter of other african americans this the same information that you're obliged to provide voluntarily under rule twenty six and he answered and he said what the information was and it concerned bad acts by mr colby and the comparative qualifications  the candidate and so we didn't list witnesses that talked about all these other promotion decisions that involve his clients and we relied on those answers and discovery closed the judge told  at the pretrial conference the judge made clear that if any of these subject matter for otherwise made known during discovery that would be sufficient he was very liberal about that he continued in this motion several times each time directing  counsel to talk with us and to explain to us you know what this evidence is why it ought to be admissible in the case even though it wasn't list of the subject matter wasn't listed and mr  s counsel steadfastly refused to do that in fact in the end we wrote him repeatedly asking him to do that and he responded to us saying that he would not and that to do so would interfere strategy reserved issues for appeal so apparently his strategy was to keep the subject the substance of whatever the evidence is stuff that he's described to you here in much more detail than even put in his brief strategy was to keep that secret from the district court and us and and so in the end the district court which confronted him important i asked him whether he had  discussed this with us as he had ordered him to do and innocence counsel said no we hadn't and that he didn't intend to present any evidence on the subject matters not identified in this in iraq a tort and so that's another alternate ground and which all the evidence at issue could properly and then from there on that issue at least as i read the transcript the district court still left it open right he has a minute order of weary road and left it open we are the ones who brought it up at trial we wanted to close the loop on this and find out what was happening our position in this case was that we really didn't know what the evidence was that he wanted to present at a trial because he hadn't told it and apparently it went beyond you know what we thought was relevant in the reason that the district court should be affirmed is that mr henderson waived any claim of evidence or error by failing to make an offer of proof so it's not an offer approved to  say you know i want to present evidence about other promotions you have to say what your evidence is you know what are you going to be presented and if it's evidence that chief marshal and mit it that he had discriminated against somebody else well that would be one  else but if the evidence is just going to be that other that in another promotion case african americans were passed up well that's has it's hard to see what the pro care and his trick bag strategy of keeping that a secret in the district for it is not one that can succeed on appeal finally as the district court evidence about other things or other promotions would have helped him to show that the reason that henderson was not promoted was because of his race  thank you in response there is no secret here there was a secret all of this information was in the record already that's why the government brought their motion lemony to and exclude all of the evidence where the evidence that we wanted to address wasn't in the record we specifically told the judge what it was with respect to the waiver because we didn't get a profit of a proffer the evidence was evident that we intended to elicit from  mark was evident from the context itself we already said these were discriminated determination or discriminatory decisions that chief marshal made passing up witnesses to testify beyond what we disclosed and are in iraq atory responses and as as the government has not addressed at all we objected to their requests and they just sat on those objections it didn't nothing absolutely i totally agree that would be we got our shot but that's not what happened here we had a blanket ban from the beginning and even where the evidence might be of discrimination might be negligible this court has reversed because the whole thing had expired and what chief march did was then hand carry will be the position itself through using the v r a we're going to be able to show that he used that same noncompetitive process for other officers that the go beyond beyond the date because that was honestly the only thing the judge was concerned with even we got into details he only cared about fifty so we would ask this case be remanded so that henderson can have his day in court thank you i thank