[00:00:00] Speaker 03:
May I please report?

[00:00:02] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
My name's Eric Babcock, and I represent Appellant Laveris Bynes, who's with us here today.

[00:00:07] Speaker 03:
I'd like to reserve, if I may, two minutes for rebuttal, potentially.

[00:00:17] Speaker 03:
The district court made a fatal mistake here, because it found there was no direct evidence and deliberate fabrication

[00:00:29] Speaker 03:
by relying solely on the word of Detective Olmsted, who's the one who advocated the statement at issue.

[00:00:39] Speaker 03:
There was no corroboration.

[00:00:40] Speaker 03:
Nobody else to say said exactly what happened.

[00:00:47] Speaker 03:
He reported one thing in his report.

[00:00:51] Speaker 03:
that a witness named Webb said my client was still present when the alleged bomb threat was made.

[00:00:58] Speaker 00:
Was present in the center.

[00:01:00] Speaker 03:
Correct.

[00:01:00] Speaker 00:
Not a fatal mistake.

[00:01:02] Speaker 00:
Nobody died.

[00:01:02] Speaker 03:
There was no bomb, just a threat.

[00:01:05] Speaker 03:
Correct.

[00:01:08] Speaker 03:
The audio, the recording of the Webb interview, she said the opposite, that my client was gone.

[00:01:17] Speaker 03:
It wasn't until

[00:01:20] Speaker 03:
Detective Olmstead was deposed in this case that there was an explanation for this discrepancy.

[00:01:27] Speaker 03:
And he said that another officer was doing the recording.

[00:01:31] Speaker 03:
And the witness made that statement after the other officer left the room, so it was not being recorded.

[00:01:43] Speaker 03:
Officers these days are all trained

[00:01:48] Speaker 03:
in recording devices.

[00:01:51] Speaker 03:
At present, I assume in virtually every police department these days, officers receive training about when to turn them on, when they're allowed to turn them off, and they're well aware when they're interviewing witnesses whether or not those statements that witnesses are making are being recorded.

[00:02:11] Speaker 03:
Some witnesses refuse to be

[00:02:13] Speaker 03:
Interviewed while the recordings are on and they tell the officer they have to turn it off if they want to talk to them in any event There is It's not a legal presumption, but anytime a key witness statement is not recorded and the rest of the statements made by the witness are

[00:02:42] Speaker 03:
That discrepancy is inherently suspicious and requires explanation.

[00:02:51] Speaker 03:
And the key statement here was not recorded.

[00:02:55] Speaker 03:
And the explanation for why it was not recorded was only given by the person who's at issue here, Detective Olmsted.

[00:03:06] Speaker 03:
The problem is the district court had to credit that statement

[00:03:11] Speaker 03:
It had to find Detective Olmstead's deposition testimony believable in order to find, in order to rule as it did against my client on the deliberate fabrication claim.

[00:03:24] Speaker 01:
I'm having a problem with the causation aspect of your claim.

[00:03:30] Speaker 01:
So, I mean, I understand you want to say that this is an important discrepancy because it makes it so that your client couldn't have been in the place to have made the calls at issue.

[00:03:40] Speaker 01:
The problem with that that I'm seeing is that there is other evidence that was presented at the time that a charging decision was made that placed her in the location where she could have made those calls.

[00:03:51] Speaker 01:
And so how can you satisfy causation here to show that there was an injury because of this particular discrepancy?

[00:03:58] Speaker 03:
Thank you, Your Honor.

[00:04:00] Speaker 03:
Because the district attorney who presented the evidence at preliminary hearing

[00:04:06] Speaker 03:
and argued to the Superior Court Judge that there was probable cause, relied on that statement.

[00:04:14] Speaker 03:
Witness Webb's supposed statement to Detective Olmstead, the unrecorded statement, established probable cause.

[00:04:21] Speaker 01:
So is your position that the other evidence was not presented at that preliminary hearing?

[00:04:26] Speaker 03:
That was the

[00:04:27] Speaker 01:
It was certainly not all presented and the key I want you to be precise here is your position that not not just that the D a decided to emphasize or focus on this particular detective statement that you're concerned about but that that's the only thing that was presented on this point about where your client was.

[00:04:47] Speaker 01:
at the time that the calls were made.

[00:04:48] Speaker 03:
I'm not in a position to say it was the only thing that was presented.

[00:04:51] Speaker 01:
OK, so then I used to be a trial judge.

[00:04:53] Speaker 01:
I've handled those kind of preliminary hearings all the time.

[00:04:55] Speaker 01:
And just because a DA decides to focus or highlight a particular piece of evidence doesn't mean that I take out from my mind all the other evidence that's there.

[00:05:04] Speaker 01:
So if there was other evidence presented that put her in that location, how can you satisfy the cause standard?

[00:05:14] Speaker 03:
Well, short of deposing the judge, I think the fact that the DA chose to argue it shows in context to the other evidence presented that the DA viewed it as the most important context, as the key evidence on the issue.

[00:05:39] Speaker 03:
That doesn't necessarily mean that the trial judge agreed.

[00:05:42] Speaker 03:
But it certainly makes it more likely.

[00:05:47] Speaker 03:
Because the court knows, yes, judges make their own decisions, but they are framed by the arguments of counsel.

[00:05:56] Speaker 03:
And the lawyers at preliminary hearings in many cases often know more about the case than the judge at that stage.

[00:06:05] Speaker 03:
So I think the court can find that the evidence at issue here

[00:06:13] Speaker 03:
if it was fabricated was about for approximate cause of the holding order that led to my client being unjustly accused for two years.

[00:06:23] Speaker 00:
So you're saying that if there was some infirm evidence introduced at the preliminary hearing, that would make the rest of the evidence as to where your client was not acceptable?

[00:06:39] Speaker 03:
No, I'm not saying that.

[00:06:43] Speaker 03:
Neither side briefed the rest of the evidence that was presented, but the judicial court noted that, specifically noted in its order, that the Deputy DA, I believe Elaine Kuo, argued the evidence of Webb's statement through Detective Olmsted at the hearing, it was presented as hearsay, on the issue of whether she was present or not.

[00:07:13] Speaker 03:
So I would note that none of the cases say the district court made much of the fact that Ms.

[00:07:29] Speaker 03:
Webb, which she was deposed, did not disavow the statement attributed to her in Detective Olmsted's report.

[00:07:40] Speaker 03:
She may not have directly disabouted, but she was never asked.

[00:07:44] Speaker 03:
She was asked, what did you tell Detective Olmsted?

[00:07:48] Speaker 03:
And she told, at her depositions, he said, I told him that Ms.

[00:07:53] Speaker 03:
Bynes was already gone.

[00:07:55] Speaker 03:
My client's lawyer at the time and government counsel neither side followed up and said, well, have you ever seen the report?

[00:08:03] Speaker 03:
Did you know the detective says that you said something different?

[00:08:07] Speaker 03:
That didn't happen.

[00:08:08] Speaker 03:
But that doesn't have to happen.

[00:08:12] Speaker 03:
And it has happened in Devereux and in Spencer and other cases in the Ninth Circuit, but this was before trial.

[00:08:23] Speaker 03:
The Spencer case happened after a trial, and all these facts were fleshed out in much greater degree.

[00:08:30] Speaker 03:
This was just a motion for summary judgment.

[00:08:35] Speaker 03:
In my view, the district court imposed an elevated requirement

[00:08:41] Speaker 03:
on appellant, not required.

[00:08:45] Speaker 03:
The key here is that, and really the rest of the factors the district court went through are really relevant only on, the other evidence is only relevant if we were trying to prove this circumstantially.

[00:08:59] Speaker 03:
There was direct evidence here of mischaracterization.

[00:09:04] Speaker 03:
And in fact, Detective Olmsted admitted in his deposition that his report contradicted the recording.

[00:09:11] Speaker 03:
Detective Olmsted admitted that.

[00:09:13] Speaker 02:
He recognized that what he wrote... Just the fact that there was a difference means that it was done deliberately?

[00:09:24] Speaker 02:
I think you can... That's the burden she has to meet.

[00:09:31] Speaker 03:
She has to show it's deliberate.

[00:09:33] Speaker 03:
And she had a witness that said, she said one thing, when she's deposed, Witness Webb said she said X.

[00:09:40] Speaker 03:
Officer wrote, why?

[00:09:42] Speaker 03:
So does that prove it beyond a reasonable doubt?

[00:09:45] Speaker 03:
I don't know that it does, but certainly for purposes of getting past summary judgment, the district court recognized that there was a tribal issue of fact about whether there was a fabrication.

[00:09:59] Speaker 03:
And the only reason that we could find it wasn't.

[00:10:02] Speaker 02:
So in your view, the fact

[00:10:11] Speaker 02:
that the recording device was off when this web said this.

[00:10:24] Speaker 02:
So as I understand it, your whole theory about the officer acting deliberately and not in his characterization of what happened,

[00:10:36] Speaker 02:
Was that he knew that Webb had said she had left and didn't include it in his report?

[00:10:45] Speaker 03:
That's part of it.

[00:10:46] Speaker 02:
Yes, what's the other part?

[00:10:50] Speaker 03:
it would be one thing if he'd reported the witness said a variety of things and the report was and but at the end she said something different and My colleague had left and the so there was not being recorded and

[00:11:06] Speaker 03:
But that's not what happened here.

[00:11:09] Speaker 03:
There was a report.

[00:11:10] Speaker 03:
It says, Webb said my client was present.

[00:11:14] Speaker 03:
Listening to the recording, she said quite the opposite.

[00:11:18] Speaker 03:
I think that's enough for a presumption of deliberate fabrication here, at least at a motion stage.

[00:11:26] Speaker 03:
The key point being that the only explanation came from the detective himself, the only explanation about why it wasn't deliberate.

[00:11:36] Speaker 03:
is he's added an explanation.

[00:11:38] Speaker 03:
It's the deposition that his colleague had left.

[00:11:42] Speaker 03:
And he was the one recording, and Detective Olmsted wasn't recording.

[00:11:47] Speaker 03:
There is something, I think the court can say, in my view at least.

[00:11:56] Speaker 03:
This was not some rookie.

[00:11:58] Speaker 03:
This was a detective.

[00:12:01] Speaker 03:
He knows when a witness is being recorded.

[00:12:04] Speaker 03:
He knows when the device is or is not present.

[00:12:11] Speaker 00:
I don't think you've really answered the question that Judge Forrest put you.

[00:12:15] Speaker 00:
If there is other evidence from which your client can be put outside the center at the time the call is made, and that evidence is sufficient at preliminary hearing to find probable cause, then whatever

[00:12:33] Speaker 00:
Error there is in motion summary judgment as to officer Olmstead's Ignoring the first statement is not causative of the damage There was other evidence, but there was also other evidence your honor that my client didn't do it and that was her own that was her own Statement and her own testimony

[00:13:03] Speaker 01:
Make it even slightly more pointed I'm confused by your case here because some of this other evidence that was presented that puts her in the place that Would have made it possible for her to make these calls is her own statement She said she went out and she took the photo with her co-workers, and then she went back in the building so when that is her statement and

[00:13:29] Speaker 03:
Who cares that there is this discrepancy with the detective talking about witness web statement But her her statement has to be taken in context in your honor, and she was interviewed at length It's a very lengthy.

[00:13:42] Speaker 03:
It's a very lengthy recording and she denies over and over and over and consistently doing it she denies making the calls and when you look at a

[00:13:55] Speaker 03:
Yes, it's a long statement and parts of it are confusing but the overall thrust of it the overall statement is not confusing.

[00:14:02] Speaker 03:
She adamantly denies doing anything wrong or making these calls.

[00:14:07] Speaker 01:
You want to save any time for rebuttal?

[00:14:08] Speaker 01:
You're down to a minute.

[00:14:09] Speaker 03:
Thank you.

[00:14:09] Speaker 03:
Yes.

[00:14:18] Speaker 04:
Good morning.

[00:14:19] Speaker 04:
May it please the court Robert Gilbreth for the appellee

[00:14:22] Speaker 04:
This is a narrow appeal.

[00:14:24] Speaker 04:
The district court correctly found that there was no evidence, either direct or circumstantial, that Detective Olmsted knowingly falsified anything in his report and that independent evidence established probable cause for Ms.

[00:14:39] Speaker 04:
Bynes' prosecution.

[00:14:41] Speaker 04:
And the case was resolved on summary judgment, not because the district court weighed credibility, but because

[00:14:49] Speaker 04:
The record contains no proof of intent, which is a critical element under Devereux and Spencer.

[00:14:55] Speaker 04:
So the plaintiff's entire claim, or the appellant's entire claim, rests on one line in Detective Olmsted's report, his notation that Ms.

[00:15:03] Speaker 04:
Webb said that Ms.

[00:15:05] Speaker 04:
Bynes went back inside the building after taking the photographs and before leaving for lunch.

[00:15:10] Speaker 04:
And the plaintiff calls that line a fabrication, but here's the problem.

[00:15:14] Speaker 04:
The audio recording of Ms.

[00:15:16] Speaker 04:
Webb's interview simply stops or was interrupted before that part of his conversation with her.

[00:15:21] Speaker 04:
Detective Olmsted testified that Ms.

[00:15:23] Speaker 04:
Webb clarified her timeline after the recorder was off or Detective Hendricks was out of the room talking to someone else.

[00:15:33] Speaker 04:
And Ms.

[00:15:34] Speaker 04:
Webb was never asked in her deposition whether she ever made that statement, so there's no contradiction in the record.

[00:15:41] Speaker 00:
And so there's just... Didn't Olmstead first say that Webb put Bynes inside the center, or pardon me, outside the center at the time the call was made?

[00:15:54] Speaker 04:
Yes, in the recorded part of her witness interview.

[00:15:59] Speaker 04:
She cares about the recording part.

[00:16:01] Speaker 00:
That's a statement that Olmstead heard Webb make, but he didn't include that in his report.

[00:16:10] Speaker 00:
That's correct, but so therefore why isn't that a contradiction that shows?

[00:16:16] Speaker 04:
Arguably that almost it was after binds But what's key there your honor is that the recording was turned over to the district attorney and so?

[00:16:26] Speaker 04:
Transparency is not fabrication.

[00:16:29] Speaker 04:
The district attorney was given the recording and shown that Ms.

[00:16:33] Speaker 04:
Webb's statement in the recorded portion contradicted what Detective Olmsted said, but then Detective Olmsted explained, yes, that portion of my interview with her was not recorded.

[00:16:45] Speaker 04:
So you're correct.

[00:16:47] Speaker 00:
So it's contradictory evidence by Mr. Olmstead.

[00:16:50] Speaker 04:
Yes, and I think that's correct, and that is why Judge Calabretta said, okay, I don't really think there's a fact question here, but I will go ahead and find that there's a fact question on inconsistency or contradiction or inaccuracy.

[00:17:04] Speaker 04:
So that is what took us to the next step in the analysis.

[00:17:08] Speaker 00:
Should the judge be doing that on emotional summary judgment?

[00:17:10] Speaker 00:
It's a tribal issue of fact, isn't it?

[00:17:13] Speaker 04:
Well, no, because the mere existence of an inconsistency or an inaccuracy is not enough to satisfy or justify an inference of deliberate falsity.

[00:17:26] Speaker 00:
Why not?

[00:17:26] Speaker 00:
I mean, if he buries a statement which proves her innocence, why isn't that sufficient evidence that he's after her deliberately?

[00:17:37] Speaker 04:
Well, if he had buried it, then that might be a different story.

[00:17:40] Speaker 04:
But again, here, the recording, this was all turned over to the district attorney.

[00:17:45] Speaker 04:
Nothing was concealed.

[00:17:47] Speaker 04:
So the district attorney and the court were aware that Ms.

[00:17:50] Speaker 04:
Webb had said something different in the recorded portion of her testimony.

[00:17:55] Speaker 04:
So everybody, this was not concealed.

[00:17:58] Speaker 04:
I think if you had concealment, then that might be a different question.

[00:18:03] Speaker 04:
And of course, Ms.

[00:18:04] Speaker 04:
Bynes did admit in her own deposition that she did go back inside the building after taking that photo.

[00:18:10] Speaker 04:
And I think it's noteworthy that in her deposition, she said it this way.

[00:18:15] Speaker 04:
She said,

[00:18:16] Speaker 04:
I gathered my things.

[00:18:17] Speaker 04:
I put them in the lobby.

[00:18:19] Speaker 04:
I went outside and took the photograph.

[00:18:21] Speaker 04:
And then I went back inside the lobby to get my things.

[00:18:24] Speaker 04:
And I realized, oh, my backpack is still in my office.

[00:18:27] Speaker 04:
So she said I had to go back to my office where the phone calls were made to get my backpack.

[00:18:33] Speaker 04:
So it's not just a matter of her running back in to grab her things out of the lobby.

[00:18:37] Speaker 04:
She actually said in her deposition, I went back to my office.

[00:18:40] Speaker 01:
My understanding from the record is that she made that statement about where she was in her

[00:18:46] Speaker 01:
post-incident interview before the charging decision was made, so that that would have been part of the calculus in terms of do we have a basis for charges.

[00:18:54] Speaker 01:
Am I correct about that?

[00:18:56] Speaker 04:
That's correct.

[00:18:57] Speaker 04:
That's correct.

[00:18:58] Speaker 04:
And so, as the court knows, under Devereux and Spencer, the plaintiff must show two things, a deliberate fabrication, meaning the officer knew or should have known that the information was false or that the officer acted in bad faith.

[00:19:13] Speaker 04:
and that the fabrication actually caused the plaintiff's deprivation of liberty.

[00:19:19] Speaker 04:
Not every inaccuracy rises to a constitutional tort.

[00:19:23] Speaker 04:
Devereux explicitly says that omissions, mistakes, or even carelessness isn't enough.

[00:19:28] Speaker 04:
There has to be knowing falsity.

[00:19:34] Speaker 04:
And both direct.

[00:19:35] Speaker 04:
Yes, Your Honor.

[00:19:36] Speaker 02:
Let me just pose a concern that I have.

[00:19:43] Speaker 02:
essentially found that there were disputed facts of in dispute.

[00:19:49] Speaker 02:
Yes.

[00:19:50] Speaker 02:
He went on to say, well, take a look at all this evidence, no reasonable trier of fact could ever find for plaintiff.

[00:20:02] Speaker 02:
Now, you can do that on summary judgment, but you have to be awfully careful.

[00:20:07] Speaker 02:
Because if you find a tribal issue of fact, usually as Judge Beyer said, go to the jury.

[00:20:13] Speaker 02:
And if you say, well, in my judgment, no reasonable trier of fact could come out the other way.

[00:20:28] Speaker 02:
It could come out in favor of the plaintiff.

[00:20:31] Speaker 02:
Embedded in that is an idea that is a credibility that the court is actually looking at the facts and saying, well, nobody's going to believe her under all these circumstances.

[00:20:49] Speaker 02:
So let's just end this case now.

[00:20:54] Speaker 02:
Boom.

[00:20:56] Speaker 02:
Summary judgment for the defendant.

[00:20:58] Speaker 02:
And I think... It gives me a bit of a pause here.

[00:21:02] Speaker 02:
I mean, you know, I understand that there's a lot going on here and that, you know, she made comments that she was going back inside just as you said and whatnot.

[00:21:16] Speaker 04:
Doesn't help her case, but... I understand the concern, Your Honor, and I think maybe the key here is when you said the

[00:21:24] Speaker 04:
Judge Calabretta perhaps thought nobody's gonna believe her well her being miss binds and when you have a situation like we have here with facts or miss binds Not only admits that she went back inside the building at the pertinent time but the redial on her phone showed that it was her that she had the

[00:21:43] Speaker 04:
that she had the quiz that day, and additional facts that support finding that what the dispute over what Ms.

[00:21:52] Speaker 04:
Webb said could not have been the cause of her deprivation of liberty, then I think that concern is lessened, Your Honor.

[00:22:00] Speaker 04:
But I do understand that concern.

[00:22:06] Speaker 02:
I mean, you know, I will plead guilty to my own when I was a district judge.

[00:22:13] Speaker 02:
There are a few occasions in which I said, no jury is ever going to rule for the plaintiff, and let's just end this case now.

[00:22:23] Speaker 02:
And I took my chances.

[00:22:27] Speaker 02:
And I realize, I mean, I understand the temptation to do that.

[00:22:34] Speaker 04:
And I think.

[00:22:36] Speaker 04:
It does give me pause here.

[00:22:38] Speaker 04:
I do understand that, and perhaps you might

[00:22:41] Speaker 04:
You have to factor in a lot of policy analysis here.

[00:22:44] Speaker 04:
Like if we send every one of these cases to a jury, what effect is it going to have on law enforcement?

[00:22:50] Speaker 04:
So that's a different factor here.

[00:22:55] Speaker 04:
But based on this evidence that Judge Calabretta's careful opinion, I think at best we have at most

[00:23:03] Speaker 04:
Imperfect investigation and maybe a missing few seconds or an unrecorded portion of Audio not a constitutional violation the record shows no deliberate falsification no concealment and Independent probable cause and for those reasons the district court's judgment should be affirmed and if there are no further questions I'll yield the balance of my time your counsel rebuttal

[00:23:32] Speaker 03:
Just to follow up on your honor's last question.

[00:23:37] Speaker 02:
It wasn't a question.

[00:23:40] Speaker 02:
It was an observation.

[00:23:40] Speaker 03:
It was an observation.

[00:23:41] Speaker 03:
You're right.

[00:23:45] Speaker 03:
The district court has to be very careful making credibility determinations.

[00:23:48] Speaker 03:
And in this case, to grant ceremony judgment, the district court was not just making a credibility determination about my client.

[00:23:56] Speaker 03:
It was also making one about Ms.

[00:23:59] Speaker 03:
Webb.

[00:24:00] Speaker 03:
who was a disinterested third party.

[00:24:02] Speaker 00:
Let me ask you something.

[00:24:04] Speaker 00:
The report of Olmstead, ER 142, states that Webb stated she believed plaintiff was still in her office when she left for lunch.

[00:24:18] Speaker 00:
When she left for lunch, right?

[00:24:20] Speaker 00:
But she said just the opposite earlier.

[00:24:24] Speaker 00:
Were both of those statements given to the DA?

[00:24:32] Speaker 03:
You're talking about the detective's report?

[00:24:34] Speaker 03:
Yes.

[00:24:35] Speaker 03:
The detective's report was given to the DA.

[00:24:37] Speaker 00:
So the DA knew at the preliminary hearing that there was an inconsistency in Olmstead's report.

[00:24:47] Speaker 00:
First, Webb said Bynes was out of her office.

[00:24:52] Speaker 00:
Then she said, no, Bynes was in her office.

[00:24:54] Speaker 03:
I think, if I'm not mistaken, Your Honor, I don't have the police report in front of me, but I think the court is confusing

[00:25:02] Speaker 03:
web said that she web left the office not that binds left the office and that Because the report the gist of the report was the report the officer said he reported that my client The web said my client was still in the office Not that she made cut he didn't report that she made contradictory statements and

[00:25:30] Speaker 03:
The contradiction wasn't evident unless you listen to the recording.

[00:25:35] Speaker 03:
The report itself, I believe, I don't have in front of me, but I have reviewed it, and the report says that Webb said Ms.

[00:25:44] Speaker 03:
Bynes was still in the office at the relevant time.

[00:25:48] Speaker 00:
Well, then how is the report contradictory with the recording?

[00:25:52] Speaker 03:
Because the recordings, in the recording, she tells the officer that Ms.

[00:25:57] Speaker 03:
Bynes had left the office before the relevant time.

[00:26:01] Speaker 00:
But both the recording and the report were presented to the DA.

[00:26:05] Speaker 00:
Yes.

[00:26:07] Speaker 01:
Okay.

[00:26:08] Speaker 01:
All right.

[00:26:08] Speaker 01:
Any further questions?

[00:26:10] Speaker 01:
Thank you, Council, for your argument in this matter.

[00:26:12] Speaker 01:
Thank you.

[00:26:13] Speaker 01:
Bynes versus County of Solano is submitted.