[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:01] Speaker 01:
David B. Owens here for the estate of Ian Simmers on behalf of Donna Berube, Mr. Simmers' mother.

[00:00:09] Speaker 01:
I'd like to reserve five minutes for rebuttal.

[00:00:12] Speaker 04:
It's the clock.

[00:00:13] Speaker 04:
We'll try to help you.

[00:00:14] Speaker 01:
Thank you, Judge.

[00:00:17] Speaker 01:
Ian Simmers is innocent of and had nothing to do with the murder of Rodney Gochgenauer.

[00:00:24] Speaker 01:
Simmers could not have committed the crime.

[00:00:26] Speaker 01:
He was home the Friday night it occurred.

[00:00:29] Speaker 01:
The next day, Simmers, just 16, met up with a friend, John Wyatt, just 14.

[00:00:36] Speaker 01:
This was Saturday evening, after Gokenauer had been killed and after his body had been found.

[00:00:42] Speaker 01:
The boys were arrested a few days later.

[00:00:45] Speaker 01:
They had not heard about the murder.

[00:00:48] Speaker 01:
When questioned, Simmers repeatedly told police he did not want to talk to them about the murder and was trying to sleep.

[00:00:56] Speaker 01:
Rather than give a 16-year-old rest or concern,

[00:00:59] Speaker 01:
officers insisted on questioning him.

[00:01:02] Speaker 01:
Eventually Semmers relented.

[00:01:05] Speaker 01:
Semmers spoke with the police about the murder because he said he was, quote, mentally exhausted and rightly concluded they were not going to leave him alone unless and until he spoke with them.

[00:01:18] Speaker 04:
Counsel, can I ask you this?

[00:01:20] Speaker 04:
I appreciate the interesting facts here, but your client served a long time in prison because he was convicted of doing this.

[00:01:28] Speaker 04:
Later on, he got out.

[00:01:29] Speaker 04:
The county decided that there was old evidence.

[00:01:32] Speaker 04:
They really wouldn't want to go through this again.

[00:01:34] Speaker 04:
He has now brought suit.

[00:01:35] Speaker 04:
He himself is dead, I guess, in an automobile or motorcycle accident.

[00:01:41] Speaker 04:
So we got a lot of old evidence you're dealing with, basically, who said what stands, what doesn't stand.

[00:01:49] Speaker 04:
I'd like to know, even if we agree that there was a dispute of material factors, whether it makes swaying

[00:01:58] Speaker 04:
fabricated the Wyatt interview, the district court never passed on a causation element of the fabrication claim.

[00:02:05] Speaker 04:
You seem to argue that Caldwell makes clear that there is causation.

[00:02:09] Speaker 04:
I haven't heard the defendant's response, but I'd like to get your argument.

[00:02:14] Speaker 04:
Why under Caldwell does the very fact that causation is an element of the complaint sufficient?

[00:02:22] Speaker 01:
Yes, Your Honor.

[00:02:23] Speaker 01:
So the issue is one about proximate causation and

[00:02:28] Speaker 01:
The question about proximate cause is about foreseeability.

[00:02:31] Speaker 01:
And that's just the general landscape.

[00:02:33] Speaker 01:
Then more specifically, the question is whether or not fabricated evidence harmed the plaintiff, the criminal defendant, in some way.

[00:02:42] Speaker 04:
This court... And do you have any case law that says, other than you'll claim Caldwell, that if that is listed as an element of the complaint, that that is sufficient?

[00:02:53] Speaker 04:
Any case that says that?

[00:02:55] Speaker 01:
I don't think that that's our claim, and so let me try to clarify.

[00:02:59] Speaker 01:
I apologize.

[00:03:00] Speaker 01:
So the question is whether or not the fabricated evidence could have impacted the criminal proceedings in some manner.

[00:03:08] Speaker 01:
Here, Mr. McSwain's report was written.

[00:03:12] Speaker 01:
It was part of the probable cause determination that this is what happened with Wyatt and that all of these things occurred.

[00:03:18] Speaker 01:
It also impacted the criminal proceedings themselves.

[00:03:21] Speaker 01:
Was Wyatt going to be a witness?

[00:03:23] Speaker 01:
He was not.

[00:03:24] Speaker 01:
And how was he going to testify at the trial?

[00:03:27] Speaker 01:
He was not.

[00:03:28] Speaker 01:
And our contention is that that impacted the criminal proceedings.

[00:03:32] Speaker 01:
This court in Richards talked about causation in terms of fabricated evidence and whether it impacted the conduct of the jury or something like that.

[00:03:44] Speaker 01:
In Lisker, the court recognized that fabricated evidence

[00:03:47] Speaker 01:
has an evidentiary value that impacts proceedings beyond just the trial.

[00:03:52] Speaker 01:
So as you know, as a trial lawyer, you look at the police reports, who's going to say what?

[00:03:57] Speaker 01:
It impacts things like cross-examination.

[00:03:59] Speaker 01:
It impacts things like plea bargaining.

[00:04:01] Speaker 01:
So if the prosecutor has reports that say X, Y, and Z, that may impact how they charge the case.

[00:04:06] Speaker 01:
So there are a lot of ways, just beyond something being admitted at trial, as to whether or not it could impact the criminal proceedings.

[00:04:15] Speaker 01:
It's not as if Mr. McSwain's reports were put away in a box.

[00:04:21] Speaker 01:
They were submitted to the prosecutor.

[00:04:23] Speaker 01:
They were used to enable the prosecution of Mr. Simmers.

[00:04:26] Speaker 01:
And so on that basis, I think causation has been met under Richards and under Caldwell.

[00:04:30] Speaker 04:
Okay, let me ask you this.

[00:04:31] Speaker 04:
If we argue endo, I agree with you, there's a genuine dispute of material effect as to whether McSwain fabricated Wyatt's statements.

[00:04:40] Speaker 04:
Why would we remand against the other defendants?

[00:04:43] Speaker 04:
Why wouldn't we just remand us against McSwain?

[00:04:45] Speaker 04:
The others had nothing to do with this.

[00:04:48] Speaker 01:
So, well, there's two reasons, Your Honor.

[00:04:51] Speaker 01:
So I think, you know, McSwain was not involved in the interrogation.

[00:04:54] Speaker 01:
So there's the whole Fifth Amendment, all of that.

[00:04:56] Speaker 01:
But separately, as it relates to the fabrication, you are right that Mr. McSwain did write that report.

[00:05:02] Speaker 01:
It is our contention and I think

[00:05:04] Speaker 01:
reasonable jury could find that there was an agreement between the officers from these two agencies to treat these two kids.

[00:05:11] Speaker 04:
Unless you're a civil conspiracy concept.

[00:05:13] Speaker 01:
That's part of it.

[00:05:14] Speaker 04:
Correct.

[00:05:15] Speaker 04:
But just taking that concept, what you seem to be arguing is that as part of preparation for trial or trying to get somebody to confess that even talking about it is enough to have a civil conspiracy.

[00:05:30] Speaker 01:
How can that be?

[00:05:31] Speaker 01:
I don't think that's the case.

[00:05:33] Speaker 01:
This is one of the most unique types of evidence I've seen in any particular case because here

[00:05:38] Speaker 01:
They have a bunch of officers from two agencies, and they talk about in their reports themselves literally a meeting of the minds.

[00:05:44] Speaker 01:
Who's going to do what?

[00:05:45] Speaker 01:
We're going to interrogate this person.

[00:05:47] Speaker 04:
And is that wrong?

[00:05:49] Speaker 01:
I don't think it's wrong to do that, but I do think it is when it's this.

[00:05:52] Speaker 01:
So a reasonable jury could find this in this case, that they wanted to say Simmers committed the crime despite his innocence, and that they were going to use John Wyatt as a witness against him.

[00:06:03] Speaker 05:
Well, let me ask you this.

[00:06:04] Speaker 05:
Are you suggesting the police officers knew he was innocent when they were doing all this?

[00:06:08] Speaker 01:
I think that there's evidence they knew or should have knew that Simmers and Wyatt were both innocent at the time this occurred.

[00:06:14] Speaker 01:
So for example, when they picked them up, they both described having left out of their house on Saturday night.

[00:06:22] Speaker 05:
For the civil conspiracy, should have known enough?

[00:06:27] Speaker 01:
So the should have known relates to the element of the fabrication of evidence claim, right?

[00:06:34] Speaker 01:
So for the civil conspiracy has to be an agreement to do something unlawful, right?

[00:06:38] Speaker 01:
And so I was referring to the underlying element as it relates to a way of proving fabrication circumstantially.

[00:06:44] Speaker 01:
So if they knew or should have known that they were innocent, that's a mechanism by which under Devereux and other Ninth Circuit cases, you can show that evidence was fabricated.

[00:06:55] Speaker 01:
So part of that that this court has recognized is

[00:06:59] Speaker 01:
is we have evidence here that says we have these two kids who we picked up for shooting flare guns and doing this other stuff.

[00:07:07] Speaker 01:
They both told us that they left their houses on Saturday night after Gokenauer was murdered.

[00:07:13] Speaker 01:
There's no, the police are the ones who brought up the Gokenauer murder.

[00:07:17] Speaker 01:
uh... the police had the runaway reports you know the kids weren't on friday night so there's a lot of evidence and then when they speak to mister simmers he's not able to tell them any non-public details about the crime he's guessing about things is the police who brought it up and also this was part of their conspiracy that's right your honor and and and

[00:07:37] Speaker 01:
And so it's our contention that a reasonable jury can find, and this is summary judgment, a reasonable jury could find that they, because I wanted to get to this, I think it's important.

[00:07:46] Speaker 05:
So when did their conspiracy begin?

[00:07:49] Speaker 01:
Exactly, so I think it begins when the the Bothell officers arrive at the King County station There's a literally a meeting of the minds at that point and and I just want to back at that point They decide we're gonna go after this kid even though he's innocent correct, and they're gonna Create do whatever they have to do.

[00:08:06] Speaker 05:
They're gonna get him to confess and they're gonna get create evidence right Go ahead.

[00:08:11] Speaker 01:
I'm sorry sorry

[00:08:13] Speaker 01:
It's our contention that's what a reasonable jury could find.

[00:08:16] Speaker 01:
And part of the mens rea, part of the circumstantial evidence, the reason that it's so much a part of our brief is that in the days following this crime, serious crime that needed to be investigated, the police went back and were getting new information every single day about Mr. Gokenhauer.

[00:08:31] Speaker 01:
What was he doing Friday night before he was killed?

[00:08:34] Speaker 05:
Well, let me ask you this.

[00:08:35] Speaker 05:
If the conspiracy theory fails, then the coarse confession can only stand against Hopkins, true?

[00:08:43] Speaker 01:
That's right, because Mr. Rusk is deceased.

[00:08:46] Speaker 04:
Can I shift just slightly on this?

[00:08:49] Speaker 04:
If your causation argument based on Caldwell, taking that as a given, how would a section 1983 claim against McSwain work?

[00:09:00] Speaker 04:
What would the basis for damages be?

[00:09:02] Speaker 04:
How would they be calculated?

[00:09:04] Speaker 01:
So I think that the question, one, it would go to the jury.

[00:09:09] Speaker 01:
The question here is whether or not Mr. McSwain's actions contributed to Mr. Simmers' wrongful conviction for a murder he didn't commit.

[00:09:16] Speaker 01:
And part of the, just I'll try to put it this way, I think that you could say Mr. Simmers might have had a criminal, his friend John Wyatt who was with him, as

[00:09:27] Speaker 04:
somebody who could have testified on his behalf in the case, but for the fabricated reports, he wasn't able to be an exculpatory witness for Mr. Simmers.

[00:09:49] Speaker 04:
false testimony, is that right?

[00:09:50] Speaker 01:
I don't think it would be entirely.

[00:09:52] Speaker 01:
You know, under the basic law about proximate cause, there can be multiple proximate causes.

[00:09:57] Speaker 01:
And a jury would be able to decide that.

[00:09:59] Speaker 01:
So, for example, if there were a trial in this case that had just Hopkins, who is alive, and McSwain, the jury could hear from the testimony.

[00:10:08] Speaker 01:
There is joint and several liability.

[00:10:10] Speaker 01:
That's something.

[00:10:10] Speaker 05:
For those two then, so the denial of the fair trial would be Hopkins and McSwain?

[00:10:15] Speaker 01:
Correct, Your Honor.

[00:10:16] Speaker 05:
And McSwain comes in because of what he said Wyatt told him.

[00:10:21] Speaker 05:
Correct.

[00:10:22] Speaker 05:
And because of what he said Wyatt told him, Wyatt didn't testify?

[00:10:24] Speaker 01:
Right.

[00:10:26] Speaker 01:
And what he put in his reports.

[00:10:28] Speaker 01:
And Wyatt has said what McSwain says that happened, the most important thing, I think that... Well, who made the call not to call Wyatt as a defense witness?

[00:10:39] Speaker 01:
So Mr. Wyatt had a Fifth Amendment right to not testify himself in the criminal proceedings.

[00:10:47] Speaker 01:
His defense attorney, the state, didn't do it.

[00:10:49] Speaker 01:
And the reason why, you know, part of the reason why, and this goes back to your questions, Judge Smith, which is that those reports, his attorney's looking at them.

[00:11:00] Speaker 05:
I need to understand, why didn't Wyatt testify?

[00:11:03] Speaker 01:
He had a fifth member right not to because they threatened him with being an accomplice in the murder.

[00:11:08] Speaker 05:
Okay.

[00:11:08] Speaker 05:
And so Wyatt would have been his alibi witness?

[00:11:11] Speaker 01:
Oh, well, Wyatt would have been an additional alibi witness, yes.

[00:11:14] Speaker 01:
Okay.

[00:11:15] Speaker 01:
You wanted to say five minutes.

[00:11:16] Speaker 01:
You don't have that, but you want to say what you got?

[00:11:18] Speaker 01:
I was just noticing that, but, you know, this, I'll reserve my time.

[00:11:22] Speaker 04:
Very well.

[00:11:23] Speaker 04:
All right, and the county has split its time.

[00:11:25] Speaker 04:
I don't know who's going first.

[00:11:28] Speaker 04:
Ms.

[00:11:28] Speaker 04:
Magnusie, is that right?

[00:11:36] Speaker 00:
Good morning, Your Honors.

[00:11:38] Speaker 00:
May it please the court.

[00:11:39] Speaker 00:
I'm here today on behalf of the Bothell defendants.

[00:11:43] Speaker 00:
to present to this court.

[00:11:45] Speaker 00:
And I'm happy to accept any questions from the court.

[00:11:49] Speaker 00:
I would like to first address the Fourth Amendment claim against my clients.

[00:11:56] Speaker 00:
The court is well aware that when it is trying to determine if there has been a coerced confession that would violate the constitutional law,

[00:12:07] Speaker 00:
that the court is required to look at the totality of all of the circumstances.

[00:12:12] Speaker 00:
And this includes not just the characteristics of the person who has given a confession, but it also includes the details of the interview or interrogation.

[00:12:22] Speaker 00:
And in the plaintiff's briefing, the plaintiff has made a great issue about whether or not the lower court made credibility determinations.

[00:12:35] Speaker 00:
it's important for the court to look at the law, which says that the court is actually required to evaluate certain factors when making this determination as to whether there was a forced confession.

[00:12:47] Speaker 00:
So it's not a credibility determination, but the court looks at those factors.

[00:12:52] Speaker 00:
And we know if there's a case where a juvenile has given a confession, the case law is well established.

[00:13:00] Speaker 00:
We need to give special attention to that, and there are certain factors which must be considered.

[00:13:06] Speaker 00:
And this law is well established in the US v. Preston case, the Rogers v. Richmond case, and many others that were cited by all parties.

[00:13:14] Speaker 00:
Those factors include the age of the individual, the experience, education, background, intelligence,

[00:13:22] Speaker 00:
and capacity to understand and to waive constitutional rights.

[00:13:27] Speaker 00:
So in the analysis that was done by the lower court and which this court will have to do in deciding this case, looking at Mr. Simmers' factors is part of the court's job.

[00:13:40] Speaker 00:
Here, Mr. Simmers was 16 years old, not 12, not even 14.

[00:13:44] Speaker 00:
He was 16.

[00:13:46] Speaker 00:
He had prior convictions.

[00:13:48] Speaker 00:
prior detentions had been returned for violations of parole to detention many times.

[00:13:56] Speaker 00:
He had a higher than normal IQ.

[00:13:58] Speaker 00:
He obtained his GED by the age of 16.

[00:14:02] Speaker 00:
And his mother testified, Ms.

[00:14:04] Speaker 00:
Berube, that he had left home for days at a time and was living on his own, and then he would come back.

[00:14:11] Speaker 00:
So this isn't

[00:14:12] Speaker 00:
a situation where we have a young child who had never been exposed to law enforcement, but rather someone who was in the later teens and had a lot of life experience.

[00:14:25] Speaker 00:
So those are his characteristics.

[00:14:28] Speaker 00:
And let's look at the details of the interview or interrogation with Detective Hopkins and Captain Rusk.

[00:14:38] Speaker 00:
Mr. Simmers was advised of his rights over four times.

[00:14:42] Speaker 00:
He signed four rights advisements.

[00:14:45] Speaker 00:
This is a fact which is undisputed and is not given any attention or argument by the plaintiff in this case.

[00:14:53] Speaker 00:
But this is a very important factor under our well-established case law in determining, was this a coerced confession or was it a voluntary confession?

[00:15:03] Speaker 00:
He had breaks during the questioning, sometimes for quite some time while officers were waiting for Mr. Wyatt's attorney to arrive.

[00:15:12] Speaker 00:
He was provided dinner.

[00:15:13] Speaker 00:
He was provided a blanket when he said he was cold.

[00:15:16] Speaker 00:
He was allowed to sleep.

[00:15:18] Speaker 00:
He testified the officers treated him well.

[00:15:21] Speaker 00:
And I would submit to this court that all of the cases that were cited by the plaintiff in this case were far more egregious in the circumstances and details of the interrogation than in this particular case.

[00:15:34] Speaker 00:
He said that the officers treated him respectfully.

[00:15:38] Speaker 00:
They did not raise their voices.

[00:15:40] Speaker 00:
They did not trick him.

[00:15:41] Speaker 00:
They did not make him promises.

[00:15:44] Speaker 00:
And in fact, he got to a point where he was happy that they were recognizing him for the troublemaker he was and the gangster he wanted to be.

[00:15:54] Speaker 00:
Now plaintiff has argued that there is some sort of a stop point for the court's consideration of the totality of the circumstances.

[00:16:04] Speaker 00:
In other words, the court can only look to the point right before Mr. Simmers testified he started wanting to please the officers and wanting to convince them that he had committed this murder.

[00:16:17] Speaker 00:
But again, the court must follow the law.

[00:16:19] Speaker 00:
And the law says you look at the totality.

[00:16:22] Speaker 00:
At most, Mr. Simmers' argument or the state's argument

[00:16:26] Speaker 00:
is that he was tired.

[00:16:27] Speaker 00:
The officers kept approaching him.

[00:16:29] Speaker 00:
He finally got worn down and said, OK, I'll talk to you.

[00:16:34] Speaker 04:
Can I switch a little bit here?

[00:16:35] Speaker 04:
Yes, sir.

[00:16:35] Speaker 04:
I'm interested again in what I discussed with opposing counsel, and that is the role of Caldwell.

[00:16:43] Speaker 04:
They make the argument that causation can be found when the documents are included in the charging documents, but ultimately not introduced at trial.

[00:16:51] Speaker 04:
What's the state's position on that, or the county?

[00:16:54] Speaker 00:
Thank you, Your Honor.

[00:16:55] Speaker 00:
Yes, it's interesting.

[00:16:57] Speaker 00:
Our factual circumstances are different than what existed in Caldwell.

[00:17:01] Speaker 00:
Here, the court had a three-day full suppression hearing, where multiple witnesses were called to testify.

[00:17:10] Speaker 00:
And again, the other issue that has kind of been eliminated by the estate not pursuing additional claims, which is the issue of probable cause,

[00:17:21] Speaker 00:
Those documents certainly gave probable cause, which was supported.

[00:17:26] Speaker 00:
And so the fact that they were, even if they were filed in the court file or provided to the prosecutor, it doesn't change the other facts.

[00:17:34] Speaker 00:
And I see my time is almost up.

[00:17:35] Speaker 00:
I would like to point out something here that's really important.

[00:17:40] Speaker 00:
The information from Mr. Detective McSwain was still important

[00:17:45] Speaker 00:
with regard to one aspect that Mr. Wyatt admitted even in his 2018 interview, which is, yes, I told the detectives that Mr. Simmers took a knife from my cabana.

[00:17:58] Speaker 00:
His description of that knife exactly matched the murder weapon.

[00:18:04] Speaker 00:
That information alone is what started

[00:18:06] Speaker 00:
Detective Hopkins from saying, wow, how did he know the knife looked like that?

[00:18:11] Speaker 00:
Mr. Simmers testified at deposition in 2022.

[00:18:15] Speaker 00:
Yes, I took the knife.

[00:18:17] Speaker 05:
Well, let me ask you a question about the coerced confession.

[00:18:21] Speaker 05:
Plaintiffs have evidence that they want to present that he was innocent.

[00:18:24] Speaker 05:
How does that play into the fact that they're also alleging a coerced confession?

[00:18:29] Speaker 05:
Because if he was innocent, he confessed for some reason.

[00:18:34] Speaker 00:
Thank you, Your Honor.

[00:18:35] Speaker 00:
Actually, this court is instructed by the US Supreme Court and by prior Ninth Circuit cases that his innocence is not a question to be determined by the court.

[00:18:46] Speaker 00:
And you can find that in the Rogers versus Richmond US Supreme Court case.

[00:18:51] Speaker 00:
The focus here is on what did the officer do.

[00:18:55] Speaker 00:
And it's well recognized that suspects, for whatever reason, there's a number of reasons,

[00:19:02] Speaker 00:
can give false confessions.

[00:19:04] Speaker 00:
They can have other motivations, whether they're covering for someone else, whether they're trying to establish a gangster reputation and want to beat a murder rap.

[00:19:12] Speaker 00:
They can have reasons.

[00:19:14] Speaker 00:
So the court is not to look at was he innocent or not.

[00:19:17] Speaker 00:
The court is to look at what was the conduct of the officers.

[00:19:21] Speaker 00:
And here, we just do not see the type of coercive, abusive, extended conduct.

[00:19:28] Speaker 00:
that you see in the cases that were cited by the plaintiff.

[00:19:31] Speaker 04:
Your time is up, but I have one quick question.

[00:19:35] Speaker 04:
Given the overwhelming evidence that was used to originally convict Mr. Simmers, why did the county ultimately say, we're not going to retry him?

[00:19:47] Speaker 04:
What was the basis for that?

[00:19:49] Speaker 00:
I will let the court know I don't represent the county, but I have read the county's briefing on that.

[00:19:54] Speaker 00:
And the reason is that he had already spent 23 years in prison and a number of the key witnesses, including Detective Rusk, had passed away.

[00:20:06] Speaker 04:
Dead men tell no tales, right?

[00:20:09] Speaker 00:
That's right, Your Honor.

[00:20:10] Speaker 00:
Thank you very much.

[00:20:11] Speaker 04:
I appreciate the court's attention.

[00:20:13] Speaker 04:
Thank you.

[00:20:13] Speaker 04:
So Mr. Townsend then.

[00:20:21] Speaker 02:
May it please the court?

[00:20:22] Speaker 02:
Good morning, Your Honors.

[00:20:22] Speaker 02:
Jesse Townsend for the King County Appellees.

[00:20:24] Speaker 02:
So that's the county itself and then Major McSwain.

[00:20:27] Speaker 02:
We join in the Bothell Appellees argument that the confession of Mr. Simmers was voluntary under the totality of the circumstances test.

[00:20:37] Speaker 02:
So if I can, I'd like to focus on some of the questions the panel asked concerning the fabrication of evidence theory.

[00:20:42] Speaker 02:
concerning Major McSwain and obviously as we briefed we think there's no admissible evidence that supports that theory because evidence must be capable of being submitted in admissible form at trial to raise a genuine issue of fact at summary judgment and it's the burden of the proponent of the evidence to show that this evidence would be admissible at trial and here the state is relying entirely on a

[00:21:08] Speaker 02:
hearsay interview that Mr. Wyatt gave many years later and they've made no showing that it actually will be admissible at trial among other things.

[00:21:16] Speaker 05:
Well isn't Wyatt available to testify?

[00:21:18] Speaker 02:
We have no evidence in the record about that, Your Honor.

[00:21:20] Speaker 02:
We have, you know, the estate's assertion, but no showing that that's the case.

[00:21:26] Speaker 02:
And they did not attempt to depose him, or at least there's no subpoena in the records showing that they attempted to depose him, and no explanation as to why they didn't do that.

[00:21:33] Speaker 02:
Nor is there any other showing such as that they communicated with Mr. Wyatt or that he agreed to testify.

[00:21:38] Speaker 02:
As counsel for the estate noted, he took the Fifth Amendment all those years ago, and there's no

[00:21:44] Speaker 02:
Nothing in the record to indicate that he wouldn't do the same thing.

[00:21:47] Speaker 05:
Has he given a statement, though?

[00:21:49] Speaker 02:
He gave an interview in 2017 before the litigation was filed.

[00:21:53] Speaker 02:
That interview was unsworn.

[00:21:55] Speaker 02:
It was when the state attorney general's office in the county were investigating whether to agree to the motion to vacate the conviction or not.

[00:22:04] Speaker 02:
But it's not a sworn statement in this litigation.

[00:22:07] Speaker 04:
Counsel, was qualified immunity ever raised by anybody here?

[00:22:10] Speaker 02:
It was briefed below, Your Honor.

[00:22:12] Speaker 04:
When?

[00:22:13] Speaker 02:
I believe it was briefed in summary judgment.

[00:22:16] Speaker 02:
I know that this court has been fairly restrictive on qualified immunity when it comes to fabrication claims, which is why it was not featured in our appellate briefing.

[00:22:27] Speaker 02:
Can it play a role?

[00:22:28] Speaker 02:
I mean, could you be raising it to a sponte at this late date?

[00:22:33] Speaker 02:
I don't, I mean, to be frankly, I don't believe we can raise it to a spontane or argument.

[00:22:38] Speaker 02:
So for our purposes, we should put qualified immunity out of our consideration.

[00:22:42] Speaker 02:
I believe that is correct at this appellate stage.

[00:22:44] Speaker 02:
I'm not going to concede that it was waived if the case goes below, but the court doesn't need to get there because aside from the admissibility issue, which is the evidence of actual fabrication, there's no evidence of causation.

[00:22:56] Speaker 02:
And I want to address Caldwell.

[00:22:57] Speaker 02:
Judge Smith, you raised it.

[00:22:59] Speaker 02:
This court in Caldwell said,

[00:23:01] Speaker 02:
that the plaintiff has to come forward with a showing that the fabrication caused him some harm, specifically that the deliberate fabrication caused the plaintiff's deprivation of liberty.

[00:23:11] Speaker 02:
And the estate doesn't have evidence to show that, because the timeline is the same day that Major McSwain allegedly fabricated the statements by Mr. Wyatt, Mr. Simmers confessed.

[00:23:24] Speaker 02:
And two days later, before Mr. Simmers was charged, Mr. Wyatt's counsel and Mr. Wyatt himself told the officers that he would not be a witness, that he was going to not cooperate with the prosecution.

[00:23:35] Speaker 02:
So when the charging document was filed, the prosecution already knew that Mr. Wyatt was not available and that

[00:23:45] Speaker 02:
this was not going to be a source of additional information.

[00:23:47] Speaker 02:
And then beyond that, Your Honors, not only did Mr. Wyatt not testify at trial, to answer your question, Judge Reyes, as the estates noted, he invoked his Fifth Amendment right, but Major McSwain also didn't testify.

[00:23:59] Speaker 02:
And the parties and the court all agreed that no one would reference Mr. Wyatt's statements or the reaction as described by Major McSwain.

[00:24:10] Speaker 02:
So to use the other case from this court, the Richard versus County of San Bernardino case,

[00:24:15] Speaker 02:
there's no chance that the jury's deliberation was affected by this alleged fabrication.

[00:24:22] Speaker 02:
The theory that the estate's advancing now, which is that somehow the existence of this alleged fabrication is what caused Mr. Wyatt to invoke his Fifth Amendment right, has no evidentiary support.

[00:24:33] Speaker 02:
I've seen nothing in the record to suggest that it's because of this alleged report that

[00:24:40] Speaker 02:
that Mr. Wyatt invoked his Fifth Amendment right.

[00:24:44] Speaker 02:
He's described as a witness, not as an accomplice or a suspect, as I understand it in those reports.

[00:24:51] Speaker 02:
The other thing I would just point out, Your Honor, is in response to, I think, Judge Reyes' question, the estate indicated that the conspiracy started when the Bothell officers arrived at the King County Precinct, where the two juveniles were being held.

[00:25:05] Speaker 02:
But the alleged fabrication, according to

[00:25:08] Speaker 02:
the state's own theory would have already happened.

[00:25:10] Speaker 02:
That is to say, for some reason, before this conspiracy, for an unknown reason, Major McSlane had decided to fabricate this conversation, even though it wasn't his crime to investigate and there was no evidence that he had any non-public information about that crime.

[00:25:26] Speaker 04:
Is it the county's position that the conspiracy and Monell claims are derivative claims?

[00:25:34] Speaker 04:
Yes, Your Honor.

[00:25:34] Speaker 04:
Which is not an earlier finding of violation

[00:25:38] Speaker 02:
Not just a violation, you never get to them.

[00:25:39] Speaker 02:
And that also applies to the failure to intervene claim, which the estate also has.

[00:25:44] Speaker 02:
So for all those claims, if there's no constitutional violation, be it coerced confession or fabrication theory, those claims fail at that stage.

[00:25:55] Speaker 02:
Even if not, the Menell claim of course fails for additional reasons, which is the estate didn't offer evidence of a prior pattern.

[00:26:02] Speaker 02:
And this court has required that sort of evidence.

[00:26:04] Speaker 02:
And for example, the Stoopi-City of Everett case, which the estate does not try to distinguish.

[00:26:08] Speaker 02:
And it's not disputed.

[00:26:09] Speaker 02:
The estate doesn't have a prior pattern of evidence.

[00:26:11] Speaker 02:
So that's an additional reason why the Mannell claim fails.

[00:26:15] Speaker 02:
And then the conspiracy claim, there's no evidence of an agreement.

[00:26:18] Speaker 02:
All the estate has is an evidence of meetings.

[00:26:22] Speaker 02:
But that's insufficient to reasonably infer that at those meetings, officers from two different agencies, one of which was not in charge of solving this murder, decided

[00:26:32] Speaker 02:
seemingly arbitrarily to pin it all on this one juvenile.

[00:26:36] Speaker 04:
It seems that that claim would pretty much damn any police investigation.

[00:26:41] Speaker 04:
Because all you have to say is you've got a bunch of officers to get together to talk about a case and a story.

[00:26:46] Speaker 02:
Well, it would damn any investigation, Your Honor, where officers

[00:26:50] Speaker 02:
talked to other off agencies to collect cooperated and then documented in their cooperation in their notes that yes they communicated with other agencies.

[00:26:58] Speaker 04:
That would be conspiracy under the plaintiff's position.

[00:27:00] Speaker 02:
Correct.

[00:27:01] Speaker 02:
That sort of evidence would then automatically be turned into a conspiracy which then can be used to broaden the pool of defendants for any sort of underlying violation.

[00:27:13] Speaker 02:
And then the same again is true for the failure to intervene claim where

[00:27:16] Speaker 02:
It's just not reasonable.

[00:27:17] Speaker 02:
There's just no evidence to build a reasonable inference that any of the King County officers, specifically Major McSwain, knew that anyone's rights were being violated, such that he would then have had the opportunity to intervene, which is, of course, required for the failure to be claimed.

[00:27:31] Speaker 02:
And if your honors have no further questions.

[00:27:33] Speaker 04:
Other questions?

[00:27:34] Speaker 02:
I think not.

[00:27:35] Speaker 02:
Thank you.

[00:27:35] Speaker 02:
I ask that you all affirm.

[00:27:35] Speaker 02:
Thank you so much.

[00:27:36] Speaker 04:
All right.

[00:27:37] Speaker 04:
Mr. Owens, you have some rebuttal time.

[00:27:47] Speaker 01:
Thank you, Your Honors.

[00:27:48] Speaker 01:
This is a summary judgment posture.

[00:27:50] Speaker 01:
The question is what a reasonable jury can find.

[00:27:53] Speaker 01:
And when it comes to credibility, Mr. Simmers gave an account of the interrogation.

[00:27:59] Speaker 01:
In his own words, he said, I didn't want to talk to the police.

[00:28:03] Speaker 01:
They wouldn't acknowledge or respect my right to silence.

[00:28:07] Speaker 01:
They pressured me to talk to them.

[00:28:09] Speaker 01:
That's his words as a juvenile.

[00:28:12] Speaker 01:
You have to construe the facts and make inferences from them in the light most favorable to the plaintiff.

[00:28:18] Speaker 01:
And what the Bothell argument presented to you is construe the facts in our favor.

[00:28:23] Speaker 01:
Mr. Simmer's age essentially doesn't matter because he had been previously arrested.

[00:28:27] Speaker 01:
But the Supreme Court has said it doesn't matter the sophistication of the juvenile.

[00:28:31] Speaker 01:
He's still 16.

[00:28:33] Speaker 01:
You still have to consider that in his favor.

[00:28:35] Speaker 01:
When it also... Let me just ask you a question.

[00:28:38] Speaker 05:
Without the conspiracy,

[00:28:40] Speaker 05:
For the denial of the fair trial theory, all you have left are Hopkins and McSwain, right?

[00:28:50] Speaker 01:
I think that was true, regardless of the conspiracy.

[00:28:53] Speaker 05:
And then the failure to intervene, you have the four officers, Schlegel, Hopkins, Meyer, and McSwain?

[00:29:00] Speaker 01:
No.

[00:29:01] Speaker 01:
So I'm sorry.

[00:29:02] Speaker 01:
I misunderstood the prior question, Your Honor.

[00:29:04] Speaker 01:
It would be all four.

[00:29:05] Speaker 01:
And I'll jump to this.

[00:29:07] Speaker 01:
So as it relates to the conspiracy, and I want to provide an answer to this, Judge Smith, our claim is not that every single time police get together and talk and work together that there's a civil conspiracy that's actionable under the law.

[00:29:19] Speaker 01:
That is absolutely not our claim.

[00:29:22] Speaker 01:
However, when subsequent to that, there are fabricated police reports that result in the wrongful conviction of a teenager for a murder they didn't commit.

[00:29:31] Speaker 01:
based upon information in those reports that sounds true, that's the thing that creates liability, is what were they agreeing to in that conversation.

[00:29:39] Speaker 01:
So it is certainly not going to be the case that standard police work is going to be implicated by our theory, because as the court mentioned, it's a derivative theory.

[00:29:48] Speaker 01:
You have to find an underlying constitutional violation.

[00:29:51] Speaker 04:
And in this case, you think the causation through Caldwell is your answer, right?

[00:29:55] Speaker 01:
Part of the answer, that's right, and what Caldwell talks about is evidence in the prosecutor's file can impact a criminal proceedings.

[00:30:02] Speaker 01:
This court said that again in Lisker, which is 780 F3 1237, about the impact of fabricated evidence and police reports beyond USET trial.

[00:30:14] Speaker 04:
As I understand it, your argument is that it's the fact that it was referred to in the indictment, not that it was

[00:30:20] Speaker 04:
introduced into trial, right?

[00:30:21] Speaker 01:
It wasn't introduced at trial, correct.

[00:30:23] Speaker 01:
And police reports are basically never introduced in criminal proceedings, right?

[00:30:27] Speaker 01:
That's why they don't have to be introduced to impact a criminal proceeding.

[00:30:31] Speaker 01:
So we've come up with a number of ways in which their very existence in a file could impact the way in which, you know, the criminal defense attorney, the prosecutor, and other folks act during those criminal proceedings.

[00:30:43] Speaker 01:
And I do want to address the point, which is that

[00:30:47] Speaker 01:
The evidence at trial, you know, confessions are a big deal if somebody confesses to a crime.

[00:30:52] Speaker 01:
And, you know, there wasn't overwhelming evidence of Mr. Simmers guilt outside of that.

[00:30:57] Speaker 01:
And post-conviction, there was additional DNA testing done on the murder weapon itself that wasn't Mr. Simmers.

[00:31:04] Speaker 01:
The court looked at the juvenile brain science that we, you know, you saw in Miller against Alabama, all of those cases.

[00:31:11] Speaker 01:
That's what was presented.

[00:31:12] Speaker 01:
But it doesn't matter what the county's rationale was for dismissing the charges or not.

[00:31:16] Speaker 01:
That's not part of the proof.

[00:31:17] Speaker 01:
But there was proof of Mr. Simmers' innocence.

[00:31:20] Speaker 01:
This is summary judgment.

[00:31:22] Speaker 01:
Mr. Simmers said he's, I am innocent.

[00:31:24] Speaker 01:
That must be credited at this juncture.

[00:31:26] Speaker 01:
Inferences from that fact

[00:31:28] Speaker 03:
must be credited

[00:31:49] Speaker 03:
in your opening, that certainly you can have different theories of proximal causation.

[00:31:54] Speaker 03:
But at least in my experience, it's pretty tough for a jury to wait.

[00:31:59] Speaker 03:
It's sometimes self-defeating.

[00:32:01] Speaker 03:
So my question to you is, what's your best theory?

[00:32:03] Speaker 01:
I think our best theory is that Hopkins and McSwain work together.

[00:32:07] Speaker 01:
There's two juveniles, one Simmers, one is Wyatt.

[00:32:10] Speaker 01:
They split them up, and the goal was to get

[00:32:16] Speaker 01:
to a conviction of Mr. Simmers via a false confession.

[00:32:19] Speaker 01:
And that's what they obtained from him.

[00:32:22] Speaker 01:
They didn't get Simmers, or excuse me, Wyatt to comply with that.

[00:32:26] Speaker 01:
And that's what set this whole ball in motion.

[00:32:29] Speaker 01:
And part of that also involves them discarding the evidence of Fred, the motorcycle outlaw gangs, all of the people who saw, who interacted with the victim the night before.

[00:32:39] Speaker 01:
And that's why these police were working together, and that they continued when they wrote their reports six days later, weeks later, that they were continuing to work in advance of that goal.

[00:32:51] Speaker 01:
And so that would be the theory.

[00:32:52] Speaker 04:
Thank you.

[00:32:52] Speaker 04:
All right.

[00:32:52] Speaker 04:
Thank you very much, all counsel, for your argument.

[00:32:55] Speaker 04:
The case of a state of Ian Simmers versus County of King et al is submitted.