[00:00:00] Speaker 02:
Good morning, counsel.

[00:00:03] Speaker 02:
Good morning, your honors.

[00:00:04] Speaker 02:
Susan Coleman for defendant Marcelo Nguyen.

[00:00:07] Speaker 02:
All right.

[00:00:13] Speaker 02:
In this case, Marcelo Nguyen is entitled to qualified immunity.

[00:00:18] Speaker 02:
The conspiracy alleged before in the district court was that there was a conspiracy between Detective Nguyen, her partner, Tal Terrell,

[00:00:28] Speaker 02:
and LA Sheriff's Department detectives, including Riggs, who were virtual strangers before any interaction between them.

[00:00:42] Speaker 02:
And the conspiracy alleged by plaintiffs in their complaint was that the two agencies, LAPD, LA Sheriff's Department,

[00:00:52] Speaker 02:
tried to make Santo Alvarez, a key witness in the Kleene and Dubrique prosecution for the Alarcon murder, a better witness in that case by hiding impeachment evidence against him.

[00:01:05] Speaker 02:
But all the evidence that was collected by Nguyen and her partner Terrell about Santo Alvarez was given to the DA's office more than a year before.

[00:01:16] Speaker 04:
But counsel, wasn't the point that they deliberately

[00:01:21] Speaker 04:
did not collect certain evidence.

[00:01:23] Speaker 04:
They didn't ask certain questions so that they wouldn't get particular evidence.

[00:01:26] Speaker 04:
Isn't that the allegation?

[00:01:28] Speaker 04:
The fact that they passed on what they did uncover doesn't make up for the fact that they deliberately decided not to uncover certain information.

[00:01:40] Speaker 04:
That's the allegation.

[00:01:41] Speaker 04:
So how would giving over the information that they did collect with deliberate omissions, how would that cure

[00:01:49] Speaker 04:
the conspiracy allegation?

[00:01:52] Speaker 02:
Really, the original allegation was that the evidence that Santo Alvarez might have been involved in the Richard Daley homicide wasn't turned over.

[00:02:03] Speaker 02:
But the same prosecutor, Val Cole, prosecuted both the Alarcon murder case and the Daley murder case, and she had that evidence about Santo Alvarez in her possession.

[00:02:14] Speaker 02:
There's no reasonable officer detective in Wynn's position who would think that she violated the law when she turned over the impeachment evidence she had against Santo Alvarez to the district attorney's office more than a year before that other prosecution.

[00:02:29] Speaker 04:
But a reasonable police officer believe they violated the law if they deliberately suppressed questions that would make the witness a less credible witness?

[00:02:43] Speaker 04:
Which witness are we talking about, Your Honor?

[00:02:47] Speaker 04:
Was it Palabar?

[00:02:50] Speaker 04:
Let's see.

[00:02:52] Speaker 04:
Let's see which witness.

[00:02:55] Speaker 02:
Was it Kenny or Wilborn or?

[00:02:57] Speaker 04:
No, Piasso.

[00:02:57] Speaker 04:
Piasso?

[00:02:58] Speaker 02:
Piasso?

[00:02:59] Speaker 04:
Yeah, Piasso.

[00:03:01] Speaker 02:
Alvarez.

[00:03:02] Speaker 02:
Oh, was it Alvarez?

[00:03:04] Speaker 00:
Oh, it's his nickname.

[00:03:06] Speaker 02:
Payaso is the gang name for Santo Alvarez.

[00:03:08] Speaker 02:
And I'll point out that even though plaintiffs Clint and Dembrique were in the same Londale 13 gang, we have not used their gang monikers.

[00:03:17] Speaker 02:
And we should use the names for that.

[00:03:22] Speaker 02:
That's fair.

[00:03:25] Speaker 02:
They tried to interview Santo Alvarez and he refused.

[00:03:30] Speaker 02:
All of Detective Nguyen's interviews were on tape.

[00:03:33] Speaker 02:
There were some interviews I think plaintiffs, police point out in their brief that on one of the interviews of either Katherine Kenny or Ginger Wilborn,

[00:03:48] Speaker 02:
They didn't ask the same questions or the same information wasn't elicited but.

[00:03:54] Speaker 00:
But but but but rigs interviewed Alvarez right.

[00:04:00] Speaker 02:
Detective rigs from the L.A.

[00:04:01] Speaker 00:
Sheriff's Department yes.

[00:04:04] Speaker 00:
Yeah that was in a separate no I understand that and the allegation is that in that interview Alvarez said a number of things that rigs determined to be false.

[00:04:16] Speaker 02:
Well, that could be, but that's the L.A.

[00:04:17] Speaker 00:
Sheriff's Department investigation.

[00:04:21] Speaker 00:
But the allegation is also that Riggs and your client were working together in such a way that plaintiffs allege, we can infer that your client was aware of Alvarez's false statements to Riggs.

[00:04:40] Speaker 00:
And if that's true, then the failure to disclose that looks like a fairly straightforward, they say Brady, but really a giglio.

[00:04:51] Speaker 00:
violation, right?

[00:04:53] Speaker 00:
So what's wrong with that line of reasoning?

[00:04:55] Speaker 02:
What's wrong with that is it's a huge leap that hasn't been shown by the evidence.

[00:04:58] Speaker 02:
There was extensive discovery, and Riggs, at his deposition, didn't remember speaking to Marcella Nguyen.

[00:05:06] Speaker 02:
Admittedly, he had some cognitive impairment at the age he was deposed.

[00:05:11] Speaker 02:
And Nguyen didn't recall speaking to Riggs or his partner.

[00:05:17] Speaker 02:
She was the note-taker.

[00:05:20] Speaker 02:
listed things in the murder book there is one notation and in there about a discussion with l.a.

[00:05:27] Speaker 02:
sheriff's department and like a phone note that lists the names of the three suspects but they could have been called because the l.a.

[00:05:39] Speaker 02:
sheriff's department was had the jurisdiction over the area where the londale thirteen gang members operated is that enough fun i mean this is coming up to us from

[00:05:50] Speaker 01:
denial of summary judgment and so the question is whether there is a Genuine issue of fact as to some of these questions that all might make sense by the time we get to a jury But how does any of that defeat?

[00:06:03] Speaker 01:
back to Judge Miller's framing of If that had happened wouldn't that be a clearly established violation of the plaintiff's rights

[00:06:13] Speaker 01:
If what had happened if there was a discussion there is a conspiracy to suppress evidence that this key witness Was being untruthful Well first there's zero evidence that they actually work together to make that happen and secondly the evidence that zero evidence This is on summary judgment and assume that we disagree with you on that and secondly when

[00:06:40] Speaker 02:
She tried to get Santo Alvarez prosecuted for the Daily Murderer.

[00:06:45] Speaker 02:
And the information she collected about him and all the different statements that people had made about his involvement in that were turned over to the DA's office.

[00:06:54] Speaker 01:
So our position is... I think the alleged violation, as my colleagues have asked about, is an omission rather than a commission.

[00:07:05] Speaker 01:
So not providing, not explaining that

[00:07:09] Speaker 01:
Some critical evidence had maybe not been solicited, I think, is the concern, rather than produced and then not turned over.

[00:07:17] Speaker 01:
Does it do any work?

[00:07:19] Speaker 01:
You've mentioned that they're in different agencies.

[00:07:22] Speaker 01:
Does that matter for purposes of the qualified immunity?

[00:07:26] Speaker 01:
I mean, in other words, is the Guglio right not run to any state actor who has

[00:07:36] Speaker 01:
duty to turn over or be truthful, not fabricate evidence?

[00:07:41] Speaker 02:
Well, the fact that they're in different agencies makes it less likely that a conspiracy occurred when there's just an inference of that based on different things they're trying to put together.

[00:07:50] Speaker 02:
But the fact is that everything that Marcelo Nguyen collected on Santo Alvarez was turned over to the DA's office.

[00:07:59] Speaker 01:
Is your position that

[00:08:01] Speaker 01:
that if a hypothetical law enforcement officer who has a giglio duty to produce exculpatory evidence simply turns out, is willingly blind to exculpatory evidence in that investigation, no liability, willingly blind so as to secure a wrongful conviction that that makes a difference,

[00:08:29] Speaker 01:
You're putting a lot on the fact that they turned over everything, but that's not the theory.

[00:08:32] Speaker 01:
The theory is that they acted intentionally not to uncover evidence that would trigger that duty.

[00:08:42] Speaker 01:
So does that make a difference?

[00:08:43] Speaker 02:
A lot of that theory came out in their answering brief and not below.

[00:08:49] Speaker 02:
The theory below was that they conspired to make Santo Alvarez a better witness and not have impeachment material against him.

[00:08:58] Speaker 02:
in the form of the evidence they had that he was involved in the daily murder.

[00:09:04] Speaker 01:
Right, but if that impeachment evidence, if an investigator with giglio duties to turn over exculpatory evidence, which could include impeachment evidence, makes an effort not to turn up impeachment evidence that they otherwise know is there,

[00:09:23] Speaker 01:
I mean, I think that's something of the theory.

[00:09:25] Speaker 01:
I'm just trying to figure out why you keep saying that they turned it over, but I don't think anything turns on the fact that whether they turned over what they had.

[00:09:31] Speaker 01:
The conspiracy is to ensure that they don't have that impeachment evidence.

[00:09:37] Speaker 02:
Well, in the record below, we also have that there were subsequent investigations of Alvarez.

[00:09:43] Speaker 02:
When the conviction was overturned, there was investigations.

[00:09:47] Speaker 02:
And never was Santo Alvarez charged with the crime for either.

[00:09:51] Speaker 01:
You're not suggesting that makes a legal difference in terms of the clearly established right that this, what I've called willful blindness, but I assume your friends will come up with a better term for to this impeachment evidence, that you're not saying that

[00:10:07] Speaker 01:
A plaintiff doesn't have a clearly established right not to have law enforcement do that to them just because they've turned over everything.

[00:10:15] Speaker 02:
Well, I'm saying number one, they changed their theories on appeal to add in this evidence about the collusion with the L.A.

[00:10:21] Speaker 02:
Sheriff's Department, which wasn't part of their complaint.

[00:10:24] Speaker 01:
OK, but on the legal question, not the presentation question.

[00:10:27] Speaker 02:
And secondly,

[00:10:31] Speaker 02:
There was no additional evidence that would have come out against Alvarez.

[00:10:35] Speaker 02:
I mean, the evidence that they had gathered was all hearsay evidence that Alvarez was perhaps involved in the Daley murder.

[00:10:43] Speaker 02:
They presented him for prosecution.

[00:10:45] Speaker 02:
They tried to get him charged in that case.

[00:10:48] Speaker 02:
And that evidence was turned over.

[00:10:50] Speaker 02:
And for qualified immunity, they need to show a specific case on point that an officer, a detective in Marcella Webb's position.

[00:10:59] Speaker 01:
Why isn't Carrillo that case?

[00:11:00] Speaker 02:
In Corio, I don't think that's a generalized.

[00:11:07] Speaker 02:
Oh, that case, handwritten interview notes of an officer who conducted a coercive ID procedure were not disclosed.

[00:11:16] Speaker 02:
Wynn's tape-recorded interviews, her notes were all turned over.

[00:11:21] Speaker 04:
But not, there's a difference between turning over something to the DA and disclosing

[00:11:28] Speaker 04:
Impeachment evidence to the defense you you acknowledge.

[00:11:32] Speaker 02:
There's a difference to the defense So if you don't turn over the information to the prosecutor the defense never gets it Right, but they when a detective turns over evidence to the district attorney They've met their obligation to produce Brady giglio

[00:11:53] Speaker 02:
all of that evidence.

[00:11:55] Speaker 02:
The DA had an obligation to turn that over, and it was the same district attorney who prosecuted both cases.

[00:12:01] Speaker 02:
All right.

[00:12:02] Speaker 04:
Counsel, did I understand you to say that your client and investigator Riggs never talked to each other?

[00:12:10] Speaker 02:
They didn't recall at their depositions having ever talked.

[00:12:14] Speaker 04:
OK, but doesn't the daily coronal document that they talk with each other?

[00:12:23] Speaker 02:
Yeah, there is something in the Crono.

[00:12:26] Speaker 02:
And Detective Nguyen's testimony in her deposition was that she believed it was to say they had found Richard Daly's body, or that it was found in LAPD territory.

[00:12:38] Speaker 02:
They didn't talk.

[00:12:39] Speaker 04:
The Crono says specifically that Nguyen talked with investigator Riggs.

[00:12:45] Speaker 04:
The Crono says that.

[00:12:46] Speaker 02:
Right.

[00:12:46] Speaker 02:
And it was about Richard Daly's body to her recollection.

[00:12:48] Speaker 04:
Doesn't matter what it was about.

[00:12:50] Speaker 04:
they talked.

[00:12:51] Speaker 04:
The Colonel says that they talked.

[00:12:52] Speaker 04:
The subject of the conversation isn't as important as the fact that they did talk when they said they had not talked.

[00:13:01] Speaker 02:
Right.

[00:13:02] Speaker 02:
I mean, she was a young black detective, and here she's making context.

[00:13:07] Speaker 02:
In the context of that time period, it does kind of, because the

[00:13:14] Speaker 02:
premise that an older white gentleman in the South Bay in an entirely different jurisdiction would have conspired with her to suppress evidence is a stretch.

[00:13:26] Speaker 04:
It's kind of racist, really.

[00:13:29] Speaker 02:
The women and people of different races have had problems in the police agencies going up through the ranks over the years.

[00:13:37] Speaker 02:
It's gotten better.

[00:13:41] Speaker 00:
Do we have a jurisdiction to consider that argument in so far?

[00:13:44] Speaker 00:
I mean the the the not not that specific argument, but the broader Argument that there's inadequate evidence of a conspiracy Doesn't Johnson against Jones say that we can't consider questions of evidentiary sufficiency on interlocutory appeal I

[00:14:03] Speaker 02:
Well, plaintiffs put forth all this evidence asking all these different things in the investigation, particularly the Sheriff's Department investigation, which the LAPD wasn't really involved in.

[00:14:15] Speaker 02:
But they want the inference to be made that there was more communication than is documented, more communication than anyone recalled, in order to find Santo Alvarez a better witness for the prosecution.

[00:14:31] Speaker 02:
I'm just saying that inference is a stretch.

[00:14:34] Speaker 02:
Why should we make the inference in their favor versus not making that inference?

[00:14:40] Speaker 04:
For qualified immunity purposes, we are supposed to consider all the evidence in the light most favorable to the plaintiff.

[00:14:49] Speaker 02:
Well, but also they are supposed to provide a case on point for qualified immunity as to why.

[00:14:54] Speaker 04:
Right, but that doesn't have anything to do with the facts.

[00:14:59] Speaker 04:
construe the facts in the light most favorable to the plaintiff in the qualified immunity context.

[00:15:04] Speaker 04:
So whatever inferences there are, they would go in favor of the plaintiff, not in favor of your client.

[00:15:12] Speaker 02:
But there's no case on point saying that Detective Wynn is not entitled to qualified immunity when she turned over everything to the DA.

[00:15:19] Speaker 04:
We understand your argument.

[00:15:20] Speaker 04:
Thank you, Counsel.

[00:15:21] Speaker 04:
Thank you.

[00:15:30] Speaker 03:
Good morning, Your Honors.

[00:15:31] Speaker 03:
May it please the Court, Deirdre O'Connor on behalf of John Clenny and Eduardo Dumbrique.

[00:15:39] Speaker 03:
Your Honor, the court is correct.

[00:15:42] Speaker 03:
The argument that Wynn is advancing is not the argument that plaintiffs are making.

[00:15:49] Speaker 03:
Plaintiffs agree that Detective Wynn would have no obligation, no further obligation to do anything once she disclosed the items to the district attorney, if the district attorney then chooses not to disclose it.

[00:16:02] Speaker 03:
That's not our case.

[00:16:04] Speaker 03:
Our case is about all the other things she didn't disclose, which includes seal missions, but additional things.

[00:16:10] Speaker 03:
And I'll go through the list for that.

[00:16:12] Speaker 03:
So just to be clear, plaintiff's claim is about what Wynn did not disclose.

[00:16:18] Speaker 03:
We also have deliberate fabrication in the prosecution, which was not addressed in the opinion below.

[00:16:23] Speaker 03:
But there's eight volumes of evidence to support those allegations as well.

[00:16:32] Speaker 03:
The district court, this theory was addressed below.

[00:16:38] Speaker 03:
It is not accurate to say, and counsel may be misremembering the record, but the record is clear.

[00:16:43] Speaker 03:
I think if you look at 70 or 1443, that should be our opposition to the summary judgment motion.

[00:16:50] Speaker 03:
We call them out on this mischaracterization of our case.

[00:16:54] Speaker 03:
We say that has never been our case.

[00:16:56] Speaker 03:
Our case is about the items that weren't disclosed.

[00:16:58] Speaker 03:
So this is not a new argument framed for the first time on appeal.

[00:17:02] Speaker 03:
That has always been our case.

[00:17:04] Speaker 03:
We are talking about the evidence that was not disclosed.

[00:17:07] Speaker 03:
And the district court found that...

[00:17:17] Speaker 03:
listening to that argument and listening to our arguments that this other evidence that there was a reasonable jury could find based on the totality or circumstances that Riggs and Nguyen acted in concert to suppress other evidence that would have undermined Payaso's credibility as a key witness in the Halekon murder.

[00:17:41] Speaker 03:
In framing the issue and mischaracterizing the issue and framing it that way, she's narrowing the case to an irrelevant topic.

[00:17:49] Speaker 03:
That's not the issue here.

[00:17:51] Speaker 03:
And because they've chose to try and present that as the issue, this court is without jurisdiction to handle the case.

[00:18:01] Speaker 04:
That would be a disputed issue of fact, and we wouldn't have jurisdiction.

[00:18:06] Speaker 04:
If there are disputed issues of fact, then qualified immunity, the interlocutory availability isn't there.

[00:18:14] Speaker 03:
Right.

[00:18:14] Speaker 03:
And in framing the issue that way, they're not accepting any of our facts below.

[00:18:19] Speaker 01:
Well, isn't the, and we do, I think you argue that we don't, but we would have jurisdiction to determine whether the facts in the light most favorable to you

[00:18:30] Speaker 01:
Do or don't establish a violation of a clearly established right and does it does it make a difference as?

[00:18:42] Speaker 01:
Wings councils have been arguing that the That here, it's not quite that they had evidence but that they kind of

[00:18:55] Speaker 01:
danced around that evidence, that impeachment, it was the questions not asked, it was the leads not pursued.

[00:19:02] Speaker 01:
I mean, I get that you're saying that there's a little more to that, but if we understand in the light most favorable to the record to point mostly to this willful blindness or failure to further investigate or knowledge that, or hunches that it might be impeachable, but they weren't followed up on, is that different from having

[00:19:23] Speaker 01:
Exculpatory evidence and not turning it over For the qualified immunity and not assume those are the facts that that we take from the record on summary judgment Does that make a difference?

[00:19:34] Speaker 03:
Okay, I think that it does not make a difference in the context of this case, because it is more than that, Your Honor.

[00:19:41] Speaker 03:
The things that, and I would frame that issue about, instead of being just willful ignorance, is that she has information, she's deliberately avoiding exculpatory evidence.

[00:19:54] Speaker 03:
This is similar to the bad faith failure to collect and preserve evidence that would be potentially exculpatory.

[00:20:01] Speaker 03:
So that's the Miller v. Vasquez line of cases.

[00:20:04] Speaker 03:
and end the district court.

[00:20:07] Speaker 03:
analyzes the case in that way.

[00:20:11] Speaker 03:
So that's the failure to speak to Payaso, the failure to re-interview the witnesses that do implicate... Mr. Alvarez.

[00:20:19] Speaker 03:
Well, he's referred to as Payaso throughout the record and in the district court's case as well, because the record is infused with that.

[00:20:26] Speaker 03:
But if the court prefers me to call him Mr. Alvarez, I'm happy to do that.

[00:20:29] Speaker 03:
But throughout the briefing, it's that way.

[00:20:33] Speaker 04:
So before you move on, opposing counsel said that there is no

[00:20:38] Speaker 04:
case that exists at the level of specificity that would put a reasonable police officer on notice that she had violated the Constitution in the context of the facts of this case.

[00:20:53] Speaker 04:
What's your response to that?

[00:20:55] Speaker 03:
And we briefed that in our answer.

[00:21:00] Speaker 04:
So what are you telling us is the closest case on the facts?

[00:21:04] Speaker 04:
to the facts of this case that would constitute clearly established law for purposes of the qualified immunity analysis?

[00:21:12] Speaker 03:
Melanie Nguyen, which is about this case.

[00:21:16] Speaker 03:
And in that case, the court just reaffirmed, it wasn't finding for the first time, but reaffirmed that there's a long history since 1970.

[00:21:24] Speaker 03:
eight, I believe, where officers are prohibited from withholding exculpatory and impeachment evidence of a material witness related to the prosecution.

[00:21:37] Speaker 00:
But that's withholding.

[00:21:38] Speaker 00:
And so I guess the, I mean, it seems like part of your case, and this goes back to Judge Johnstone's question, part of your case is about information that they had that they didn't turn over.

[00:21:50] Speaker 00:
Yes.

[00:21:51] Speaker 00:
But insofar as your case turns on information that they, you know,

[00:21:54] Speaker 00:
Didn't get because they were trying not to get it it seems like I mean one view of that argument is that You you have sort of a it's not clear that there's really a due process claim Certainly not a due process fabrication claim You know the duty of the police to go out and find information is a little bit vague and so you're sort of

[00:22:21] Speaker 00:
Filter it bootstrapping that and just saying well now it's actually a Brady claim because you didn't tell me that you weren't going out and finding information and so it seems like kind of an end run around the lack of very clearly established law on Duty to investigate so what's your answer to that?

[00:22:39] Speaker 03:
Okay?

[00:22:39] Speaker 00:
It's not we're not alleging a duty to investigate well, but I mean you kind of are right I mean because the at least in part the Brady claim is that

[00:22:48] Speaker 00:
You didn't tell us that you were deficiently investigating.

[00:22:53] Speaker 03:
Well, it might help if I could just back up and talk about the things that weren't disclosed, because they're tied to the decision.

[00:23:01] Speaker 03:
So essentially what we're saying, this isn't a failure to investigate like a negligent, I didn't think of it, or I was too lazy.

[00:23:07] Speaker 03:
This is an intentional

[00:23:09] Speaker 03:
a strategic decision to direct investigation in certain ways to achieve the purpose of the conspiracy.

[00:23:17] Speaker 03:
The objective of the conspiracy was just to make sure they can clean up Piasso as much as possible.

[00:23:23] Speaker 03:
So the things that they didn't do here didn't disclose, that Nguyen didn't disclose, and

[00:23:31] Speaker 03:
My colleague is disputing the facts when she says there's no evidence of a conspiracy.

[00:23:36] Speaker 03:
The court below has found that there is ample evidence to bring that to the jury.

[00:23:40] Speaker 03:
And there's ample evidence that Winn and Riggs spoke.

[00:23:44] Speaker 01:
Can I take you back to the Mellon case, which as you say, I mean, it's rare that we have a citation to clearly establish evidence that's referring to the same set of investigations.

[00:23:53] Speaker 01:
But there, I believe we identified again

[00:23:59] Speaker 01:
that it was a withholding, a failure to turn over impeachment evidence.

[00:24:07] Speaker 01:
So there, the impeachment evidence was the officer's assurances to witness that he would be treated favorably by the judge if he testified successfully in the criminal trial, evidence that could have been used to undermine the credibility.

[00:24:18] Speaker 01:
So maybe you're framing it in that way, that the failure to pursue

[00:24:28] Speaker 01:
evidence and to get down in the materials that were turned over that impeachment evidence but the claim isn't in your case that there was evidence in the investigative file that reflected that impeachment that wasn't turned over you're just saying that evidence was never created so there was nothing to turn over that's not what we're saying okay so how do you frame it if melons your best case how do you frame it

[00:24:56] Speaker 01:
in terms of what is the impeachment evidence that should have been turned over?

[00:25:03] Speaker 03:
That they conspired.

[00:25:04] Speaker 03:
That Riggs approached Nguyen, asked her, and the two of them agreed that Payaso presented a problem for their cases, and Nguyen needed assistance to be able to go after her primary suspect, which is Ghost.

[00:25:20] Speaker 01:
And that's a step removed.

[00:25:22] Speaker 01:
The investigators' communication with each other is a step removed from Mellon, in which you're dealing with the officer's actual communication with the witness, isn't it?

[00:25:33] Speaker 03:
But Brady isn't limited to witness interviews, right?

[00:25:37] Speaker 03:
So anything under Kyle's v. Whitley, and I believe Corio also talks about that as well.

[00:25:43] Speaker 03:
There's a Liscar.

[00:25:46] Speaker 03:
is another case where the integrity of the investigating officer investigation is always at issue, and any material, any evidence that undermines and impugns the integrity of that investigation is Brady, and that can be used by the defendant to attack

[00:26:05] Speaker 03:
the veracity of the case and in this particular case it was especially important because Riggs case would have blown up or not for when joining the conspiracy.

[00:26:15] Speaker 00:
So it's fairly clear that you can't bring a due process claim.

[00:26:19] Speaker 00:
Suppose you have an officer who's just not very good at his job, right?

[00:26:24] Speaker 00:
Inspector Clouseau goes around and interviews the wrong people, asks the wrong questions.

[00:26:29] Speaker 00:
That's not a due process violation, right?

[00:26:33] Speaker 00:
But it seems like on your theory, it's a Brady violation when he fails to tell the prosecutor, you know, by the way, I'm not very good at my job, so like,

[00:26:44] Speaker 00:
There's probably a lot of evidence that I didn't get.

[00:26:47] Speaker 03:
I'm sorry if we've not been clear about that.

[00:26:50] Speaker 03:
That's not our claim.

[00:26:51] Speaker 00:
Well, I understand that's not your claim, but it seems to me it is the logic of your position.

[00:26:55] Speaker 00:
So why is that not a Brady claim under your theory?

[00:27:01] Speaker 03:
Well, that's not our claim.

[00:27:03] Speaker 03:
We're not claiming that she didn't disclose her theory.

[00:27:06] Speaker 00:
Yeah.

[00:27:07] Speaker 00:
It seems like the logic of your position suggests that should be a valid claim.

[00:27:13] Speaker 03:
No, our claim is that there were specific things that were done and known that were not disclosed.

[00:27:19] Speaker 03:
And the conspiracy, the fact of the conspiracy was not disclosed.

[00:27:23] Speaker 03:
And that is, those are factual issues that have to go to a jury.

[00:27:26] Speaker 01:
Can it really be just that?

[00:27:27] Speaker 01:
So the exculpatory evidence was the officer's mea culpa, that they just should have come and said, you know, it turns out that we're engaged in this illegal conspiracy to frame your client.

[00:27:35] Speaker 01:
That was the impeachment.

[00:27:37] Speaker 03:
That's not the only impeachment evidence.

[00:27:39] Speaker 01:
Okay.

[00:27:39] Speaker 01:
Let's talk about the other stuff, too I mean you're talking about the conspiracy and if it's just the conspiracy that doesn't strike me that has more to do with Their culpability rather than the plaintiff's culpability, so If you said that it's based on and

[00:28:00] Speaker 01:
evidence that they were communicating with each other to do this.

[00:28:03] Speaker 01:
To do what?

[00:28:04] Speaker 01:
I think your answer to try to frame this around within the realm of qualified immunity and clearly established law is

[00:28:14] Speaker 01:
What was it that they did?

[00:28:16] Speaker 01:
You keep talking about this other evidence.

[00:28:20] Speaker 03:
I'll try to come back to that point, but I want to make sure that... Let's do it right now.

[00:28:25] Speaker 03:
I'm saying that specific point about the conspiracy.

[00:28:28] Speaker 01:
In other words, what would they have had to say?

[00:28:30] Speaker 01:
What would the letter to the prosecutor and the defendants, what would that look like?

[00:28:36] Speaker 01:
What would that statement look like beyond saying, we're engaged in a conspiracy?

[00:28:42] Speaker 03:
The conspiracy is that we need to work our investigation to ensure that there's no additional evidence that comes forward to implicate Paiassa.

[00:28:50] Speaker 01:
Well, that comes close to Judge Miller's concern.

[00:28:52] Speaker 01:
There's not a clearly established due process right, at least one that's been cited to us.

[00:28:56] Speaker 01:
It's just about negligence or duties to investigate.

[00:29:00] Speaker 03:
But that wouldn't be negligence.

[00:29:02] Speaker 03:
If you are intentionally choosing to do a corrupt investigation that is driven by an unlawful purpose,

[00:29:09] Speaker 03:
That's not a failure to investigate case.

[00:29:11] Speaker 04:
But the additional... Is there clearly established law on that point?

[00:29:18] Speaker 03:
Yeah, Kyle's v. Whitley.

[00:29:20] Speaker 03:
That's Brady evidence.

[00:29:23] Speaker 03:
When the police are engaged in wrongdoing, the evidence of the wrongdoing is Brady, independent of... So it's like to think of a... I can't recall the facts of those case, but so they're at a crime scene.

[00:29:36] Speaker 01:
They see the murder weapon on the floor that would associate it with one suspect, and they willfully leave it there and then move on.

[00:29:49] Speaker 01:
That would be an example where, I mean, in other words, they know the evidence is there, but they're not going to get it, and they're not going to disclose.

[00:30:00] Speaker 01:
what they think they know.

[00:30:01] Speaker 03:
And in Miller v Vasquez, the issue there is that they appreciate the potential exculpatory nature of the evidence that they are deliberately avoiding to collect.

[00:30:11] Speaker 03:
And the other evidence here is the June Patty evidence.

[00:30:15] Speaker 03:
And that is outlined in our briefs and in the Mellon versus Wynn.

[00:30:20] Speaker 03:
It's the Laura Patty evidence.

[00:30:23] Speaker 03:
It's the Wynn's embellishment of June Patty's statements to make it more

[00:30:29] Speaker 03:
credible and to give it more potency.

[00:30:33] Speaker 03:
She then the district or the Ninth Circuit opinion talks about all of the things that Wynn did to massage June Patty's statements, including inserting Wicked's role as a lookout, including facts.

[00:30:47] Speaker 03:
So Patty was interviewed on tape and she said what she said.

[00:30:50] Speaker 03:
And then there was a written statement created by Wynn

[00:30:54] Speaker 03:
where additional facts were inserted into the written statement that June Patty said she never made.

[00:31:00] Speaker 03:
And those include making Wicked a lookout, saying that she was told the body was set on fire, that it happened in a location where there was a chain link fence and a trash can.

[00:31:10] Speaker 03:
and the timing of the dump of the body because those were things that June Patty didn't independently provide but when injected into it to make June Patty seem more credible.

[00:31:20] Speaker 03:
The other Brady issue is relates to when changing or coaching and coaching a witness is evidence of coaching a witness is a Brady non-disclosure of evidence of coaching a witness is a Brady violation and that I believe Korea.

[00:31:37] Speaker 04:
Could you wrap up please?

[00:31:39] Speaker 03:
And then I would say that Wynn is also responsible under conspiracy law for all of the violations that Riggs did not, all of the evidence he did not disclose, because once she entered the conspiracy, she is liable for his non-disclosures.

[00:31:57] Speaker 03:
And he didn't disclose things relating to Piasso's credibility.

[00:32:00] Speaker 03:
Lies that he uncovered, new theory of motive where it was uncovered that the motive that was ascribed to John Clinney was not accurate, he was not friends with Medrano, evidence of alternate suspects, and the true motive of the crime.

[00:32:17] Speaker 04:
All right, Counselor, you can see that your time.

[00:32:21] Speaker 04:
Thank you.

[00:32:24] Speaker 04:
Counsel, give me a minute, okay?

[00:32:29] Speaker 04:
Let's have one minute for rebuttal.

[00:32:34] Speaker 02:
Thank you, Your Honor.

[00:32:35] Speaker 02:
You're welcome.

[00:32:38] Speaker 02:
There is no constitutional legal requirement to investigate a homicide.

[00:32:43] Speaker 02:
These detectives did investigate, but there's no liability under constitutional law for if, as plaintiff claims, there was a shoddy investigation.

[00:32:55] Speaker 02:
Her claim that there was an intentional

[00:32:57] Speaker 02:
intentional omissions isn't tied to anything in this case.

[00:33:01] Speaker 02:
She talks about June Patty in the Mellon case.

[00:33:05] Speaker 02:
That is not in the Alarcon homicide case that's at issue here.

[00:33:09] Speaker 02:
That does not pertain to her clients.

[00:33:11] Speaker 02:
And in that case, on appeal, when assumed for purposes of appeal that she had received a statement from June Patty about her sister being a liar, that was not, that was not

[00:33:25] Speaker 02:
Conceded it was assumed for purposes of appeal, but at any rate.

[00:33:28] Speaker 02:
That's a different investigation all of The interviews in this case were tape recorded and turned over so that evidence has been Provided was provided and no reasonable detective would be on notice that when she turns over Evidence of Alvarez's involvement in the daily murder all the stuff that she collected the tape recorded interviews and

[00:33:53] Speaker 02:
that she would be violating the law.

[00:33:56] Speaker 02:
Thank you.

[00:33:56] Speaker 04:
Thank you, counsel.

[00:33:57] Speaker 04:
We understand your argument.

[00:33:58] Speaker 04:
The case has argued is submitted for decision by the court.