[00:00:00] Speaker 01:
Mr. Stanley.

[00:00:01] Speaker 01:
Thank you so much, and may it please the court, Martin Stanley and Edward Barrett, who are also the trial counsel for the appellant in this case.

[00:00:12] Speaker 01:
This case was very difficult to try.

[00:00:17] Speaker 01:
I'm sorry to say that Mr. Barrett and I have tried a lot of cases, I'm not sorry to say that, but this was an extremely difficult court to try this case in.

[00:00:25] Speaker 01:
For example, when I would address the court and say respectfully, I was lectured for five minutes, that's in the record.

[00:00:32] Speaker 01:
A lot of the things are not in the record.

[00:00:34] Speaker 01:
But one thing for certain is that there is a continual pattern of negativity from this judge toward our side.

[00:00:45] Speaker 01:
When I asked how many minutes do I have left in my rebuttal argument, he made a

[00:00:51] Speaker 01:
I know it doesn't show in the record, but I feel obligated to tell this court.

[00:00:55] Speaker 01:
He made an extremely nasty face and put his hands up and put six minutes.

[00:01:02] Speaker 01:
Did not respond.

[00:01:04] Speaker 01:
Then afterward, he said, from now on, you should have your own staff sitting next to you keep time for you.

[00:01:10] Speaker 03:
Do you think this is your best argument?

[00:01:12] Speaker 01:
No.

[00:01:13] Speaker 03:
And don't start with it.

[00:01:15] Speaker 01:
But I think when you go back to

[00:01:20] Speaker 01:
the evidence itself.

[00:01:22] Speaker 03:
I almost never find an attack on the trial judge to be a persuasive argument on appeal.

[00:01:31] Speaker 03:
Perhaps my colleagues have a different view.

[00:01:33] Speaker 03:
And I think you have better arguments to make and limited time to make them.

[00:01:37] Speaker 03:
So I think you ought to move to the other ones.

[00:01:39] Speaker 01:
I agree.

[00:01:40] Speaker 01:
And the only reason why I'm making that is because to have to go back to that court would be an extremely difficult time.

[00:01:45] Speaker 03:
You'll only have to go back if we reverse.

[00:01:47] Speaker 01:
No, I understand that.

[00:01:49] Speaker 03:
So tell us why you wish you would reverse.

[00:01:50] Speaker 01:
Well, okay, first, I think the court should consider whether we should be going back to that court is my point.

[00:01:56] Speaker 03:
You really want to make this argument make it, but I'm telling you, I don't find it persuasive.

[00:02:00] Speaker 01:
I understand.

[00:02:02] Speaker 01:
Well, first of all, let's talk about the past arrest.

[00:02:05] Speaker 01:
Under California law, that past arrest should never have been admitted.

[00:02:10] Speaker 01:
There was no charge, no conviction, no nothing.

[00:02:15] Speaker 01:
Nothing happened.

[00:02:16] Speaker 01:
And under California law, it's clear there's a Supreme Court case that has nothing to do with probable cause.

[00:02:21] Speaker 01:
Yet this judge allowed that evidence in.

[00:02:24] Speaker 01:
This case was originally filed in California State Court, not in federal court.

[00:02:28] Speaker 01:
The defendants underneath the Pellee removed this case to federal court.

[00:02:34] Speaker 01:
Now, this is the third time we've been here.

[00:02:38] Speaker 01:
And the past arrest just had nothing, no business being in this case.

[00:02:43] Speaker 01:
But what it did do is prejudice this jury.

[00:02:47] Speaker 01:
It was definitely not harmless.

[00:02:49] Speaker 01:
It was extremely dangerous.

[00:02:51] Speaker 01:
It was about an arrest relating to six months earlier, or several months earlier, that an African American was supposedly held at gunpoint by our client.

[00:03:03] Speaker 01:
That was allowed to be heard by this jury.

[00:03:06] Speaker 01:
Now, that's one.

[00:03:08] Speaker 01:
Then we get into the gang affiliation issue.

[00:03:11] Speaker 01:
Now, I think what's really unusual about this case, I've never seen this before, is that this judge not only did not limited the

[00:03:22] Speaker 01:
evidence to Mr. Mia's gang affiliation, but he also allowed in how this gang had a shot caller, who the leaders of the gang were, how they were affiliated with anti-African-American racist crimes that they did over and over again, and none of that evidence had anything to do with our client.

[00:03:46] Speaker 00:
Well, but the offense for which your client was arrested

[00:03:52] Speaker 00:
There was a lot of evidence that that crime was racially motivated, right?

[00:03:56] Speaker 00:
And so isn't evidence of the gang's racist views, like, I mean, probable cause is a very low standard, and rule 401 relevance is also a very low standard.

[00:04:09] Speaker 00:
And so if the question is, is this evidence that makes it more likely that the officer could have had probable cause, it seems like there is a connection there, isn't there?

[00:04:21] Speaker 01:
For example, let's say he was a gang member and there were 5,000 gang members.

[00:04:26] Speaker 01:
And 100 of those gang members were shooting people all over town.

[00:04:30] Speaker 01:
Does that mean that is evidence for probable cause?

[00:04:34] Speaker 01:
I would say that's way too attenuated.

[00:04:36] Speaker 01:
And I think that the evidence in this case was way too attenuated.

[00:04:40] Speaker 01:
And you have to remember, you're dealing with a jury.

[00:04:42] Speaker 01:
And a jury doesn't understand all the intricacies of probable cause.

[00:04:45] Speaker 01:
They're understanding the intricacies of common sense.

[00:04:48] Speaker 01:
And they hear all this stuff.

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And that's extremely tainting.

[00:04:52] Speaker 01:
They don't see, oh, that has nothing to do with Mr. Mia.

[00:04:55] Speaker 01:
They see, this is really bad.

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This guy's a member of this horrible gang.

[00:05:00] Speaker 01:
And they can, we of course see there's probable cause simply because he's a member of the gang.

[00:05:04] Speaker 03:
Is your argument a 401 argument or a 403 argument?

[00:05:07] Speaker 01:
It's both.

[00:05:08] Speaker 03:
Well, I understand the 403 argument.

[00:05:11] Speaker 03:
I'm not sure I understand the 401 argument.

[00:05:13] Speaker 03:
If the police have reason to believe that a member of a gang who meets a certain description has committed a crime,

[00:05:22] Speaker 03:
The fact that somebody is a member of that gang and meets a description is enough to establish probable cause, but there are certain facts, there are certainly facts that the police might take into account with others to establish probable cause, aren't they?

[00:05:35] Speaker 01:
Yes.

[00:05:36] Speaker 03:
Aren't they, aren't they, don't they make the fact more probative under 401?

[00:05:40] Speaker 01:
Potentially, but that's why the jury needs to be clearly instructed which is the second argument that we make That's why I wanted you to turn to the instruction So the extraction was supposed to be a limiting instruction, so if you read the instruction carefully tell me I'd love to know sorry

[00:06:02] Speaker 01:
Well, and the opinion is sometimes, too.

[00:06:05] Speaker 01:
But what is limiting about that instruction?

[00:06:07] Speaker 01:
It basically says, well, you can use gang affiliation in and of itself for probable cause.

[00:06:15] Speaker 01:
It doesn't say that alone is not enough.

[00:06:19] Speaker 01:
It does not say anything.

[00:06:21] Speaker 01:
That's what I was asking for.

[00:06:22] Speaker 01:
Can you please tell the jury that

[00:06:23] Speaker 01:
The gang affiliation alone is not enough.

[00:06:26] Speaker 01:
I asked for that.

[00:06:27] Speaker 01:
The judge said no.

[00:06:28] Speaker 01:
So he didn't give any instruction whatsoever that was limiting.

[00:06:32] Speaker 01:
In fact, this was really expansive.

[00:06:33] Speaker 03:
Well, he said you couldn't use the gang evidence to prove that plaintiff is a person of bad character or had a disposition to commit crimes.

[00:06:43] Speaker 03:
Was there a request that it be expanded to say it couldn't by itself cover probable cause?

[00:06:48] Speaker 01:
Yes.

[00:06:49] Speaker 03:
Tell me where that is in the record.

[00:06:51] Speaker 01:
Yes, I hope.

[00:06:53] Speaker 01:
I Definitely did ask that but let me see if I can find that and I apologize Well, I can look later.

[00:07:04] Speaker 03:
So don't want you you'll get up on the rebuttal.

[00:07:07] Speaker 01:
I'll try to find it I

[00:07:10] Speaker 01:
So I did definitely ask for that.

[00:07:13] Speaker 01:
And I thought, that's the law.

[00:07:16] Speaker 01:
I asked for it because it's the law.

[00:07:18] Speaker 01:
Because you cannot find probable cause based just on the fact that you're a member of a gang.

[00:07:24] Speaker 01:
And he said, no, that's argument.

[00:07:27] Speaker 01:
How can that be possibly argument?

[00:07:28] Speaker 01:
And we address that in our I'm sure reply brief.

[00:07:31] Speaker 01:
How can that possibly be argument?

[00:07:33] Speaker 01:
Argument means you can argue either way.

[00:07:36] Speaker 01:
That's not argument.

[00:07:37] Speaker 01:
That's the law, plain, simple, clear, undoubtedly no possibility of any other claim.

[00:07:44] Speaker 01:
No one can argue he's a member of a gang, so that's enough for probable cause.

[00:07:52] Speaker 01:
And as a matter of fact, going back to the evidence of the past arrests coming in, it just adds to that.

[00:08:01] Speaker 01:
So I think overall,

[00:08:05] Speaker 01:
there is no possible way that the court was correct in providing that instruction to the jury the way it was provided.

[00:08:16] Speaker 01:
It was not limiting at all.

[00:08:18] Speaker 01:
Not using it for character has nothing to do with not using it for probable cause.

[00:08:22] Speaker 01:
And in fact, the instruction itself further states it can be used for probable cause if I'm not mistaken.

[00:08:27] Speaker 01:
I pretty much recall this record pretty well.

[00:08:31] Speaker 01:
Now, next thing I want to talk about is Mr. Mia's innocence.

[00:08:36] Speaker 01:
if that's okay, the issue of whether that should have come into the proceeding.

[00:08:42] Speaker 01:
And I think undoubtedly that his innocence, the fact that he was found factually innocent, was something important, especially since the jury instruction required you to prove innocence.

[00:08:52] Speaker 01:
Now, the defense is saying

[00:08:53] Speaker 00:
Well, it required you to prove favorable termination, which is not quite the same thing, right?

[00:08:59] Speaker 01:
Correct.

[00:08:59] Speaker 01:
Favorable termination.

[00:09:01] Speaker 01:
The defense, or the appellees are saying, well, the statement of the case indicated that he was found innocent because it was reversed.

[00:09:09] Speaker 01:
The statement of the case is not evidence.

[00:09:12] Speaker 01:
Never has been, never will be, and in fact, the court used the statement.

[00:09:16] Speaker 03:
Why is it relevant to the issue of probable cause?

[00:09:19] Speaker 03:
Factually innocent people, legally innocent people, can be arrested with probable cause.

[00:09:27] Speaker 03:
This is a case about malicious prosecution, and so why is it relevant?

[00:09:33] Speaker 03:
And I guess in your terms I'd ask two questions, and why isn't it under 403 exactly the kind of evidence that is likely to prejudice the jury the other way in which the judge should keep out?

[00:09:46] Speaker 01:
And I understand that point except the jury instruction required you to prove favorable termination.

[00:09:51] Speaker 03:
But favorable termination was not contested.

[00:09:54] Speaker 03:
Favorable termination was not contested in this case.

[00:09:58] Speaker 03:
The charges were dismissed.

[00:10:00] Speaker 03:
Charges can be dismissed for all sorts of reasons other than actual innocence.

[00:10:05] Speaker 03:
Actual innocence is a very different concept.

[00:10:08] Speaker 01:
But the jury was not told that there was a favorable termination, ever.

[00:10:13] Speaker 01:
There's no evidence of that in the record.

[00:10:16] Speaker 03:
You don't raise on appeal an argument that the jury wasn't properly instructed about favorable termination.

[00:10:23] Speaker 01:
That's correct.

[00:10:24] Speaker 01:
What we do, to the extent that we're saying that... Do you want the jury to be told he didn't commit the crime?

[00:10:32] Speaker 03:
And I don't know why that is relevant to the issue of probable cause.

[00:10:36] Speaker 01:
It's relevant to the issue of favorable termination, which was a required element under the jury instructions that were given by the court, the Ninth Circuit Model jury instructions, to this jury.

[00:10:47] Speaker 03:
The jury was instructed unfavorable termination?

[00:10:49] Speaker 03:
Correct.

[00:10:50] Speaker 03:
And they found, and so they were instructed unfavorable termination.

[00:10:54] Speaker 03:
They were instructed- You were entitled to present evidence that the charges were terminated favorably to your client.

[00:11:01] Speaker 03:
That's not the issue.

[00:11:03] Speaker 03:
The issue is whether you were entitled to present evidence that your client was actually innocent.

[00:11:08] Speaker 03:
And that's what the judge kept out, and I'm not sure why he should have let it in.

[00:11:12] Speaker 01:
Well, because, respectfully, the favorable termination was that he was found factually innocent.

[00:11:20] Speaker 03:
The favorable termination was that the charges were dismissed.

[00:11:24] Speaker 01:
Well, there was no evidence of that in this case.

[00:11:27] Speaker 03:
Well, but you could have put in evidence of that.

[00:11:30] Speaker 03:
The judge didn't prevent you from putting in evidence of favorable termination.

[00:11:35] Speaker 03:
He only prevented you from putting in evidence of actual innocence.

[00:11:38] Speaker 03:
Those are two different concepts.

[00:11:40] Speaker 01:
I understand they're different concepts, but I think one is relevant to the other.

[00:11:45] Speaker 01:
A favorable termination can be a finding of an actual innocence.

[00:11:50] Speaker 01:
And that's the evidence we wanted to put in.

[00:11:52] Speaker 01:
That doesn't mean it's wrong to put that in.

[00:11:55] Speaker 01:
That is a favorable termination.

[00:11:58] Speaker 01:
We don't have to put in only this kind of evidence, only that kind of evidence.

[00:12:02] Speaker 03:
But see, now we're back to my question, and I don't want to spend too much time.

[00:12:05] Speaker 01:
I apologize.

[00:12:06] Speaker 03:
But the judge, I think, could have reasonably said,

[00:12:10] Speaker 03:
I'll let you put in evidence of favorable termination if you want to.

[00:12:13] Speaker 03:
We've chosen not to.

[00:12:14] Speaker 03:
I'm not worried about that.

[00:12:16] Speaker 03:
I'm not going to let you put in evidence of actual innocence because that presents a 403 issue for me.

[00:12:21] Speaker 03:
That is liable to leave the jury to have sympathy that in determining probable cause it's not supposed to have.

[00:12:30] Speaker 03:
So I'm trying to figure out why that's an abuse of discretion under 403.

[00:12:34] Speaker 01:
Well, because

[00:12:37] Speaker 01:
We weren't allowed to put in anything.

[00:12:38] Speaker 01:
He did not offer you can put in something else.

[00:12:40] Speaker 01:
He just said, you're not doing this, period.

[00:12:42] Speaker 01:
I'm not saying that your honor's wrong about the 403 issue.

[00:12:47] Speaker 01:
I am saying that I don't think that this was the proper way that it was handled in the court below.

[00:12:52] Speaker 01:
Okay, so now we come to the issue about whether or not this other person was the actual shooter.

[00:12:57] Speaker 01:
So that's similar to this kind of evidence of our client being factually innocent.

[00:13:02] Speaker 01:
Well, in Smitty, this court in particular stated that it was entirely appropriate to put in evidence that this other person was the actual shooter.

[00:13:10] Speaker 01:
And we cited that in our reply brief.

[00:13:12] Speaker 01:
We cited the exact quote out of the court, that that was the best way to prove the favorable termination.

[00:13:20] Speaker 01:
I tried to prove it in that way as well, and the judge didn't allow it.

[00:13:24] Speaker 00:
You were allowed, to some degree, to cross-examine about the evidence that Munoz was the shooter, weren't you?

[00:13:32] Speaker 01:
Not about the other shooter.

[00:13:35] Speaker 01:
Not in detail, and it was very, very much limited.

[00:13:38] Speaker 01:
There was a motion in Lemony which precluded that.

[00:13:41] Speaker 01:
And to be honest with you, we were on

[00:13:44] Speaker 01:
on our toes in this case, concerned.

[00:13:47] Speaker 01:
We did not want to take any chances whatsoever because the judge made it clear not to.

[00:13:52] Speaker 01:
And instead, in Smitty, the court stated, perhaps most persuasively, the plaintiff argued that Varney and Knuckles failed to investigate other suspects adequately, including two former boyfriends named John.

[00:14:11] Speaker 01:
and then it talks about the plants that also argued that the investigation of John Scrogan was deficient.

[00:14:17] Speaker 01:
We didn't get to allege those things.

[00:14:19] Speaker 01:
Mr. Munoz was on a list of twelve other people that were potentially from Officer Maldonado.

[00:14:26] Speaker 01:
given to the officers in this case that actually did the investigation.

[00:14:31] Speaker 01:
They didn't investigate those other twelve people that were on the list, including Mr. Munoz.

[00:14:35] Speaker 01:
They basically focused on our client, and that was it.

[00:14:38] Speaker 01:
And so we wanted to show that it was Mr. Munoz who actually was the actual shooter, according to all the evidence in the other proceeding, in the habeas corpus proceeding.

[00:14:47] Speaker 01:
The judge basically found it was more likely than not him, and the judge in this case did not allow us to do that at all.

[00:14:53] Speaker 00:
Why would that have been relevant?

[00:14:54] Speaker 00:
I get the, you know,

[00:14:56] Speaker 00:
You had a list of 12 suspects and you didn't look at the other 11.

[00:14:59] Speaker 00:
That seems relevant.

[00:15:00] Speaker 00:
But why is subsequently developed evidence in a different proceeding in the absence of some reason to believe that the officer

[00:15:08] Speaker 00:
should have known about that.

[00:15:10] Speaker 00:
Why would any of that be relevant to probable cause?

[00:15:13] Speaker 01:
We were here twice before and one of the issues was whether the investigation was adequate.

[00:15:18] Speaker 01:
That was what the court said in the previous decision, I believe, and that was one of the issues to be tried.

[00:15:22] Speaker 01:
And therefore, not only is the investigation an issue, but also with regards to whether or not

[00:15:28] Speaker 01:
There was, you know, circumstantial evidence that they should have brought up about probable cause that maybe it was this person and not that person.

[00:15:34] Speaker 01:
They should have identified that to the judge who issued the warrant.

[00:15:39] Speaker 01:
There's a whole host of reasons why that's relevant.

[00:15:41] Speaker 01:
And even Smitty said that was most persuasively the argument that was supposed to be made at the trial in Smitty.

[00:15:51] Speaker 01:
So I would suggest that undoubtedly it was relevant that Smitty Court found it to be relevant.

[00:15:55] Speaker 01:
To say that it's not relevant on the issue of probable cause when that's the identical issue that was handled in Smitty would be, respectfully, I would have to disagree with that.

[00:16:10] Speaker 01:
Now I want to talk about the issue about the wrongful conduct on this supposed interview with Mr. Jenkins that we had in the prison.

[00:16:18] Speaker 01:
Because I think that's an extremely important issue, because credibility at trial is the only thing the council has.

[00:16:24] Speaker 01:
If you lose your credibility at trial, you've lost your case in trial.

[00:16:29] Speaker 01:
And there's no doubt, Mr. Barrett's been practicing a lot longer than me, but I've been practicing a long time too.

[00:16:35] Speaker 01:
And to say that if you interview a witness,

[00:16:40] Speaker 01:
You're in between the rock and the hard place.

[00:16:42] Speaker 01:
You go and interview the witness and that's when the witness is, you know, a few weeks later he's deposed and changes his story from 20 years ago.

[00:16:50] Speaker 01:
It's your somehow fault and you bring that before the jury.

[00:16:54] Speaker 01:
By the way, the defense have no cases on this showing that it's correct.

[00:16:57] Speaker 01:
There's cases all over that we cited showing that it's incorrect to do that.

[00:17:01] Speaker 01:
to insinuate wrongdoing on a part of plaintiff's counsel because they interviewed a witness.

[00:17:06] Speaker 03:
Well, so you either commit malpractice and you don't... Your argument about what the other side said about this or the introduction of the evidence?

[00:17:14] Speaker 01:
What the other side said.

[00:17:15] Speaker 03:
There was no evidence of us committing... Well, no, there was evidence introduced that before the recantation, counsel met with the witness, correct?

[00:17:22] Speaker 01:
We did meet with the witness.

[00:17:23] Speaker 03:
Right.

[00:17:24] Speaker 03:
That evidence was put in front of the jury.

[00:17:26] Speaker 01:
Correct.

[00:17:27] Speaker 03:
Okay.

[00:17:27] Speaker 03:
So evidence was admitted of a meeting, but no evidence was admitted of the substance of the meeting, correct?

[00:17:33] Speaker 03:
Correct.

[00:17:34] Speaker 03:
Okay.

[00:17:35] Speaker 03:
So is your objection to the introduction of that evidence or to an argument that the other side made based on that evidence?

[00:17:41] Speaker 01:
It's to both.

[00:17:43] Speaker 01:
Okay.

[00:17:43] Speaker 03:
Because you cannot... Oh, sorry.

[00:17:44] Speaker 03:
I want to take them both separately.

[00:17:47] Speaker 03:
With respect to introduction of the evidence, you wanted to bring out at trial that this witness had recanted his previous statement.

[00:17:56] Speaker 03:
Correct?

[00:17:58] Speaker 01:
Well, that's correct.

[00:18:00] Speaker 03:
Okay.

[00:18:00] Speaker 03:
And so the other side wanted to show that right before the recantation there was a meeting with counsel for the plaintiff.

[00:18:07] Speaker 01:
That's what they wanted to show.

[00:18:08] Speaker 03:
Okay.

[00:18:09] Speaker 03:
Why isn't that relevant?

[00:18:10] Speaker 01:
Because that is an inference that counsel did something wrong.

[00:18:14] Speaker 03:
That's not an inference.

[00:18:15] Speaker 03:
That's just evidence.

[00:18:17] Speaker 03:
That's just evidence that immediately before the recantation, something happened.

[00:18:22] Speaker 03:
Now, they may have made an improper argument based on that.

[00:18:25] Speaker 03:
I don't know.

[00:18:26] Speaker 03:
That's why I want you to address the argument issue separately.

[00:18:29] Speaker 03:
But why aren't the events that occurred directly before recantation evidence with respect to the

[00:18:38] Speaker 03:
validity of a recantation?

[00:18:39] Speaker 01:
Were you prevented from putting on evidence about what occurred during that meeting?

[00:18:55] Speaker 01:
Was I gonna test in front of the jury was I was gonna was I gonna testify in the case to well I don't know I don't think by that time it would have made a difference in the witness testify that the Essentially no one had ever asked him before Correct correct.

[00:19:10] Speaker 01:
That's correct and yet the defense took that still even though that was the evidence the defense took that still and argued that there was impropriety and

[00:19:17] Speaker 03:
What was his argument?

[00:19:18] Speaker 03:
Tell me the argument he made that you think requires reversal.

[00:19:22] Speaker 01:
It's very detailed in the briefs.

[00:19:28] Speaker 01:
We quoted it.

[00:19:35] Speaker 01:
During closing our argument, on page 28 of our reply brief, we quoted it at the bottom.

[00:19:41] Speaker 01:
And these claims are now based on the assertion that Mr. Jenkins was coerced.

[00:19:46] Speaker 01:
Now, Mr. Jenkins, you'll remember, he changed his testimony only after he and Mr. Mia were both at the Calipatria Strait Prison.

[00:19:54] Speaker 01:
Well, there was no evidence of that.

[00:19:55] Speaker 01:
He might have changed it years before.

[00:19:56] Speaker 01:
No one saw him for 20 years.

[00:19:58] Speaker 01:
And then only after Mr. Mia's attorneys, these two gentlemen pointing at us, went and had a private meeting with him.

[00:20:07] Speaker 01:
Only then did he change his testimony.

[00:20:11] Speaker 01:
Okay, and then, plaintiff then said Jenkins voluntarily came forward to clear Mia.

[00:20:17] Speaker 01:
Will you be the judge of that?

[00:20:19] Speaker 01:
He only came forward after this private meeting between the two attorneys, only after plaintiff and Jenkins were in Calipatria prison raises some questions.

[00:20:30] Speaker 03:
I looked at that, that's why I was concerned that you said that you had been accused of subordinating perjury, as opposed to them just

[00:20:39] Speaker 03:
setting forth the timeline and letting the jury reach its own conclusions.

[00:20:43] Speaker 03:
You do agree that counsel did not accuse anybody of supporting perjury.

[00:20:48] Speaker 03:
If you say, for example... You agree the council did not accuse anybody of subboarding perjury?

[00:20:53] Speaker 01:
I don't agree with that.

[00:20:54] Speaker 03:
So you think that's an accusation of subboarding perjury?

[00:20:56] Speaker 01:
I believe that's circumstantial evidence.

[00:20:58] Speaker 01:
That's how you prove it.

[00:21:00] Speaker 01:
You say they went into this meeting and he changed his testimony.

[00:21:04] Speaker 01:
That's how you prove subboarding perjury.

[00:21:06] Speaker 01:
So something must have happened.

[00:21:08] Speaker 01:
He's not saying nothing happened during this meeting.

[00:21:10] Speaker 01:
He's not saying council was allowed to interview him.

[00:21:11] Speaker 01:
He's saying they went into this meeting and all of a sudden the guy changed his testimony.

[00:21:16] Speaker 01:
I mean, that's pretty direct, if you ask me.

[00:21:21] Speaker 01:
I apologize.

[00:21:23] Speaker 01:
Maybe I'm wrong in not seeing things correctly, but I would say that if you're a criminal prosecutor and you say those things, a jury can easily convict two attorneys of suborning perjury if the attorneys are on trial for that, based on that testimony.

[00:21:36] Speaker 01:
How else are you going to prove it?

[00:21:38] Speaker 03:
I think if this was evidence of supporting perjury, you'd get a directed verdict in favor of the defendants.

[00:21:44] Speaker 03:
There's no evidence.

[00:21:45] Speaker 01:
There's no evidence about what was said.

[00:21:48] Speaker 01:
I hope so.

[00:21:49] Speaker 01:
But at the same time, you have to remember that you're dealing with jurors who don't understand it.

[00:21:53] Speaker 01:
They always think they're suspicious of everybody.

[00:21:57] Speaker 01:
Is that fair?

[00:21:58] Speaker 01:
Let's clear up the suspicion and have a trial based on the merits.

[00:22:02] Speaker 00:
Thank you.

[00:22:03] Speaker 00:
So we've taken you past your time, but we will give you two minutes for rebuttal.

[00:22:07] Speaker 00:
OK, sorry.

[00:22:07] Speaker 00:
Thank you.

[00:22:19] Speaker 00:
Mr. Gilbert.

[00:22:23] Speaker 02:
Thank you.

[00:22:24] Speaker 02:
May it please the court.

[00:22:26] Speaker 02:
Kevin Gilbert for defendants and appellees.

[00:22:29] Speaker 02:
This case involves the wrongful death of a shooting of an individual.

[00:22:34] Speaker 02:
At issue in the case involves immiscibility of key evidence, specifically about gang evidence, about prior arrest, and about testimony and evidence related to the detective's investigations.

[00:22:46] Speaker 02:
In order to put this in the proper perspective, we need to start with a factual discussion of the actual shooting.

[00:22:52] Speaker 02:
The shooting occurred when an individual who was part of the gang standing at the gang house where the shot caller for the 204th Street gang had been congregating.

[00:23:03] Speaker 02:
One of the individuals left that gang gathering, walked across the street and shot an individual.

[00:23:10] Speaker 02:
That was the facts that was given to these detectives.

[00:23:14] Speaker 02:
The detectives understood and were provided from the start of the case that this was originated from a gang residence where a gang hangout, where the gang congregates in a neighborhood where there had been a number of gang-related murders, specifically African-American and Latinos fighting where Latinos had been killing African-Americans.

[00:23:34] Speaker 02:
That information was known throughout the entirety of the investigation.

[00:23:39] Speaker 02:
That was started on day one, and it continued through the entirety of it.

[00:23:43] Speaker 02:
More importantly, that was the information upon which the detectives based their decision that probable cause existed, and which the court, which signed the Ramey warrant, ultimately looked at.

[00:23:56] Speaker 02:
Specifically on that point, it's important to note that plaintiffs, excuse me, the Ramey warrant actually contained a detailed discussion of the 204th Street gang, the interaction of the gang, the history of the shootings, and what led to the discussion and the identification of plaintiff Mia as the actual shooter in this case, or at least the accused shooter in this case.

[00:24:19] Speaker 03:
Can I ask you an unrelated question?

[00:24:23] Speaker 03:
We have somebody here who we now know.

[00:24:26] Speaker 03:
has been adjudicated wrongfully convicted.

[00:24:29] Speaker 03:
Does he have any remedies against, other than this lawsuit, against the state or the county?

[00:24:37] Speaker 02:
So Your Honor, the answer is somewhat.

[00:24:40] Speaker 02:
There are statutory remedies.

[00:24:41] Speaker 02:
For example, under the Factual Innocence Statute, plaintiff was allowed to and in fact did apply for and receive monetary payments in the amount of several hundreds of thousands of dollars.

[00:24:52] Speaker 02:
But there are immunities that are calling to place.

[00:24:56] Speaker 02:
And if he can prove that the conviction was secured by false evidence or undue influence, then he absolutely would have a remedy.

[00:25:03] Speaker 02:
Right.

[00:25:04] Speaker 03:
And I'm talking about aside from this lawsuit.

[00:25:07] Speaker 03:
This lawsuit says I was arrested without probable cause and therefore I'm entitled to several damages.

[00:25:14] Speaker 03:
However this lawsuit turns out, it does seem to me the state of California did wrong by this person and that he deserves

[00:25:22] Speaker 03:
some recompense, and I'm trying to figure out whether he has other evidence of getting it.

[00:25:26] Speaker 02:
And he's received recompense.

[00:25:27] Speaker 02:
There has been a monetary payment from the state to plaintiff, but that is a separate legal issue that is... I understand.

[00:25:34] Speaker 03:
I was curious.

[00:25:35] Speaker 03:
It's not relevant to this position in this case.

[00:25:37] Speaker 02:
Thank you, Your Honor.

[00:25:39] Speaker 02:
So, if I may, the evidence then is focused on the investigation, on the Ramey war, what's presented.

[00:25:46] Speaker 02:
That included not only discussion of the gang evidence, but also the discussion of the prior arrest.

[00:25:52] Speaker 02:
Now, we've heard a lot about the prior arrest, and the evidence of the prior arrest cannot form the base probable cause.

[00:25:57] Speaker 02:
But it wasn't the prior arrest that was significant.

[00:26:00] Speaker 02:
It was the facts underlying that arrest.

[00:26:03] Speaker 03:
What do you do with the limiting instruction on that?

[00:26:06] Speaker 03:
So I agree.

[00:26:07] Speaker 03:
I think I agree with you that this is relevant to the mix of facts that go into determining probable cause.

[00:26:16] Speaker 03:
And I'm inclined to think that the trial judge didn't abuse his discretion in letting it in.

[00:26:22] Speaker 03:
But the instruction doesn't tell the jury that it's not enough, that the prior arrest and gang evidence themselves are not enough to establish probable cause.

[00:26:33] Speaker 03:
And I went back and found

[00:26:35] Speaker 03:
the portion of the record where counsel asked for an instruction of that effect and the judge said no.

[00:26:41] Speaker 03:
Why shouldn't the limiting instruction have told the jury?

[00:26:45] Speaker 03:
You may use this as a fact, but in and of itself, it's not enough.

[00:26:49] Speaker 02:
So there's at least two, if not three, issues that go to that.

[00:26:52] Speaker 02:
First is, what was requested on the limiting instruction was a very specific phrase, this is not enough.

[00:26:58] Speaker 02:
A legal argument, not a legal principle, not a neutral case site, just this is not enough.

[00:27:03] Speaker 02:
But isn't that an accurate legal?

[00:27:05] Speaker 02:
No, Your Honor, it's not.

[00:27:06] Speaker 03:
You think that both the gang membership and arrest

[00:27:08] Speaker 03:
would be enough in and of themselves to establish probable cause?

[00:27:12] Speaker 03:
That would fly a foul of Wesby.

[00:27:14] Speaker 02:
By itself, it depends on the totality of circumstances we're looking at.

[00:27:17] Speaker 02:
But in this case, in this case?

[00:27:19] Speaker 02:
That becomes a factual question and it becomes one from the, it can.

[00:27:22] Speaker 03:
Really?

[00:27:23] Speaker 03:
So if that was the only evidence of probable cause, they arrested him because he was a gang member and had a previous arrest, wouldn't we find

[00:27:32] Speaker 03:
as a matter of law that there was a probable cause?

[00:27:35] Speaker 02:
Your Honor, you would have to look at Wesby, and Wesby specifically says that the divide and conquer technique where you take each individual element and say this isn't enough, this isn't enough, is improper.

[00:27:44] Speaker 02:
And Wesby actually chastised courts from going through that kind of analysis.

[00:27:49] Speaker 02:
What our court did here, our trial court, was instead to say, we're going to address this in multiple instructions.

[00:27:56] Speaker 02:
We have an instruction on probable cause where the court actually set forth the specific elements of the two crimes.

[00:28:05] Speaker 02:
Went through and said, here is the elements.

[00:28:07] Speaker 02:
Then there was two additional instructions.

[00:28:08] Speaker 02:
I believe they were 18 and 19.

[00:28:11] Speaker 02:
where they then go one step further and say, here's the elements of the crimes from malicious prosecution and false arrest that were being prosecuted.

[00:28:18] Speaker 02:
So the jury then had another instruction on, this is the definition of probable cause.

[00:28:24] Speaker 02:
And then there was a fourth instruction, which was the limiting instruction, which then said, you cannot use this for anything except probable cause.

[00:28:33] Speaker 02:
And then there was a very clear legal definition

[00:28:36] Speaker 02:
instruction on this is what probable cause is and specifically what it is where the elements in these crimes those other instructions plaintiffs council acquiesced to and in fact at no time did plaintiffs council ever request separate instruction so there was never a separate instruction that talks about the totality of the evidence and how whether probable cause by itself on this one issue would or would not be so that was waived and furthermore

[00:29:05] Speaker 02:
Instructional questions about modifications of instructions are viewed under abusive discretion rather than de novo.

[00:29:12] Speaker 02:
So the abusive discretion standard is what we would be looking at here.

[00:29:15] Speaker 02:
But going back to the actual facts here, the gang infant and the prior arrest and the gang evidence was all in the Ramey warrant.

[00:29:26] Speaker 02:
Plaintiff is the one who actually introduced all of that.

[00:29:28] Speaker 02:
In fact, at supplemental excerpts of the record 143 is the Ramey warrant that actually goes through and articulates out the discussion of the probable cause.

[00:29:39] Speaker 02:
Ironically, it was Plaintiff that requested and sought its introduction at trial.

[00:29:44] Speaker 02:
That's at 9 ER 1695.

[00:29:48] Speaker 02:
So Plaintiff is the one that decided to actually introduce that record to the jury

[00:29:53] Speaker 02:
publicize it and go forth and explain it.

[00:29:57] Speaker 02:
But that is exactly the evidence that the officers relied upon in their investigation for improbable cause.

[00:30:04] Speaker 02:
Turning back to the arrest, the arrest was relevant for multiple reasons.

[00:30:09] Speaker 02:
Plaintiff Mia, in this case, had claimed

[00:30:12] Speaker 02:
I live in Carson.

[00:30:14] Speaker 02:
I don't frequent this area.

[00:30:15] Speaker 02:
I have no gang involvement.

[00:30:17] Speaker 02:
I was never in the area.

[00:30:18] Speaker 02:
I had nothing to do with it.

[00:30:20] Speaker 02:
So the facts leading to the prior arrest, a video which depicted Mia, admittedly grainy, was unclear, was not conclusive evidence, testimony that identified him but inconclusive, and a similar fact pattern, a Latino individual

[00:30:38] Speaker 02:
gang relations or gang ties and gang activities attacking and threatening an African American just a block or two away from where this specific murder occurred and in a neighborhood where plaintiff Mia said he did not go.

[00:30:54] Speaker 02:
showed the officers that there were facts to suggest that Mia actually did associate in this neighborhood, that he was frequented there, that he did participate in gang activities.

[00:31:06] Speaker 02:
That coupled with Officer Maldonado's identification of a number of gang members.

[00:31:11] Speaker 02:
all of which were investigated, all of which were included in photos to the witnesses, and all of the witnesses, well let me be clear, Jenkins specifically identified Mia.

[00:31:24] Speaker 02:
He specifically identified him to the detectives during the preliminary hearing and again during the criminal trial.

[00:31:31] Speaker 00:
I take the point on the other side to be that

[00:31:34] Speaker 00:
All of that, the evidence of the underlying facts behind the prior arrest, that he was in the area and seen there and so forth, is relevant.

[00:31:47] Speaker 00:
But the fact of the arrest itself,

[00:31:50] Speaker 00:
doesn't add very much to that evidence and is prejudicial and so why under 403 shouldn't the fact of the arrest have been excluded?

[00:32:12] Speaker 02:
So the answer, Your Honor, is that the arrest showed the basis of probable cause.

[00:32:17] Speaker 02:
It showed that the officers had looked at totality of the evidence and believed that there was a sufficient basis to arrest and prosecute.

[00:32:24] Speaker 02:
And it also showed this is why we have him in the system.

[00:32:27] Speaker 02:
This is the evidence that shows us that he's linked to the gang.

[00:32:31] Speaker 02:
Here's the documentation of him.

[00:32:32] Speaker 02:
This is the first prong of the

[00:32:35] Speaker 02:
linked to being a gang member to the 204th gang.

[00:32:38] Speaker 02:
So Maldonado has this information.

[00:32:40] Speaker 02:
He's the gang detective that specializes on the 204th Street gang.

[00:32:44] Speaker 02:
So it's the tie of the information together, not simply saying, hey, we've seen him.

[00:32:48] Speaker 02:
He's accused.

[00:32:49] Speaker 02:
We've seen him and he's accused.

[00:32:50] Speaker 02:
We've arrested him.

[00:32:51] Speaker 02:
We documented him.

[00:32:52] Speaker 02:
We tracked the 403.

[00:32:53] Speaker 02:
Here's the photograph that shows the scar on the face, that shows the similarities in the measurements.

[00:32:58] Speaker 02:
that shows he had a weapon that matches the description of the weapon used to kill Hightower.

[00:33:04] Speaker 02:
So it's all of those facts combined.

[00:33:06] Speaker 03:
Again, it goes back to Wesby.

[00:33:08] Speaker 03:
I'm trying to get back to Judge Miller's question.

[00:33:11] Speaker 03:
Yes.

[00:33:11] Speaker 03:
It seems to me you were maybe well been entitled to show that he's been, officers knew he'd been previously arrested.

[00:33:19] Speaker 03:
But you put in much more than that.

[00:33:22] Speaker 03:
You put in a lot of facts surrounding the previous arrest, correct?

[00:33:26] Speaker 02:
That's right.

[00:33:26] Speaker 02:
Because they went to what the officers knew, what the officers used to base their decision on probable cause.

[00:33:33] Speaker 02:
And notably, all of this evidence, all of it, the gangs, the ties, the prior allegations, were admitted during the criminal trial that led to the conviction in this case.

[00:33:44] Speaker 02:
It was known by the district attorney when they decided to prosecute.

[00:33:48] Speaker 02:
It was known by the judge that signed the Ramey warrant.

[00:33:52] Speaker 02:
So the jury, one of the allegations was that the arrest warrant and the prosecution was induced only by fraud or undue influence or by fabricated evidence.

[00:34:03] Speaker 02:
So the jury was entitled to see the very same evidence and presentation that was presented to that magistrate or that judge at the trial level, that was presented to the district attorney and was presented to the criminal jury.

[00:34:16] Speaker 03:
Well, and that's why I'm asking this question and maybe I haven't asked it correctly.

[00:34:20] Speaker 03:
I understand what your clients knew.

[00:34:25] Speaker 03:
I'm trying to figure out whether or not the record shows that this evidence was the facts of the arrest was presented to either the prosecuting attorney or the magistrate that issued the initial.

[00:34:39] Speaker 03:
Yes, it was, Your Honor.

[00:34:41] Speaker 02:
There was a meeting between the detectives, Uli and Vanderhoek, where they went and spent several hours with the district attorney, presented the case, presented what's called a murder book, which had the prior arrest report from the initial incident, the facts of it, the reports, all of that data, as well as everything else that leading up to the current prosecution related to the current shooting.

[00:35:05] Speaker 02:
So all of that was included in that.

[00:35:07] Speaker 03:
Whether or not it establishes probable cause is a separate issue.

[00:35:10] Speaker 03:
Correct.

[00:35:11] Speaker 03:
One of the issues at this trial was whether or not the prosecuting attorney had been provided with full information.

[00:35:20] Speaker 03:
That's correct.

[00:35:21] Speaker 03:
So you think it went to that issue?

[00:35:22] Speaker 02:
Not only did it go to that issue, but also as to the judge who signed the rainy warrant,

[00:35:27] Speaker 02:
If you look at the Ramey warrant, which is something like experts of record 143, you'll find that it actually includes references to an attachment.

[00:35:36] Speaker 02:
The attachments were not admitted in this trial at that time, in our civil trial.

[00:35:41] Speaker 02:
But the Ramey warrant did include attachments, which included that prior arrest warrant, excuse me, the prior arrest report, the factual situation, and circumstances leading up to that arrest.

[00:35:51] Speaker 02:
So all of that was then presented to the trial judge who signed the Raimond warrant.

[00:35:58] Speaker 03:
Can you help me with the record in this case?

[00:36:00] Speaker 03:
Yes, sir.

[00:36:01] Speaker 03:
It seems to me, and maybe miscounting, that at some point there were three people who identified the plaintiff in this case as the perpetrator.

[00:36:12] Speaker 03:
More or less.

[00:36:13] Speaker 03:
More or less.

[00:36:14] Speaker 03:
One in a somewhat shaky fashion, one in a more definitive fashion.

[00:36:19] Speaker 03:
Was the third one the person who later was recanted?

[00:36:25] Speaker 03:
I'm trying to figure out where he fits into that category.

[00:36:28] Speaker 02:
So there was three people.

[00:36:30] Speaker 02:
There was Jenkins, who was the positive identification, who positively identified him, and then recanted.

[00:36:37] Speaker 02:
There was two others.

[00:36:38] Speaker 03:
And one you, I think, quite candidly describe in your brief, is it?

[00:36:44] Speaker 03:
There's more shaky than the others.

[00:36:46] Speaker 03:
The other two were both not definitive.

[00:36:49] Speaker 02:
Okay.

[00:36:49] Speaker 02:
One was, and it could be, I can't remember the exact words, one was, I think that's him, but I'm not certain, but it looks like him.

[00:36:57] Speaker 02:
Then there was another witness, unrelated to this, that were unknown to the detectives, that came forward ten years later and said, hey, I heard so-and-so else was the shooter.

[00:37:07] Speaker 02:
And I was in the area and I saw and I think it was this other person.

[00:37:11] Speaker 02:
So that's what led to the ultimate overturning.

[00:37:14] Speaker 03:
Right now I'm focusing on at the time that the plaintiff was charged.

[00:37:19] Speaker 03:
there were at least three people who had at least provided incriminating evidence.

[00:37:27] Speaker 03:
Two of them were somewhat shaky and the third one was the guy who later recanted.

[00:37:31] Speaker 03:
Was definitive and rock solid.

[00:37:33] Speaker 03:
Right, but who later recanted.

[00:37:35] Speaker 02:
Yes.

[00:37:36] Speaker 02:
I'm just trying to make sure I have the facts right.

[00:37:38] Speaker 02:
So in addition to the physical characteristics matching all the descriptions and the one positive ID and two tentatives,

[00:37:45] Speaker 02:
all the other detective information was known to detectives, which is what's being challenged.

[00:37:50] Speaker 02:
Moving to the next issue on factual innocence.

[00:37:53] Speaker 00:
Before you get to that, because you're running low on time, can I just ask you about the jury selection?

[00:37:58] Speaker 00:
Yes.

[00:37:59] Speaker 00:
And in particular, so I want to be sure I understand the sequence correctly.

[00:38:04] Speaker 00:
The jury is impaneled and sworn.

[00:38:06] Speaker 00:
And then juror number eight starts crying.

[00:38:10] Speaker 00:
And the decision is made to excuse juror number eight.

[00:38:13] Speaker 00:
And at that point,

[00:38:15] Speaker 00:
The rest of the veneer is like still there in the courtroom because they haven't gone home yet.

[00:38:23] Speaker 02:
So we impanel a jury.

[00:38:27] Speaker 02:
We lose jury.

[00:38:27] Speaker 02:
So Juror 1 does the, I don't, I can't understand you.

[00:38:32] Speaker 02:
And so we go inside bar in the hallway outside the jury.

[00:38:36] Speaker 02:
We have a discussion.

[00:38:37] Speaker 02:
We come back in.

[00:38:39] Speaker 02:
Then we reopen.

[00:38:40] Speaker 02:
Then Juror 8.

[00:38:42] Speaker 02:
is who they're sworn juror a razor hand and she's having physical reaction she's literally shaking quivering and there's actually discussion in the record where height actually cite that for the record and that's it uh... five e are eighty seven through eighty nine i believe where and the judge actually asked plaintiffs counsel do you agree defense characterization all of this happens and

[00:39:08] Speaker 02:
The hallway outside the presence of the jury at sidebar so the jury cannot physically jury cannot physically see what's going on But I guess I'm just wondering because I this happens after the jury was sworn right after yeah immediately after the jury and the the other perspective jurors who were there like

[00:39:25] Speaker 02:
Why are they still there don't they normally leave after the jury is sworn haven't even got that far yet literally We swear the jury and she instantly I see raises the issue so the jury's still in the box we go in the hall

[00:39:39] Speaker 02:
we come back in and just continue with selection.

[00:39:42] Speaker 02:
So there's a few minutes while we're in the hallway, but there's no recess.

[00:39:48] Speaker 02:
We don't break for a day.

[00:39:50] Speaker 02:
We don't bring back more jurors.

[00:39:52] Speaker 02:
All the jurors that are in the box remain in the box.

[00:39:55] Speaker 02:
All the other prospective jurors in the audience remain.

[00:39:57] Speaker 00:
So why is it appropriate to allow

[00:40:02] Speaker 00:
Setting aside the question of whether you should replace juror number eight once you excuse her, and I'm not questioning the decision to excuse her, why is it appropriate to reopen peremptories when you have a jury that was impaneled, that was sworn, and start letting the parties exercise peremptories against

[00:40:23] Speaker 00:
non-unrelated members of the jury that had been sworn.

[00:40:29] Speaker 00:
Where is that allowed for in the rules?

[00:40:30] Speaker 02:
It's absolutely the discretion of the trial court, first of all.

[00:40:33] Speaker 02:
And second of all, there was no new preemptories.

[00:40:35] Speaker 02:
And plaintiff waived this argument.

[00:40:37] Speaker 02:
Not only did they not object at the time, but they actually exercised preemptories thereafter.

[00:40:42] Speaker 02:
So they themselves availed themselves of that.

[00:40:45] Speaker 03:
And specifically... Let me ask you about that, because I'm curious about what the record shows on that.

[00:40:51] Speaker 03:
So everybody agrees the jury ought to be excused.

[00:40:55] Speaker 03:
I can't remember.

[00:40:56] Speaker 03:
Well, certainly they're not saying on appeal the judge erred by excusing the shaking juror.

[00:41:00] Speaker 02:
Oh, there's no argument to that, and there's no argument that the jury, as impaneled, was biased.

[00:41:05] Speaker 03:
I understand that.

[00:41:06] Speaker 03:
I'm just trying to figure out the procedural.

[00:41:09] Speaker 03:
So the juror gets excused, and then the judge says, I think on his own, neither side seems to have suggested it, I'm going to let you go back and exercise peremptories again.

[00:41:20] Speaker 03:
He says that, and in fact... Does the plaintiff

[00:41:25] Speaker 03:
I think of him as a defendant because he was charged.

[00:41:27] Speaker 03:
Was this the plaintiff in this case?

[00:41:28] Speaker 03:
Say, no, Judge, that's wrong.

[00:41:31] Speaker 03:
We shouldn't do that.

[00:41:32] Speaker 02:
No, the statement is something along the lines of, I'll remain silent.

[00:41:36] Speaker 02:
I'll wave comments on it.

[00:41:38] Speaker 02:
I'll see if I can find it exactly.

[00:41:39] Speaker 03:
I'm just trying to figure out whether that, whether or not this, it may not matter if the ultimate jury didn't have some disqualifying person on it, but I'm just trying to figure out whether this issue was preserved

[00:41:53] Speaker 02:
Appeal no the actual statement was I'm going to pass on it for now, and that's at 5 er 887 was from plaintiffs counsel so so far as the judge knew There was no objection made to this Unusual I think judge Miller's probably correct unusual procedure correct if I could hit one I know my that's I mean I'm looking at I'm going to pass I'm looking at that page and I mean maybe the point is

[00:42:21] Speaker 00:
There's there's no affirmative objection, but one could read that as just I'm going to pass on that he that he's not objecting to the excusal of number eight not that he's saying he's okay with reopening peremptories, but But I guess your point is it there's no affirmative objection to And he did in fact exercise one Okay, I mean do you

[00:42:51] Speaker 00:
Maybe it's different because nothing had happened.

[00:42:54] Speaker 00:
I mean, if this had happened after the first witness had testified, do you think it would still be within the discretion of the district court?

[00:43:01] Speaker 02:
No.

[00:43:01] Speaker 02:
I think at that point it would be inappropriate.

[00:43:03] Speaker 02:
You would dismiss the witness and you would go with seven member jury.

[00:43:06] Speaker 02:
At this point, we had not even started.

[00:43:08] Speaker 02:
The jury had not been instructed.

[00:43:10] Speaker 02:
We hadn't even started with opening statements.

[00:43:13] Speaker 02:
Nothing had happened.

[00:43:13] Speaker 02:
There literally was a span of seconds between when this happens and continuing with jury selection.

[00:43:20] Speaker 02:
So in the record, you see the jury sworn, but in reality, it's one continuous progression.

[00:43:27] Speaker 02:
Nobody even leaves the courtroom.

[00:43:29] Speaker 02:
If I could hit one more point quickly, I know my time is up.

[00:43:32] Speaker 00:
But very briefly, yeah.

[00:43:34] Speaker 02:
If the court was to overturn the verdict, we would ask that the court look at qualified immunity.

[00:43:39] Speaker 02:
The detectives have asked multiple times for qualified immunity.

[00:43:43] Speaker 02:
It was in the prior motions for summary judgment, but was not addressed simply because both of the two prior trial judges found that the actions of the officers were objectively reasonable and there was a lack of causation to show conviction.

[00:43:56] Speaker 02:
Because of that, the officers have been denied the opportunity for qualified immunity.

[00:44:00] Speaker 02:
When the second Court of Appeal decision remanded the matter, it gave very clear instructions to our trial judge that this will be tried on the malicious prosecution claim.

[00:44:10] Speaker 02:
Obviously, I'm paraphrasing.

[00:44:12] Speaker 02:
Because of that, the officers have been denied qualified immunity.

[00:44:15] Speaker 02:
And as the Supreme Court has said, it's immunity from suit.

[00:44:18] Speaker 02:
So if this was remanded, and I don't believe it should be, we would ask for that.

[00:44:24] Speaker 02:
Any questions?

[00:44:25] Speaker 00:
No, I think not.

[00:44:26] Speaker 00:
Thank you.

[00:44:31] Speaker 01:
Rebuttal.

[00:44:32] Speaker 01:
Thank you so much.

[00:44:32] Speaker 01:
May it please the court.

[00:44:34] Speaker 01:
First of all, on this issue of the jury issue, at page 46 and 47 of our opening brief,

[00:44:40] Speaker 01:
I am quoted as saying, I don't think it's fair to open up the whole case again.

[00:44:46] Speaker 01:
I disagree with that because I don't think it's fair to actually allow them to have a peremptory.

[00:44:51] Speaker 01:
Unless there was information that defense counsel that really substantially deviated what was what he's already done When he what he has already been known in the case and is this because there were there were two reopenings Are what you're quoting took place after the second one or the first one that's I believe the first one and then on the second one

[00:45:19] Speaker 01:
I was saying in there that about at 5 ER 1040 to 1043, he indicates he's going to reopen again.

[00:45:30] Speaker 01:
And I was saying, well, I was objecting to the person getting dismissed in the first place, the upset juror.

[00:45:38] Speaker 03:
But you don't raise that on the field.

[00:45:41] Speaker 01:
Well, we did raise that on appeal.

[00:45:43] Speaker 03:
On appeal, do you raise that the juror should not have been dismissed?

[00:45:45] Speaker 01:
Well, we stated in my objection was she shouldn't have been dismissed.

[00:45:50] Speaker 03:
No, no, in your appellate brief, do you make an argument that the juror shouldn't have been dismissed?

[00:45:56] Speaker 01:
To be honest with you, my time is so short.

[00:45:58] Speaker 01:
I don't think you did.

[00:45:58] Speaker 01:
I can't recall.

[00:45:59] Speaker 01:
But I think more importantly, I think this jury thing was extremely unusual.

[00:46:05] Speaker 01:
But I think if you go back really to the prior arrest issue, we're dealing with California law.

[00:46:09] Speaker 01:
California law says the prior arrest should not be admitted, period.

[00:46:14] Speaker 01:
There's a case that came out in 2017.

[00:46:17] Speaker 01:
We cited it in our reply brief at page 10.

[00:46:21] Speaker 01:
Not only the Remer's case from 1970, California Supreme Court, but the People versus Maxwell case.

[00:46:26] Speaker 01:
And even though this is cases

[00:46:28] Speaker 01:
in this court and the law in this circuit might be different.

[00:46:32] Speaker 01:
This arose in California.

[00:46:34] Speaker 01:
It was a California arrest.

[00:46:35] Speaker 01:
The case was filed in California.

[00:46:37] Speaker 01:
So therefore, the California law is the one that should be followed.

[00:46:40] Speaker 01:
So I respectfully have to disagree strongly with counsel's claim that this evidence of all these things about this arrest was relevant and admissible.

[00:46:49] Speaker 01:
I don't think that it could possibly be fair.

[00:46:52] Speaker 01:
When you hear all this stuff in front of it and a jury hears all this stuff,

[00:46:56] Speaker 01:
It's virtually impossible for a jury to set aside all these things and try to focus on the reality.

[00:47:01] Speaker 01:
The reality of...

[00:47:02] Speaker 01:
is this.

[00:47:03] Speaker 01:
There was one witness, Mr. Jenkins, who provided evidence of probable cause.

[00:47:07] Speaker 01:
I asked the court continually to please limit it to only whether Mr. Jenkins provided it or not.

[00:47:11] Speaker 01:
The court decided to not do that and allow everything else.

[00:47:15] Speaker 01:
Now, if Mr. Jenkins said no probable cause, the officers admitted there would be no probable cause.

[00:47:21] Speaker 01:
I don't understand why we're trying all these other issues when that was the only issue in the case that gave them probable cause pursuant to both detectives' admission

[00:47:31] Speaker 01:
trial and in deposition now one more thing I apologize this video that supposedly was around no one ever saw that in this record because it doesn't exist

[00:47:42] Speaker 01:
There's no video showing my client there at this supposed scene never became a part of this record.

[00:47:47] Speaker 01:
So to argue that, I don't believe is correct.

[00:47:50] Speaker 01:
It's not fair.

[00:47:51] Speaker 01:
It's out of the record.

[00:47:52] Speaker 01:
Now, Jenkins did say that the two detectives were pointing the finger at my client in that lineup.

[00:48:04] Speaker 01:
Now if you look at the picture that defendants have in their excerpts, my client's the only one in blue, my client's the only one with a scar on his face, and my client's the only one in the top middle, which according to our expert is the key position that's generally selected by people.

[00:48:20] Speaker 01:
Now Munoz has a scar on the correct side of the face, his picture is somewhere in this record, and he looks exactly like the shooter.

[00:48:28] Speaker 01:
No scar on anyone else in that six pack.

[00:48:34] Speaker 01:
Now, the expert says, oh, you could easily cure this.

[00:48:37] Speaker 01:
This is what he says.

[00:48:39] Speaker 01:
Put a tape on everyone's face in that area so they all at least look the same.

[00:48:45] Speaker 01:
That makes it fair.

[00:48:47] Speaker 01:
That makes a lineup fair.

[00:48:50] Speaker 01:
Because the key in this was whether or not there was a scar on our client's face.

[00:48:55] Speaker 01:
So he's in the center box.

[00:48:57] Speaker 01:
If I could have just one more minute.

[00:49:01] Speaker 01:
The murder book.

[00:49:03] Speaker 01:
Nobody knew what was in that murder book, because they didn't keep a safe copy of that murder book.

[00:49:08] Speaker 01:
So what they say is in it, I disagree with.

[00:49:11] Speaker 01:
There was no evidence of what exactly was in the murder book, and there was no evidence of exactly what was told to that DA, because the two officers said they did not remember what they told of that DA at the meeting.

[00:49:23] Speaker 01:
That's what the record is continually stating.

[00:49:26] Speaker 01:
So what they told the prosecuting the filing deputy is not in the record.

[00:49:31] Speaker 01:
They don't know what they told them.

[00:49:34] Speaker 01:
And I think that kind of sums it up.

[00:49:41] Speaker 01:
If your honors need anything else, I'm happy to try my best.

[00:49:44] Speaker 01:
I know it's a little bit quick here and tight to do it in 20 minutes.

[00:49:48] Speaker 01:
I did the best I could.

[00:49:49] Speaker 01:
I apologize.

[00:49:50] Speaker 00:
Thank you, counsel.

[00:49:51] Speaker 00:
We thank both counsel for their arguments.

[00:49:53] Speaker 00:
And the case is submitted.

[00:49:55] Speaker 00:
And we are adjourned.

[00:50:06] Speaker 02:
This court for this session stands adjourned.