[00:00:00] Speaker 02:
24-3147, Coons v. Board of County Commissioners.

[00:00:04] Speaker 02:
Mr. Cooper, you may proceed.

[00:00:06] Speaker 00:
Thank you, Your Honor.

[00:00:09] Speaker 00:
May it please the Court, David Cooper, on behalf of the appellants in this case.

[00:00:13] Speaker 00:
This is a wrongful conviction, a civil rights case, and an interlocutory appeal from a denial of qualified immunity.

[00:00:20] Speaker 00:
The plaintiff's claims that are at issue in this case

[00:00:24] Speaker 00:
are count one, which is a due process violation.

[00:00:27] Speaker 00:
There are two parts to that due process claim.

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The first is a Brady type claim, suppression or withholding of evidence.

[00:00:36] Speaker 00:
The second is a fabrication claim, claiming that Detective Michael fabricated evidence regarding a van, location of a van and an alibi defense.

[00:00:49] Speaker 00:
Second count is a malicious prosecution claim claiming that there was not probable cause to arrest, charge, or try Peacoons for the murder of Kathleen Schroll.

[00:01:03] Speaker 00:
I'd like to take those in reverse order, beginning with the second claim first and that the district court aired by finding that there was no probable cause

[00:01:17] Speaker 00:
The undisputed historic facts that are actually set out in the district court's opinion show there was probable cause to arrest Mr. Coons, to charge him with the murder of Kathleen and Carl Schroll, and his conviction for the murder of Kathleen Schroll.

[00:01:36] Speaker 04:
Are we looking at probable cause or arguable probable cause?

[00:01:41] Speaker 00:
Both.

[00:01:43] Speaker 00:
And we advanced that argument both in the alternative, but it is the appellant's position that as a matter of law, there was probable cause to charge Mr. Coons with these crimes.

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And that probable cause existed at the time of his arrest and never went away.

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And those undisputed historic facts are Kathleen Schroll's,

[00:02:10] Speaker 00:
dying declaration to her mother, Elizabeth Horton, identifying Pete Coons as the killer.

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And then immediately following up that call, say identifying Pete Coons as the killer, Kathleen Schroll was found dead lying face up in her living room with a contact wound to the back of her head.

[00:02:34] Speaker 02:
Well, I understand that that evidence, but

[00:02:37] Speaker 02:
It led to an arrest and conviction.

[00:02:40] Speaker 02:
But the theory here is that the decision makers had not been disclosed relevant material evidence that would bear on a finding of probable cause, which is what Brady is all about.

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And so I think Judge Robinson's order says, well, if the decision maker had the facts,

[00:03:07] Speaker 02:
there may not have been sufficient probable cause to make the arrest or the conviction.

[00:03:13] Speaker 02:
What's wrong with that?

[00:03:15] Speaker 00:
Well, I read Judge Robinson's case the same way you just articulated, Judge.

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And the argument is, and our position is, and we believe it to be correct, is that there was still probable cause.

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Considering those additional facts and factors that

[00:03:33] Speaker 00:
um the plaintiff claims and the court says there's evidence to credit with being withheld um there's still probable cause and and that's that's what i was uh going through which is again the dying declaration carl and kathleen were both dead of a gunshot wound okay we we understand four corners of warren and see the evidences in there but how do you how do you account for this or what weight you put on it

[00:04:03] Speaker 01:
medical examiner originally ruled murder, and then when was given additional facts, the sorts that we're talking about, not in the Four Corners, said would have changed his mind.

[00:04:14] Speaker 01:
That sounds like it had a big effect on probable cause determination.

[00:04:20] Speaker 00:
Well, to answer your question, Judge Phillips, the

[00:04:25] Speaker 00:
Reasons that Dr. Mitchell changed his opinion from homicide to suicide has nothing to do with the information available to or communicated by or withheld by detectives Michael or Garrison.

[00:04:43] Speaker 04:
Was it the gunshot residue on the left hand that came in way late?

[00:04:49] Speaker 00:
Correct, but neither Garrison nor Michael were CSI detectives.

[00:04:54] Speaker 00:
They didn't collect that.

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They didn't interpret that.

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What they didn't do is they didn't ask for follow-on testing of the gunshot residue from the KBI lab.

[00:05:08] Speaker 00:
As an aside, that testing would not have been available at that time anyway, but that is not pertinent and not material to the argument that I'm advancing.

[00:05:18] Speaker 00:
The argument that we're making is that there still was probable cause, even if you consider these things that were withheld or allegedly withheld, that those things are the KBI check forgery report.

[00:05:36] Speaker 00:
That's information not available to or attributable to Detective Michael Regarison.

[00:05:41] Speaker 00:
That was Detective Block's case, and he's been dismissed from the case.

[00:05:46] Speaker 00:
So first it's error to say, hey, to fault Detective Michael and Garrison on the probable cause with respect to the forgery report, which they never knew of.

[00:05:59] Speaker 04:
What about the suspicious activity report with regard to her embezzlement from her employer?

[00:06:09] Speaker 00:
That and the quick trip video or the two items that the court hung his hat on in terms of saying that in terms of saying that there might not have been probable cause, that's not the appropriate standard.

[00:06:24] Speaker 00:
There might not have been, there was probable cause.

[00:06:27] Speaker 00:
If you assume those facts to be true, meaning that had Detective Michael

[00:06:36] Speaker 00:
passed on the suspicious activity report from the credit union and passed on the fact that they reviewed the quick trip video and the quick trip video did not corroborate the statement to the daughter that Pete and Kathleen had had an encounter at the quick trip that doesn't make the probable cause go away.

[00:07:02] Speaker 00:
When you add those in, there's still probable cause to believe Pete Coons killed Kathleen Schroll.

[00:07:09] Speaker 04:
Well, I guess the view of the district court was that that withheld evidence would have called into question Kathleen's credibility.

[00:07:22] Speaker 00:
I agree with that.

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But that is not the standard for probable cause.

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It's the facts and circumstances known to the arresting officer

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that would cause a reasonable person to believe that the crime had been committed.

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And crediting the suspicious activity report, there's disputed evidence, but on summary judgment, we have to take plaintiff's version of the evidence and we do.

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So the suspicious activity report should be considered in the probable cause analysis.

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The quick trip video should be considered in the probable cause analysis.

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and neither of them make probable cause go away.

[00:07:59] Speaker 00:
There was probable cause all along and the probable cause standard does not require that a detective discredit or disbelieve or to give more credit to the suspect's denial of the claim or the alibi witnesses.

[00:08:18] Speaker 04:
I'm perplexed as to why you wanna argue probable cause as opposed to arguable probable cause because

[00:08:27] Speaker 04:
It's my understanding that the standard in this context is arguable probable cause, which is an easier burden for you.

[00:08:36] Speaker 00:
I grant you that.

[00:08:37] Speaker 00:
There's an argument that we forfeited the qualified immunity argument.

[00:08:41] Speaker 00:
We don't believe we forfeited that argument, but there's a very practical reason for that judgment cue, which is with respect to the probable cause analysis,

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versus arguable probable cause analysis.

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That's the difference between no constitutional violation and qualified immunity as it's not clearly established.

[00:09:05] Speaker 00:
The unified government would not be entitled to judgment if the hats hung on the arguable probable cause standard as opposed to the probable cause standard.

[00:09:16] Speaker 04:
Thank you.

[00:09:17] Speaker 02:
Does it matter that, you know,

[00:09:21] Speaker 02:
The suppressed evidence flowed through into the trial as opposed to just the probable cause for the initial arrest and preliminary hearing.

[00:09:34] Speaker 02:
On the Brady claim it does.

[00:09:36] Speaker 00:
And long story.

[00:09:40] Speaker 00:
Well, and the jury knew this case was tried twice.

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That evidence was admitted in both trials.

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Both juries convicted Carl of Kathleen's murder.

[00:09:51] Speaker 00:
knowing that that quick trip video existed.

[00:09:56] Speaker 04:
But they didn't, at that time, the jury didn't have, did they have the suspicious activity, the embezzlement information?

[00:10:03] Speaker 04:
No, that's all post trial.

[00:10:06] Speaker 04:
And they didn't have the gunshot residue on her left hand either, right?

[00:10:10] Speaker 00:
That's all true.

[00:10:11] Speaker 00:
All of that evidence emerged

[00:10:15] Speaker 00:
during the 1507 or the habeas corpus proceedings that got the conviction vacated in 2019.

[00:10:23] Speaker 00:
So that evidence was not evidence known at the time for the I've burned more than half my time with respect to that argument.

[00:10:38] Speaker 00:
And so Judge McHugh coming back to close the loop on the

[00:10:45] Speaker 00:
arguable probable cause.

[00:10:47] Speaker 00:
We do argue in the alternative, the easier standard of arguable probable cause, which would give both Michael and Garrison qualified immunity from the malicious prosecution claim, but it would leave the underlying claim, the Minnell claim against the unified government standing.

[00:11:09] Speaker 00:
With respect to the Brady claims,

[00:11:13] Speaker 00:
Because I separate the Brady and the fabrication claims, but let me address the fabrication claim first, because we're going to run short on time.

[00:11:21] Speaker 00:
First off, that only involves Detective Michael, not Detective Garrison.

[00:11:26] Speaker 00:
And that's undisputed by plaintiff in the briefing.

[00:11:30] Speaker 00:
So she, at least, is entitled to judgment on that claim as well.

[00:11:37] Speaker 00:
With respect to the Brady claim, there's two asks here.

[00:11:42] Speaker 00:
The district court made an error on the materiality determination because there's 12 pieces of withheld evidence that was argued on the 1507, the habeas claim.

[00:11:58] Speaker 00:
Only two of those lie at Detective Garrison and Michael's foot.

[00:12:05] Speaker 00:
And that's the FBI forgery report.

[00:12:07] Speaker 00:
Well, the court determined

[00:12:10] Speaker 00:
The FBI forgery report, which was unknown to them, and the fact of the quick trip video, I think it's legal error for the district court to have concluded that was withheld evidence because it wasn't withheld.

[00:12:22] Speaker 00:
That evidence found its way in front of the jury in both trials.

[00:12:26] Speaker 00:
So I don't know why that should be considered in part of the materiality determination when it was in fact not withheld.

[00:12:33] Speaker 00:
Now, they don't have the video, but that's a failure to preserve claim, not a withholding claim.

[00:12:40] Speaker 00:
So that's the first part of the ask and that's the legal question there.

[00:12:49] Speaker 00:
There's a deeper issue with respect to the signatory requirement or the bad faith requirement that we argue should and has to be applied to a Brady claim or a due process claim under

[00:13:07] Speaker 00:
both Brady and the Youngblood standard.

[00:13:10] Speaker 00:
And that argument is simple, which is the United States Supreme Court has always said, and all the circuit courts agree that the Brady obligation is an obligation on the prosecutor, not the police officers.

[00:13:27] Speaker 00:
And when you apply Youngblood and Daniel, they say on their face that when you're trying to make a due process claim,

[00:13:38] Speaker 00:
for money damages under 1983 and trying to lay that constitutional violation at the feet of a police officer, there's gotta be evidence of bad faith on the part of the police officer, which is lacking here.

[00:13:53] Speaker 00:
Now I acknowledge the Bledsoe case, I acknowledge the Gilchrist case where this court has said you can make a Brady claim, but the argument is and remains

[00:14:06] Speaker 00:
that that is an untold decision.

[00:14:08] Speaker 00:
Those cases, first, they're on motions to dismiss, not summary judgment.

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And second,

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neither applies or requires a bad faith requirement which Youngblood and Daniel say is required for a due process claim against police officers.

[00:14:27] Speaker 04:
Well, we require recklessness at least, right?

[00:14:31] Speaker 00:
Which I believe is the legal question here that there's no evidence here of recklessness.

[00:14:37] Speaker 02:
Didn't Judge Robinson say that was a disputed fact at this point?

[00:14:46] Speaker 00:
I think she said that on listing out the facts and she says from those facts, I think a jury can conclude.

[00:14:57] Speaker 00:
So I want to be clear that I am aware of which side of the fence I have to be on.

[00:15:03] Speaker 00:
I accept the facts.

[00:15:04] Speaker 00:
I don't accept the legal conclusion that a jury can

[00:15:07] Speaker 00:
could breach the decision of recklessness.

[00:15:11] Speaker 00:
Okay.

[00:15:11] Speaker 01:
I'm confused by that because one case that you don't cite in your brief is Johnson versus Jones or that line of cases that says if the district court finds a genuine issue of material fact, we're not touching them unless there's an exception which are difficult to meet, which you haven't argued.

[00:15:30] Speaker 01:
And so if the district court says I find a genuine issue of material fact,

[00:15:35] Speaker 01:
on that.

[00:15:36] Speaker 01:
That's just game over, isn't it?

[00:15:38] Speaker 00:
I disagree with the applicability of that.

[00:15:41] Speaker 01:
Why haven't you cited Johnson versus Jones and dealt with that?

[00:15:45] Speaker 00:
I don't have a reason other than focusing on the issues that I did focus on, Judge, but to address your question as to why the judge

[00:15:59] Speaker 00:
Judge Robinson found that there were material disputed facts with respect to whether Thad Jones did or didn't actually give them that suspicious activity report and whether they knew that.

[00:16:12] Speaker 00:
We accept that as a fact, but when you spot the fact that, all right, we accept that as a fact, that still doesn't get over the threshold of recklessness because for the arguments that we did make in the brief,

[00:16:26] Speaker 00:
Which is, even considering that, the materiality of that evidence would not have been apparent to either Michael or Garrison at the time.

[00:16:39] Speaker 00:
And for that reason, it's either not a due process violation, or at least the law is not clearly established in that regard.

[00:16:48] Speaker 02:
All right.

[00:16:49] Speaker 02:
Your time has expired.

[00:16:51] Speaker 02:
Let's hear from Mr. Ainsworth.

[00:16:53] Speaker 03:
May it please the court.

[00:16:55] Speaker 03:
What was known to the defendant officers at the time that the preliminary hearing was held was that there is no sign of forced entry at the house.

[00:17:05] Speaker 03:
There's no sign of a struggle.

[00:17:07] Speaker 03:
Nothing was stolen from the house.

[00:17:10] Speaker 03:
Kathleen was killed by her own gun, which was left at the scene of the crime, lying by the left side of her body.

[00:17:19] Speaker 03:
Kathleen was left-handed, which was known to the defendants, as Judge Robinson noted in her opinion.

[00:17:27] Speaker 03:
There is blood spatter only on Kathleen's left hand,

[00:17:32] Speaker 03:
DNA testing on the gun revealed that there was only one person's DNA on the gun that was Kathleen's, including on the barrel of the gun and on the trigger of the gun.

[00:17:48] Speaker 03:
Also known to the defendants was that at the time that Kathleen was killed,

[00:17:55] Speaker 03:
She was embezzling thousands of dollars from her employer in a very not sophisticated plot that was soon to be discovered, including the Friday before she was killed, she took a check out of her bank so that it would not be drawn upon her account.

[00:18:21] Speaker 03:
And that was soon to be revealed.

[00:18:23] Speaker 03:
Immediately upon her not showing up to work, the plot was revealed.

[00:18:28] Speaker 03:
She died on April 7th.

[00:18:30] Speaker 03:
By April 9th, a report was created by Thad Jones documenting the embezzlement scheme, how it went about, how she tried to cover it up.

[00:18:41] Speaker 03:
That suspicious activity report was provided to the defendants on April 14th, and that was known to them.

[00:18:50] Speaker 03:
What was also known to the defendants

[00:18:53] Speaker 03:
If you take the facts as the court must at this juncture in the light most favorable to the plaintiff was that Mr. Coons' van was at his home and visible to defendant Michael when he came to the home the early morning hours of April 7th.

[00:19:12] Speaker 03:
When Detective Michael testified that he could not see the van where the ruts were,

[00:19:21] Speaker 03:
He was providing false information.

[00:19:24] Speaker 03:
If you accept plaintiff's allegations to be true, which the court must at this point.

[00:19:33] Speaker 03:
All of these facts come to the conclusion

[00:19:36] Speaker 03:
that there was probable cause for Mr. Coons' arrest, but following that, that probable cause dissipated.

[00:19:44] Speaker 03:
And certainly this court could not conclude that no reasonable juror could find that probable cause dissipated.

[00:19:52] Speaker 03:
And under the Pierce case, which was argued before Judge Timkovich, and the Deloach case, as well as others,

[00:20:01] Speaker 03:
Probable cause can dissipate when an officer can be held liable when information material to that probable cause determination is withheld or fabricated, thus contaminating the process.

[00:20:16] Speaker 03:
And so it's no use saying that there was a probable cause finding when the defendant officers manipulated that process.

[00:20:24] Speaker 02:
Is that an objective standard that we would determine de novo, whether there was

[00:20:31] Speaker 02:
even with the excluded evidence, whether there was still probable cause or arguable probable cause.

[00:20:41] Speaker 03:
So it's a mixed question of fact and law.

[00:20:43] Speaker 03:
The question of fact is determined by Judge Robinson below.

[00:20:46] Speaker 03:
This court would review the legal issue de novo.

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And here,

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Below, the defendants made no separate argument about arguable probable cause.

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And we point that out in our brief.

[00:21:00] Speaker 03:
In reply, the defendants have no explanation for why they did not forfeit the argument about arguable probable cause.

[00:21:08] Speaker 03:
They made the same argument about probable cause.

[00:21:12] Speaker 03:
Well, they made an argument about probable cause.

[00:21:14] Speaker 03:
And then in regard to qualified immunity, they simply repeated the boilerplate law.

[00:21:21] Speaker 03:
and didn't touch the issue.

[00:21:24] Speaker 02:
But why shouldn't we as a panel find probable cause here?

[00:21:31] Speaker 02:
even after reviewing the record as a whole?

[00:21:34] Speaker 03:
Because probable cause, as this court's deloach decision notes, is a quintessential jury question.

[00:21:42] Speaker 03:
Whether the evidence adduced was sufficient to meet the standard of probable cause is a complex one that requires weighing of the evidence, and it should be left to the jury.

[00:21:55] Speaker 03:
And here we have ample evidence that had the court

[00:22:00] Speaker 03:
making the decision to, you know, continue the prosecution against Mr. Coons, had the court known that

[00:22:10] Speaker 03:
Kathleen was embezzling thousands of dollars from her employer, was in severe financial trouble, was about to have that plot be discovered, and that Mr. Coons did not have the opportunity to commit the crime as was represented to the court.

[00:22:31] Speaker 03:
Detective Michael told the court that when he was there in the early morning hours, Mr. Coons' van was gone.

[00:22:37] Speaker 03:
And we have to credit the record.

[00:22:40] Speaker 03:
The record is that Detective Michael testified that the van was not in the place where the family had indicated it would be, which is the ruts.

[00:22:51] Speaker 03:
So the whole issue about whether it could have been somewhere else is irrelevant to the issue.

[00:22:57] Speaker 03:
Detective Michael testified that the van was not where it was alleged to have been by Mr. Coons and the family.

[00:23:06] Speaker 03:
And thus, because of that, the court was under the impression that Mr. Coons had the means and no explanation for why he was gone from his home at 4.30 in the morning on the day that the victim was killed.

[00:23:21] Speaker 03:
That was powerful evidence of guilt.

[00:23:25] Speaker 03:
And you remove that,

[00:23:27] Speaker 03:
and you're left with the only evidence on one side of the ledger is Kathleen's dying declaration to her mom, not to 911, in which the very first thing she says to her mom is that Pete stole the lawnmower from our house.

[00:23:47] Speaker 03:
I mean, that was her very first statement in the call when Pete was supposedly in the home killing

[00:23:54] Speaker 03:
her husband and herself.

[00:23:57] Speaker 03:
And then you find out that Kathleen is killed with her own gun, which was left at the scene of the house with her DNA on it.

[00:24:05] Speaker 03:
We can have arguments all day long about whether it suffices or not, but this is an interlocutory appeal.

[00:24:14] Speaker 03:
No reasonable juror could look at these facts and say, without a doubt, their probable cause continued even knowing that Kathleen was embezzling money, had reason to kill herself, that Kathleen had been lying about Pete Coons' threats to do her harm.

[00:24:33] Speaker 03:
and that Pete Kunz's van was actually at his home at the early morning hours immediately after the crime was committed.

[00:24:41] Speaker 03:
He was a 50-year-old guy with no criminal history.

[00:24:44] Speaker 03:
There is plenty of reasons that a court, a jury could find that there was no, that probable cause had dissipated.

[00:24:54] Speaker 02:
Are you relying on, you're relying on Pierce versus Gilchrist for the

[00:24:57] Speaker 02:
malicious prosecution claim as clearly established law.

[00:25:01] Speaker 03:
That's one of the cases.

[00:25:02] Speaker 03:
Also, the Deloach decision, which cites a number of other 10th Circuit cases, including Stringer and Marlin.

[00:25:13] Speaker 02:
What's the clearly established case for the due process claim?

[00:25:18] Speaker 03:
For the due process claim, Bledsoe is one case that says as of 1995, it was clearly established that officers could not withhold evidence or fabricate evidence.

[00:25:30] Speaker 03:
And this case arises in 2008.

[00:25:33] Speaker 03:
There's a line of cases from the Johnson versus City of Cheyenne that cites

[00:25:45] Speaker 03:
a number of decisions talking about a police officer acting with deliberate or reckless intent can be held liable, including Tiscarino, which I think Judge Timkovich was also argued before, Your Honor, and the 10th Circuit's Weber case.

[00:26:08] Speaker 03:
And so to just

[00:26:11] Speaker 03:
May I move to the due process claim?

[00:26:14] Speaker 02:
You may.

[00:26:15] Speaker 03:
Thank you.

[00:26:17] Speaker 03:
So there's a few things to say here.

[00:26:21] Speaker 03:
The Supreme Court's Daniels decision simply says that negligence is not enough, which is undisputed by any court.

[00:26:30] Speaker 03:
The 10th Circuit has a long history of case law that says all that a plaintiff need prove is that the

[00:26:39] Speaker 03:
intent, the central requirement is that the officer acted recklessly, which Judge Robinson noted in her decision at page 37, which the defendants ignored wholly.

[00:26:50] Speaker 03:
And she cited a number of decisions, including the Johnson decision that, and the cases cited therein, that the defendants ignored wholly.

[00:27:00] Speaker 03:
This is the first time in this argument that the defendants have acknowledged that blood-sowing Gilchrist

[00:27:07] Speaker 03:
who argue against them.

[00:27:11] Speaker 03:
And the fact that those decisions are decided on a motion to dismiss standard rather than summary judgment is a distinct distinction without a difference.

[00:27:20] Speaker 03:
We're talking about the legal standard to be applied.

[00:27:23] Speaker 03:
It doesn't change at the motion dismiss stage or the summary judgment stage.

[00:27:28] Speaker 03:
This is well settled law.

[00:27:30] Speaker 03:
There is no argument to the contrary.

[00:27:33] Speaker 03:
And we have

[00:27:35] Speaker 03:
In regard to the materiality analysis, the district court determined that standing alone, the SAR report was material.

[00:27:47] Speaker 03:
It allowed the prosecutor to say that Kathleen had no reason to do anything other than keep on living.

[00:27:56] Speaker 03:
And Mr. Coons had nothing to rebut that argument with.

[00:28:01] Speaker 03:
And because that was material,

[00:28:05] Speaker 03:
All plaintiff need to show is that the quick trip video was withheld by the defendants.

[00:28:12] Speaker 03:
He need not show that the quick trip video was independently material to the outcome, because we assess materiality cumulatively.

[00:28:22] Speaker 03:
And we get that from the Supreme Court's Kyle's v. Whitley decision.

[00:28:25] Speaker 03:
The 10th Circuit has adopted that same analysis.

[00:28:31] Speaker 03:
and certainly it was withheld.

[00:28:34] Speaker 03:
And we're not talking- Didn't the officers testify about the video at trial though?

[00:28:38] Speaker 03:
Yeah.

[00:28:39] Speaker 03:
So Detective Michael testified about it, but there's a-

[00:28:44] Speaker 03:
Line of cases so look at old chief, the Supreme Court's decision old chief that says a prosecution does not have to stipulate to facts that the defense doesn't want it brought in the plaintiff may may bring its case to the jury in the ordinary natural way they would like to do.

[00:29:04] Speaker 03:
Meaning that if you have the best evidence, you don't need to rely on a speculation.

[00:29:11] Speaker 03:
You don't need to rely on what somebody's saying about the evidence.

[00:29:15] Speaker 03:
You can present that evidence itself.

[00:29:18] Speaker 03:
as the best evidence.

[00:29:21] Speaker 03:
And certainly the jury knew from Detective Michael's testimony that he had viewed this video.

[00:29:29] Speaker 03:
But if I'm trying the case as a criminal defense attorney, I want that video.

[00:29:34] Speaker 03:
I want to show without a doubt that what Kathleen and her credibility was crucial to the outcome of this trial, what Kathleen's

[00:29:47] Speaker 03:
statement, talking about a threat that happened two days before she was killed was false.

[00:29:53] Speaker 03:
And this was a closely balanced trial.

[00:29:56] Speaker 03:
They convicted Mr. Coons of Kathleen's murder, but acquitted him of Carl Scholl's murder.

[00:30:03] Speaker 03:
And so you have a, you know, a divided jury and anything that could have tipped that balance is Brady.

[00:30:12] Speaker 02:
We disagree with you about the video.

[00:30:15] Speaker 02:
Do you still have enough

[00:30:17] Speaker 02:
evidence to prove a Brady claim, enough evidence.

[00:30:24] Speaker 03:
Yes, because Judge Robinson, she found that the suspicious activity report was independently sufficient to be material to the outcome of the trial.

[00:30:35] Speaker 03:
And that's unassailable.

[00:30:37] Speaker 03:
There's no way you can look at the facts in this case where the defense is trying to present evidence, trying to argue that Kathleen killed herself.

[00:30:45] Speaker 03:
The prosecutor says she had no reason to kill herself.

[00:30:48] Speaker 03:
And there's every reason in the world when she's facing a felony indictment,

[00:30:52] Speaker 03:
and she's got financial hardship that was unknown to the plaintiff, to Mr. Coons during this criminal case, that is materiality because it could have changed.

[00:31:04] Speaker 03:
There's a reasonable probability that the outcome would have been different.

[00:31:08] Speaker 03:
This court doesn't have to decide that with certainty it would have changed the outcome.

[00:31:14] Speaker 03:
But so solely that no reasonable juror could find with certainty that it would not lead to a reasonable probability of a different result at trial.

[00:31:26] Speaker 03:
And that's a hard standard for Mr Cooper at this stage of the proceedings.

[00:31:32] Speaker 03:
We were supposed to go to trial in November 2024.

[00:31:36] Speaker 03:
This appeal has delayed that trial.

[00:31:39] Speaker 03:
I think we now have disputes of fact.

[00:31:42] Speaker 03:
Both sides are saying very different things.

[00:31:45] Speaker 03:
The only way to resolve those factual disputes is at a trial.

[00:31:49] Speaker 03:
And the law is clear.

[00:31:52] Speaker 03:
If there are no further questions.

[00:31:54] Speaker 02:
Thank you, counsel.

[00:31:56] Speaker 02:
Mr. Cooper, if you want 90 seconds, I'll give you a little bit of rebuttal since we ate into your time.

[00:32:03] Speaker 00:
Judge, I really only have, the closure is the prayer, which is that detectives Michael and Garrison didn't violate Mr. Kuhn's rights by withholding exculpatory evidence, or at least in the alternative, it's not clearly established.

[00:32:22] Speaker 00:
There was probable cause.

[00:32:25] Speaker 00:
We don't believe we forfeited the qualified immunity or the arguable probable cause standard.

[00:32:30] Speaker 00:
Those are addressed in both the opening and reply briefs, and StoneCipher itself is quoted in the reply brief as well.

[00:32:39] Speaker 00:
And then with respect to the fabrication claim, which we didn't address in any depth, I do need to address the fact that

[00:32:52] Speaker 00:
The facts are set forth in Judge Robinson's opinion as to what Detective Michael said and didn't say.

[00:33:00] Speaker 00:
And he did not say that the van was not at the house.

[00:33:04] Speaker 00:
What he said was, if the van was where Pete Coon says it was, I wouldn't have seen it from where I was standing.

[00:33:12] Speaker 00:
So those are my closing remarks.

[00:33:14] Speaker 00:
I regret we didn't get to meet in Denver.

[00:33:16] Speaker 00:
And thank you for your time.

[00:33:18] Speaker 02:
Thank you, counsel.

[00:33:18] Speaker 02:
We wish we could have been in Denver also.

[00:33:20] Speaker 02:
Your excuse and the case will be submitted.