[00:00:04] Speaker 02:
As counsel are getting settled in, I'll call the next case.

[00:00:08] Speaker 02:
It's Widener versus McHale, number 24, 1145.

[00:00:16] Speaker 02:
You may proceed.

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

[00:00:19] Speaker 04:
May it please the court?

[00:00:20] Speaker 04:
My name is Court Parkins.

[00:00:21] Speaker 04:
I represent the appellant in this case, Gary Widener.

[00:00:27] Speaker 04:
We're here today because

[00:00:30] Speaker 04:
One of the appellees, Claire McHale, is a pathological liar who manufactured a claim of sexual assault and was knowingly enabled by a detective to weaponize the criminal justice system against a former boyfriend.

[00:00:48] Speaker 04:
Despite those egregious facts,

[00:00:51] Speaker 04:
The lower court essentially found that Mr. Weiner had no viable legal avenue to relief for the immense harm that was done to him.

[00:01:01] Speaker 00:
The lower court... Well, I'm not sure that's what the ruling was.

[00:01:04] Speaker 00:
The ruling was it wasn't adequately... The theories that were advanced were not the legal avenue.

[00:01:11] Speaker 04:
Well, and I think... And that'll bring me to my first point in that they dismissed this at a very early level, at the 12b6 stage.

[00:01:21] Speaker 04:
That was an error for two distinct reasons.

[00:01:23] Speaker 04:
The first and foremost is that despite it being clear that the law requires the lower court to accept the factual pleadings and the complaint as true, the court didn't apply that standard.

[00:01:38] Speaker 04:
The court actually

[00:01:40] Speaker 04:
failed to take notice of specific allegations that were noted in the complaint.

[00:01:46] Speaker 04:
And actually, in terms of some of the allegations, the court essentially rejected them, which the court at that level is not permitted to do.

[00:01:56] Speaker 04:
And I'd separate this briefly for a moment into the two separate appellees, Ms.

[00:02:02] Speaker 04:
Ames and Ms.

[00:02:03] Speaker 04:
McHale.

[00:02:03] Speaker 04:
When you're looking at the detective, there's a couple notes in the court's opinion.

[00:02:09] Speaker 04:
I would direct the court to pages 16 and 17 of the appendix, which includes the amended complaint.

[00:02:16] Speaker 04:
The amended complaint clearly alleges that Detective Ames possessed

[00:02:24] Speaker 04:
information in the form of text messages, which was wholly exculpatory.

[00:02:29] Speaker 04:
That's clearly pled.

[00:02:33] Speaker 04:
The court then goes on to say, well, is it clearly pled?

[00:02:41] Speaker 02:
I mean, the court has to accept well-pled factual allegations.

[00:02:48] Speaker 02:
But it doesn't have to accept conclusions of law.

[00:02:53] Speaker 02:
or conclusory statements.

[00:02:55] Speaker 02:
That sounds like a conclusory statement.

[00:02:57] Speaker 02:
So does the complaint back it up and explore how this is totally exonerating?

[00:03:05] Speaker 04:
Well, I believe it does.

[00:03:07] Speaker 04:
I think... Well, what does it say about it?

[00:03:10] Speaker 04:
The complaint indicates that Ms.

[00:03:11] Speaker 04:
McHale presented this phone to defendant or appellee Ames and was showing her the text messages on the phone, cherry-picking ones that she believed no furthered her claim.

[00:03:26] Speaker 04:
But the complaint goes on to allege that defendant appellee Ames had the phone

[00:03:34] Speaker 04:
had the ability to look through it and that it contained exonerating information.

[00:03:39] Speaker 01:
Did Mr. Weidner have the same exonerating communication on his phone?

[00:03:44] Speaker 01:
Text between the two phones, I assume?

[00:03:46] Speaker 04:
Yes.

[00:03:47] Speaker 01:
He had those?

[00:03:48] Speaker 04:
Yes.

[00:03:48] Speaker 01:
Then why could he not, in his complaint, give us something other than a conclusion that it was exonerating?

[00:03:54] Speaker 01:
Why can't he give us details?

[00:03:56] Speaker 04:
Well, I think if you look at the appendix, a number of the messages were included in the sealed appendix and were before the court at the lower levels.

[00:04:02] Speaker 04:
They had the exonerating information.

[00:04:04] Speaker 04:
But we do talk about the exonerating information in the complaint.

[00:04:10] Speaker 00:
Point me to the paragraph.

[00:04:11] Speaker 04:
Sure.

[00:04:12] Speaker 04:
So if you go into, I believe it's in the appendix 16 through 17, paragraph 42 through 50, in that vicinity of the men in complaints, and also earlier when it talks about the content of the text messages, it specifically says that Ms.

[00:04:30] Speaker 04:
McHale-Whittingear basically said, you know, I went through six or seven months with the appellant,

[00:04:39] Speaker 04:
I was sexually assaulted on numerous occasions and there was never a single time that it was consensual.

[00:04:44] Speaker 02:
Well, I'm looking at those paragraphs.

[00:04:47] Speaker 02:
Where is there anything factual that's exonerating?

[00:04:52] Speaker 04:
So, Your Honor, if you go to the appendix, the amended complaint, specifically... You said 40 through 42, is that right?

[00:05:06] Speaker 04:
Yes, so if you go to, it also talks about the specifics of the text messages specifically that she had claimed that this was a, you know, six to seven month long ordeal where she was sexually assaulted in his hands numerous times and never

[00:05:31] Speaker 04:
and never at any point in time did she have consensual sex with him.

[00:05:37] Speaker 00:
You're jumping to something different.

[00:05:39] Speaker 00:
We're right now asking you to point us to the paragraphs in the amended complaint that show that the detective

[00:05:48] Speaker 00:
had knowledge that there were exculpatory emails on the phone and omitted that from the warrant affidavit.

[00:05:57] Speaker 04:
Sure.

[00:05:57] Speaker 04:
So if you go to Appendix 16, starting in paragraph 34 of the amended complaint, where 34 talks about

[00:06:07] Speaker 04:
You know, that she alleged this was a course of conduct.

[00:06:10] Speaker 04:
And she made numerous claims that force was used, specifically that there were pictures taken.

[00:06:17] Speaker 04:
She provided pictures of her bruises, and that he choked her to effectuate the sexual assault.

[00:06:24] Speaker 04:
And what it goes on to say is, what she specifically said was in the text messages, she's describing in the text messages how she likes having rough sex with him, that she calls... Again, you're jumping...

[00:06:37] Speaker 00:
The question isn't whether it existed on the phone.

[00:06:41] Speaker 00:
The question is whether the detective was aware of the exculpatory information and willfully excluded that information from the warrant affidavit.

[00:06:53] Speaker 04:
Well, and it is our position that she was aware of and that is put in the complaint.

[00:06:58] Speaker 00:
Where?

[00:06:58] Speaker 04:
If you go to Appendix 19, paragraph 68, specifically alleges that she knew that the information was false.

[00:07:11] Speaker 00:
Well, that's a legal conclusion.

[00:07:12] Speaker 00:
What facts?

[00:07:13] Speaker 00:
I mean, you don't have anything here that says that the detective saw these exculpatory emails

[00:07:23] Speaker 00:
and just decided, nonetheless, I'm going to get an arrest warrant against this guy.

[00:07:29] Speaker 04:
We believe that is, in fact, what she did.

[00:07:30] Speaker 04:
And at this point, we're at the 12b6 stage.

[00:07:35] Speaker 04:
We haven't been able to conduct discovery.

[00:07:38] Speaker 04:
And so the most we know now and can allege here is that

[00:07:43] Speaker 04:
The text messages were on the phone.

[00:07:44] Speaker 04:
That has been alleged.

[00:07:46] Speaker 04:
That the text messages were exonerated.

[00:07:48] Speaker 04:
That has been alleged, and the specifics of some of the text messages were laid out in the complaint.

[00:07:53] Speaker 04:
That McHale brought the cell phone to Detective Ames.

[00:07:58] Speaker 04:
That is pled in the complaint.

[00:07:59] Speaker 04:
That she opened it for her.

[00:08:01] Speaker 04:
That Detective Ames had the cell phone in her possession and in order to get her laboratory information.

[00:08:06] Speaker 04:
That has all been pled.

[00:08:09] Speaker 01:
Did the detective seek Mr. Widener's views on this?

[00:08:14] Speaker 01:
The detective did seek Mr. Widener's views.

[00:08:17] Speaker 01:
And what do we make of that?

[00:08:18] Speaker 01:
If he has the messages and all of this exonerating information and chooses not to provide it to the detective, does that matter?

[00:08:26] Speaker 04:
I think at that point, when you're talking about an ongoing criminal investigation, you're basically, you know, expecting the defendant who has a right to remain silent to make a statement at that point.

[00:08:37] Speaker 01:
So the answer is we shouldn't expect that.

[00:08:40] Speaker 01:
You should, and I... Even for purposes of this lawsuit.

[00:08:45] Speaker 04:
Yes, and I was criminal counsel on the lower case, so I can tell you, I think, from a matter of

[00:08:53] Speaker 04:
well-practiced criminal defense, it would be malpractice to turn over the information prior to trial, because they could just change the story and try to make it consistent with the information you have.

[00:09:04] Speaker 01:
I accept that, just asking the question.

[00:09:06] Speaker 01:
And the next question is, I guess I want to define terms a little bit.

[00:09:10] Speaker 01:
When you say exonerating, I assume that means did not rape.

[00:09:14] Speaker 04:
Yes.

[00:09:15] Speaker 01:
And yet, the detective certainly had the phone excerpts where, at line 473 of the second,

[00:09:22] Speaker 01:
Mr. Widener says, I am so sorry.

[00:09:24] Speaker 01:
I am so sorry for raping you, Claire.

[00:09:27] Speaker 01:
I am so sorry.

[00:09:28] Speaker 01:
Why is that not arguable with the probable cause all by itself?

[00:09:32] Speaker 04:
Well, I think first of all, I think that that is not something that was appropriately considered by the lower court at the 12b6 stage.

[00:09:38] Speaker 01:
Okay, well let's assume that it is because your complaint references it.

[00:09:42] Speaker 04:
Sure.

[00:09:42] Speaker 04:
So the calls, and our objection to the use of the calls is that you don't get from the cold transcript of the calls the essence of the call.

[00:09:54] Speaker 04:
Our position is that taken in its entirety when you listen,

[00:09:58] Speaker 04:
That's citing to about a 10-second clip on an hour-long call.

[00:10:02] Speaker 01:
I get that.

[00:10:03] Speaker 01:
I get that.

[00:10:03] Speaker 01:
And I get that in the first call there was talk about, if you're not going to talk to me about it, I may go find someone else.

[00:10:10] Speaker 01:
And I want closure.

[00:10:11] Speaker 01:
Those could lead to a statement like that.

[00:10:14] Speaker 01:
And you can argue, he's just trying to get rid of her, trying to quell the storm, even though it's not true or something.

[00:10:20] Speaker 01:
But if you're the detective and you have that, I am so sorry.

[00:10:24] Speaker 01:
I'm so sorry for raping you, Claire.

[00:10:27] Speaker 01:
How can that not be an arguable probable cause?

[00:10:29] Speaker 04:
Well, the detective wasn't going to solve the transcript.

[00:10:34] Speaker 04:
She had obviously heard it and listened to it.

[00:10:36] Speaker 04:
And so she had all the information regarding that and the problems with it.

[00:10:40] Speaker 04:
And again, this is what I'm saying.

[00:10:42] Speaker 04:
At this early stage, the 12b6 stage, our anticipation would be through discovery to have a psychiatric expert review those calls and render an opinion as to what's going on in the calls.

[00:10:54] Speaker 00:
If you take it claim by claim,

[00:10:56] Speaker 00:
The district court did what the district court's supposed to do, which is matched up your allegations with the elements of the claim.

[00:11:06] Speaker 00:
And for false arrest, it has to be without legal process.

[00:11:10] Speaker 00:
Would you agree where there's a warrant, it's with legal process?

[00:11:15] Speaker 04:
I do agree on that claim and not the other claims.

[00:11:17] Speaker 00:
Okay, so that one's gone.

[00:11:18] Speaker 00:
Yes.

[00:11:19] Speaker 00:
Okay.

[00:11:21] Speaker 00:
All right.

[00:11:21] Speaker 00:
And so what the court did is it looked through your allegations just like we've been trying to do here to see where you have alleged that it, the allegations of your complaint seem to say that Mikhail did not share with the detective the information that was exculpatory to your client.

[00:11:46] Speaker 00:
But in order for the detective to have intentionally falsified the warrant

[00:11:52] Speaker 00:
She's got to know, right?

[00:11:54] Speaker 00:
She's got to be aware of the exculpatory information.

[00:11:58] Speaker 04:
Well, we have, and as I indicated in paragraph 68, allege that, and I know it is somewhat of a general averment, but at this stage, at the 12b6 stage, states of mind can be, sorry.

[00:12:11] Speaker 00:
Paragraph 68, that's those criminal proceedings were instituted without probable cause with

[00:12:18] Speaker 00:
knowledge that no probable cause, is that what you're saying?

[00:12:21] Speaker 04:
With knowledge that the probable cause was based on lies.

[00:12:24] Speaker 04:
That she knew that Ms.

[00:12:25] Speaker 04:
McHale was lying.

[00:12:26] Speaker 00:
Yeah.

[00:12:26] Speaker 00:
I mean... And I mean, that may be a general affirmation, but at this stage it's certainly... That's a general affirmation.

[00:12:32] Speaker 02:
States of mind... You cited a couple of other paragraphs, and I'm wondering about this.

[00:12:39] Speaker 02:
In 35 and 36, 36 alleges that McHale

[00:12:47] Speaker 02:
The time she claimed had been raped, the phone contained evidence that she was asking plaintiff to come and have sex with her.

[00:12:59] Speaker 02:
Did Mr. Widener have access to Ms.

[00:13:03] Speaker 02:
McHale's phone to confirm that messages like that were there?

[00:13:10] Speaker 04:
He did not have access to her phone, but they were on his phone.

[00:13:16] Speaker 02:
when you say his.

[00:13:18] Speaker 02:
Mr. Weiner's cell phone.

[00:13:20] Speaker 02:
Yeah, but I guess, all right, all right.

[00:13:26] Speaker 04:
With that, I'd like to say bless you, moments of rebuttal.

[00:13:28] Speaker 04:
Thank you.

[00:13:45] Speaker 03:
My name is David Jaffa, and together with Evan House, we represent Ms.

[00:13:50] Speaker 03:
Claire McHale, who's in the courtroom in the front row on the appellee side of the courtroom.

[00:13:55] Speaker 03:
We also are, this morning, I'm also arguing on behalf of Detective Ames, who's aiding represented by Ms.

[00:14:01] Speaker 03:
Rachel Morris, who's sitting at the council table.

[00:14:03] Speaker 03:
She is the city attorney of the city of our valley.

[00:14:09] Speaker 03:
There is no reason why this complaint should not have been dismissed.

[00:14:15] Speaker 03:
It was poorly drafted.

[00:14:17] Speaker 03:
It does not allege any plausible facts that would lead to plausibly acceptable claims.

[00:14:27] Speaker 03:
In fact, the claims themselves, I'll dispatch with that right away, the claims themselves are all very cursory.

[00:14:32] Speaker 03:
They follow the jury instructions for each and every one of the claims.

[00:14:37] Speaker 03:
It is the paradigm of just repeating what's there in a cursory fashion.

[00:14:44] Speaker 03:
And I will say, too, that the defamatory statement that counsel for Mr. Widener began with is simply not true.

[00:14:51] Speaker 03:
These were not lies.

[00:14:53] Speaker 03:
Ms.

[00:14:53] Speaker 03:
McHale was victimized.

[00:14:56] Speaker 03:
She was raped.

[00:14:57] Speaker 03:
And she continues to be victimized through, A, the filing of the complaint in the district court and this appeal against a very well-written, very well-thought-out order by Judge Walden.

[00:15:09] Speaker 01:
Well, we know the criminal prosecution collapsed mid-trial, which is not ordinary, and we know that information was revealed right before it collapsed, and we know that that information likely could have been revealed by a more robust investigation.

[00:15:31] Speaker 01:
What do we make of all of that?

[00:15:34] Speaker 03:
I appreciate your asking, Judge Fultz.

[00:15:37] Speaker 03:
The answer to that is

[00:15:39] Speaker 03:
Even if it fell apart, the standard to that point and is alleged, one of the few allegations and complaint that happens to be so, the prosecutor obviously felt he couldn't meet his burden of proof for reasonable doubt, which in and of itself is a completely different question than probable cause, which is the element in malicious prosecution.

[00:16:01] Speaker 03:
But as far as the investigation goes, the fact is, based on the court's questions earlier to Mr. Parkins,

[00:16:09] Speaker 03:
That rests with Mr. Widener.

[00:16:13] Speaker 03:
As Mr. Parkins told you, Judge Phillips, they made a strategic decision, the value of which can be debated, not to turn over that information.

[00:16:22] Speaker 03:
As she set forth in her affidavit in support of the arrest warrant, Detective Ames specifically called on Mr. Widener.

[00:16:31] Speaker 03:
He refused to speak.

[00:16:32] Speaker 03:
She then spoke with counsel for Mr. Widener, who also told her they weren't going to speak.

[00:16:38] Speaker 03:
Now, in any criminal case, of course, he has the right not to come forward.

[00:16:42] Speaker 03:
But there's two major points over here.

[00:16:44] Speaker 00:
What about the complainant's phone?

[00:16:48] Speaker 00:
Couldn't the detective have said, let me look at all the conversations?

[00:16:54] Speaker 03:
Sure.

[00:16:54] Speaker 03:
And I believe she did.

[00:16:55] Speaker 03:
And she had the phone.

[00:16:57] Speaker 03:
But as we argue in the brief, it's not up to her to look at everything on the phone.

[00:17:03] Speaker 03:
She looked at the phone.

[00:17:04] Speaker 03:
They had messages.

[00:17:06] Speaker 03:
And apparently they discussed it, but that's not alleged in the complaint.

[00:17:10] Speaker 03:
What is alleged is she didn't do a thorough investigation.

[00:17:13] Speaker 03:
So what does that mean?

[00:17:14] Speaker 03:
She contacted Mr. Widener.

[00:17:17] Speaker 03:
And back to your question, Judge Phillips, Mr. Widener made a strategic choice not to turn over things.

[00:17:23] Speaker 03:
Now we all know, Fifth Amendment, he has the right not to incriminate himself, but number one, he wasn't in custody.

[00:17:29] Speaker 03:
Number two, he could have easily turned over those things if he wanted to.

[00:17:33] Speaker 03:
Again, strategic decision.

[00:17:34] Speaker 03:
So what's the consequence?

[00:17:35] Speaker 03:
The consequence is, in a civil case such as this, it most certainly can be used against him that he decided not to turn over that information.

[00:17:45] Speaker 03:
As in any criminal case, for instance, if a person is both being sued for whatever it is, let's say an employment situation, and he's being prosecuted for theft by way of example, he has the right, of course, not to answer up anything in the civil case, but he does so with consequences.

[00:18:03] Speaker 03:
Certainly his right to be free from incriminating statements in the criminal matter has to be respected and nothing can be commented about it.

[00:18:11] Speaker 03:
No inferences can be drawn.

[00:18:12] Speaker 03:
In a civil case, certainly negative inferences can be drawn by failing to answer.

[00:18:18] Speaker 03:
So when you ask about whether Miss Detective Ames did a thorough investigation, I think she is allowed to draw a negative inference against Mr. Widener at that point when he refuses to either talk to her or turn things over.

[00:18:33] Speaker 03:
Not only that, but in the preliminary hearing in Colorado, in Jefferson County, there was an opportunity, and in fact, the defendant minor availed himself of it, to cross-examine Ms.

[00:18:44] Speaker 03:
Ames thoroughly.

[00:18:46] Speaker 03:
That transcript is part of the record, and appropriately so, because it's central to the complaint, as are the transcripts.

[00:18:53] Speaker 03:
I'll get back to that in a moment.

[00:18:54] Speaker 03:
That's central to the complaint and is before the court and the appendix, as is Detective Ames

[00:19:01] Speaker 03:
affidavit in support of arrest warrant.

[00:19:05] Speaker 03:
And so as the icon transcript, which lays out the transcript of proceedings in the criminal matter in Jefferson County, lays out everything the county court and district courts did.

[00:19:18] Speaker 03:
So it's not a problem that the case gets dismissed, at least not a problem for us, that the case gets dismissed midway through.

[00:19:26] Speaker 03:
Perhaps it's unusual.

[00:19:28] Speaker 03:
But as a legal matter, it is not relevant to a civil claim for malicious prosecution, because again, that's what... Yes, Your Honor.

[00:19:36] Speaker 02:
You've covered a lot of ground, and I appreciate that.

[00:19:40] Speaker 02:
But could I refocus things a little bit back on the complaint?

[00:19:45] Speaker 02:
Of course you can.

[00:19:46] Speaker 02:
All right.

[00:19:46] Speaker 02:
Let's look at the complaint.

[00:19:49] Speaker 02:
And I'm still curious about these paragraphs in the complaint 35 and 36.

[00:19:58] Speaker 02:
And why that didn't survive, the fact that those allegations were there, didn't allow the complaint to survive the dismissal on the challenge to the warrant.

[00:20:16] Speaker 02:
In other words, Mr. Widener wasn't contesting, as I understand it, that the affidavit on its face

[00:20:28] Speaker 02:
established probable cause, but it's whether Detective Ames included false information or omitted exculpatory information.

[00:20:35] Speaker 02:
It seems like those paragraphs would be exculpatory.

[00:20:40] Speaker 02:
So why doesn't that, why isn't that a problem?

[00:20:47] Speaker 03:
Because, first of all, they're without sufficient detail.

[00:20:49] Speaker 03:
There's no time frame.

[00:20:50] Speaker 03:
Keep in mind that the crime charged charges the last couple of weeks of February 2020.

[00:20:56] Speaker 03:
There's no time frame here in what time frames there are, except in one instance, talk about September to October of 2019 in Pennsylvania.

[00:21:05] Speaker 03:
So they're not even relevant to the malicious prosecution charge claim, which only has to do with the Colorado case, which was brought for a rate that occurred in February.

[00:21:15] Speaker 02:
36, 36 refers to Colorado.

[00:21:18] Speaker ?:
Okay.

[00:21:22] Speaker 02:
I mean, if Ames had that information and didn't put it in the affidavit, why wouldn't that be a problem for the affidavit?

[00:21:28] Speaker 03:
Well, first of all, I believe she makes reference in the pretext call.

[00:21:34] Speaker 03:
She refers in the pretext call to a couple of statements that Mr. Weiner made that he either didn't know or he thought she had consented.

[00:21:44] Speaker 03:
That is in the affidavit.

[00:21:45] Speaker 03:
So that would take care of that.

[00:21:46] Speaker 03:
But more importantly, Your Honor,

[00:21:48] Speaker 03:
what Judge Wong did appropriately in those things where it's still a question of probable cause.

[00:21:58] Speaker 03:
And so what she did was exclude those things that might have supported Mr. Weiner's claims.

[00:22:06] Speaker 03:
And she included things that were alleged to be lies.

[00:22:09] Speaker 03:
And even with that, because we have, as Judge Phillips noted almost at the beginning of Mr. Parkins' argument, a confession.

[00:22:17] Speaker 03:
And that confession carries a lot of weight.

[00:22:20] Speaker 03:
Now, I want to talk about that in a minute.

[00:22:21] Speaker 00:
Let me interrupt for a minute.

[00:22:23] Speaker 00:
So are you, is it your interpretation of paragraphs 35 and 36 that there has been an allegation in the complaint that Detective Ames was aware that that information was on the phone?

[00:22:40] Speaker 03:
No.

[00:22:41] Speaker 03:
And I appreciate you bringing it up, Judge McHugh, because that should have been my first answer.

[00:22:47] Speaker 03:
Does Detective Ames know these things?

[00:22:50] Speaker 03:
The answer is no.

[00:22:52] Speaker 03:
And that goes back into a question, was her investigation proper?

[00:22:55] Speaker 02:
It's no, because why didn't he know?

[00:22:58] Speaker 03:
Why didn't Detective Ames know?

[00:23:01] Speaker 03:
Because she didn't have it in front of her.

[00:23:04] Speaker 03:
She had her phone.

[00:23:05] Speaker 03:
And what Mr. Widener is complaining about, through Mr. Parkins, is that she didn't do an adequate investigation into the phone to find out if there were

[00:23:17] Speaker 03:
other text messages of the like, and there is no allegation here about what, there are allegations about what they discussed, but there's no allegation of specifically saying that Detective Ames requested to look at the phone.

[00:23:33] Speaker 02:
Okay, so this isn't the pretext call.

[00:23:36] Speaker 02:
No.

[00:23:36] Speaker 03:
These are the text messages.

[00:23:38] Speaker 03:
These are text messages allegedly exonerating Mr. Weiner and

[00:23:46] Speaker 03:
So Judge Wong deals with this in her order and specifically does what the case law suggests a district judge do on a 12th and 6th.

[00:23:55] Speaker 02:
OK.

[00:23:55] Speaker 02:
So let me make sure I'm understanding this.

[00:23:57] Speaker 02:
You're saying this doesn't matter because she, meaning Detective Ames, was not ever made aware of this particular text message.

[00:24:10] Speaker 03:
Correct.

[00:24:11] Speaker 03:
Correct.

[00:24:12] Speaker 03:
Or text messages.

[00:24:15] Speaker 03:
There's problems with these paragraphs, these allegations, because they are so vague.

[00:24:20] Speaker 00:
I mean, that is a problem.

[00:24:22] Speaker 00:
But the bottom line is the allegations through the complaint are that the detective allowed Ms.

[00:24:30] Speaker 00:
McHale to cherry pick various text messages and pictures and show them to the detective and didn't do a broader search of Ms.

[00:24:41] Speaker 00:
McHale's phone.

[00:24:42] Speaker 00:
That's how I understand the allegations.

[00:24:45] Speaker 03:
I think that is a way to read it, it is.

[00:24:50] Speaker 03:
Okay.

[00:24:51] Speaker 03:
But it's not sufficient in this case because that is not the standard on the 12b6.

[00:24:57] Speaker 03:
The 12b6, what I'm going to rephrase, Judge McHugh, your point.

[00:25:04] Speaker 03:
What plaintiff, what Mr. Weiner is complaining about is that Detective Ames didn't do a thorough enough investigation.

[00:25:12] Speaker 03:
The question is, is there probable cause?

[00:25:15] Speaker 03:
Is there sufficient evidence to believe a crime was committed?

[00:25:18] Speaker 03:
The answer is yes.

[00:25:20] Speaker 03:
And there is nothing in the complaint that supports a malicious prosecution claim other than the bald-faced allegations that Ms.

[00:25:31] Speaker 03:
McHale and Detective Ames somehow got together to create this conspiracy.

[00:25:37] Speaker 00:
Before you run out of time, I want to ask you about the intentional infliction of emotional

[00:25:42] Speaker 00:
distress claim, which, if I'm remembering, is just against Ms.

[00:25:47] Speaker 00:
McHale.

[00:25:48] Speaker 01:
It is.

[00:25:49] Speaker 00:
In that claim, the district court threw it out because the allegations of the damages or the distress, the emotional distress, were not specific enough.

[00:26:03] Speaker 00:
But we've got a whole complaint that tells us, according to the complaint, that this man was falsely accused of rape

[00:26:12] Speaker 00:
and was prosecuted up to some point for that.

[00:26:16] Speaker 00:
I mean, what more do you have to say to say that I've suffered extreme emotional distress because allegedly you falsified this rape complaint?

[00:26:29] Speaker 03:
Okay.

[00:26:30] Speaker 03:
First of all, it was not falsified.

[00:26:32] Speaker 03:
There's plenty of problems.

[00:26:34] Speaker 00:
You have to take the complaint as true.

[00:26:36] Speaker 03:
Fair enough.

[00:26:37] Speaker 03:
So I'll tell you what it is, Your Honor.

[00:26:39] Speaker 03:
You have to allege

[00:26:40] Speaker 03:
in an infliction of emotional distress claim, what's the emotional distress?

[00:26:45] Speaker 03:
In Colorado, and as Judge Wong pointed out in her order, there are specific things you have to allege.

[00:26:52] Speaker 03:
What happened?

[00:26:53] Speaker 03:
Did my hair fall out?

[00:26:55] Speaker 03:
Did I have physical manifestations of the emotional distress?

[00:26:59] Speaker 03:
What exactly occurred?

[00:27:01] Speaker 03:
That's what's lacking here.

[00:27:02] Speaker 03:
There is no allegation whatsoever of what happened

[00:27:07] Speaker 03:
to Mr. Whitener as alleged consequence.

[00:27:10] Speaker 00:
Amendment would not have been futile here, would it?

[00:27:13] Speaker 00:
He could have amended the complaint and specified, apparently, he spent some time in jail.

[00:27:20] Speaker 03:
I don't know how long he spent in jail.

[00:27:21] Speaker 03:
I know he says the time's very short.

[00:27:23] Speaker 00:
Well, a day would be emotional distress, right?

[00:27:26] Speaker 03:
I don't know.

[00:27:27] Speaker 03:
I don't know about that.

[00:27:29] Speaker 00:
So that's the claim of the complaint where it looks to me like it's a pretty easy fix.

[00:27:36] Speaker 03:
It could have been, but Mr. Weidner chose not to do so.

[00:27:38] Speaker 03:
He was given every opportunity to do so by the court, and he failed to do so.

[00:27:43] Speaker 03:
And I believe it would be futile because why didn't he allege... I mean, it's well known.

[00:27:50] Speaker 03:
He copies the jury instruction in his complaint.

[00:27:53] Speaker 03:
So why not just add in the things?

[00:27:55] Speaker 03:
I mean, the law is clear.

[00:27:56] Speaker 03:
You have to be specific about what the emotional distress is.

[00:28:00] Speaker 03:
And he wholly failed to lay it out.

[00:28:04] Speaker 02:
Can I just ask you one other thing?

[00:28:06] Speaker 02:
Was Ms.

[00:28:08] Speaker 02:
McHale's participation in the pretext calls, did that make her a state actor under Section 1983?

[00:28:17] Speaker 03:
No.

[00:28:19] Speaker 03:
No, because that call was simply listened to.

[00:28:22] Speaker 03:
It was recorded by Detective Ames and listened to by Detective Ames.

[00:28:26] Speaker 03:
But it doesn't make her a state actor.

[00:28:30] Speaker 03:
Because one thing seems to be, there was a lot of communication between Ms.

[00:28:33] Speaker 03:
McHale

[00:28:34] Speaker 03:
and Mr. Widener many other times.

[00:28:38] Speaker 03:
So perhaps it would have been a one time, maybe.

[00:28:41] Speaker 03:
But even then, I don't think the nexus is reached.

[00:28:44] Speaker 03:
Thank you.

[00:28:45] Speaker 03:
Thank you, Your Honors.

[00:28:48] Speaker 03:
So obviously, we ask for affirmation of the judge's order.

[00:28:53] Speaker 04:
Let's see.

[00:28:55] Speaker 04:
Time remaining so it's a little astonishing based on what you can see in the sealed appendix that the claim is that that there was an actual sexual assault here especially given the dismissal but Beyond that the most important thing that that opposing counsel just said was she had the phone and by she he's referring to detective aims the phone was unlocked open in front of her and Miss McKill was showing her things on it

[00:29:22] Speaker 04:
That's the most important thing he admitted to.

[00:29:25] Speaker 04:
Because the case law that you can't turn a blind eye to exonerating information.

[00:29:30] Speaker 04:
In the Cool case, and I recognize that's from the Eighth Circuit, but I didn't see anything that was more on point here, they have a witness that has exonerating information, an eyewitness at the scene, and the cop just refuses to talk to them.

[00:29:43] Speaker 04:
That cop doesn't know she has exonerating information, but he refuses to talk to her.

[00:29:48] Speaker 04:
And that was a basis for the claim in that case, which here, very similarly, and we actually have alleged, if you look at 49, we've alleged that she should have looked at them, or in the alternative.

[00:30:00] Speaker 04:
It is believed that at the time of the interview, Ames was in possession of the information that exonerated the plaintiff.

[00:30:07] Speaker 04:
We have alleged, based on what she did with the phone, I apologize, that she had the information.

[00:30:12] Speaker 01:
What about Mount Everest, which is to say he admitted raping her?

[00:30:17] Speaker 01:
You say exonerating evidence.

[00:30:19] Speaker 01:
I don't know what that would be.

[00:30:20] Speaker 01:
Is the detective supposed to assume that he's lying when he says that he raped her?

[00:30:25] Speaker 04:
Well, it's a totality of the circumstances analysis.

[00:30:28] Speaker 01:
Well, that's a big circumstance.

[00:30:29] Speaker 04:
I think in totality, and the text messages are equally big.

[00:30:33] Speaker 04:
And this is why I believe it's a fact issue.

[00:30:35] Speaker 01:
I'm still not even clear what the text messages are.

[00:30:38] Speaker 01:
But I don't know how they're going to exonerate against the confession of rape.

[00:30:42] Speaker 04:
One of the claims was, Your Honor, and just to answer your question, I'm sorry, that she says he put her into, submitted her to sexual assault by choking her.

[00:30:52] Speaker 04:
And the text messages say, choke me harder next time, I like it, do it again.

[00:30:58] Speaker 04:
And just to your honor's point, I think the lower court under Frank and Phillips, which are cited in our brief, the lower court actually outright denied permission to amend on the constitutional claims.

[00:31:12] Speaker 04:
And I think it's clear that if the court intends to dismiss, they must grant leave to amend.

[00:31:18] Speaker 04:
And we could have amended to include more of the text messages that weren't specifically cited.

[00:31:25] Speaker 04:
All right.

[00:31:25] Speaker 02:
You're over time at this point by the way.

[00:31:28] Speaker 02:
Thank you.

[00:31:29] Speaker 02:
Thank you.

[00:31:29] Speaker 02:
I think we're Used up all our time, so we'll take the cases submitted and counselor excuse.

[00:31:37] Speaker 02:
Thank you for your arguments this morning