[00:00:00] Speaker 02:
This morning is 25-6046 Simmons versus Schobert, and you're splitting arguments.

[00:00:06] Speaker 02:
Okay, Ms.

[00:00:07] Speaker 02:
Faulkner?

[00:00:11] Speaker 02:
Are you ready for me to proceed?

[00:00:13] Speaker 02:
I'm sorry.

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

[00:00:16] Speaker 00:
Good morning, Your Honors.

[00:00:17] Speaker 00:
I am Stacy Haas-Feltener, and I represent Appellant Clyde Schobert, who is a retired Oklahoma City police detective.

[00:00:24] Speaker 00:
I will be splitting my time with Katie Goff, who represents the city of Oklahoma City.

[00:00:28] Speaker 00:
This case arises out of a December 30th, 1974 murder during the robbery of a liquor store in Edmond, Oklahoma.

[00:00:36] Speaker 00:
A store clerk was killed during the robbery, and customer Belinda Brown was shot in the head, but survived and later testified against Mr. Simmons.

[00:00:45] Speaker 00:
The robbery and murder occurred in Edmond, not in Oklahoma City, and was investigated by the Edmond Police Department.

[00:00:52] Speaker 00:
Oklahoma City Detective Showbert's involvement in the case was at most setting up two lineups at the Oklahoma City Police Department on February 7th and February 8th, according to the summary judgment order, page two.

[00:01:06] Speaker 00:
Showbert filled out a form documenting the February 8th lineup, which indicates Ms.

[00:01:12] Speaker 00:
Brown identified Simmons,

[00:01:13] Speaker 00:
And it is undisputed that he provided this report that he wrote to Edmund Detective Anthony Garrett.

[00:01:20] Speaker 00:
Detective Schobert never talked to the prosecutors about this case and was not asked to testify at either the preliminary hearing or the trial.

[00:01:27] Speaker 01:
Is that in the order?

[00:01:29] Speaker 01:
What you just said, that he was never asked to testify and never talked to the prosecutors?

[00:01:34] Speaker 00:
That is not in the order.

[00:01:35] Speaker 00:
That is what he testified in his deposition.

[00:01:38] Speaker ?:
OK.

[00:01:39] Speaker 01:
And the reason I ask is this is very short order.

[00:01:44] Speaker 01:
And basically your first two sentences encapsulated all of the facts announced by the district court in its order.

[00:01:52] Speaker 00:
Yes, Your Honor.

[00:01:54] Speaker 00:
And that I think is the problem in this case.

[00:01:57] Speaker 00:
Ms.

[00:01:57] Speaker 00:
Brown testified at both the preliminary hearing and the trial that she recognized Simmons from the night of the murder and that she had identified him in two lineups.

[00:02:05] Speaker 00:
She has never recanted this identification and has never testified she was coerced or encouraged or told by Showbert or Garrett to identify Simmons.

[00:02:15] Speaker 01:
Okay, let me ask you a question.

[00:02:16] Speaker 01:
So we're talking about more facts.

[00:02:19] Speaker 01:
Generally, we don't talk about facts that aren't in the district court's order.

[00:02:27] Speaker 01:
And so you would need a basis to argue about facts to go on, you know.

[00:02:38] Speaker 00:
And I think the basis here is what you discussed in works versus buyers that there's three reasons you can look at.

[00:02:49] Speaker 00:
You may review the factual record de novo when the district court fails to identify the particular conduct of the alleged constitutional violation.

[00:02:56] Speaker 00:
which I think we clearly have here, since he didn't talk about the individual constitutional violations, he didn't talk about the facts related to each one.

[00:03:03] Speaker 00:
And then also, the district court committed legal error on the way to a factual determination.

[00:03:09] Speaker 00:
And I think we also have that here because Schobert's position is that you should review the factual record de novo because the district court incorrectly placed the burden of proof on him when determining whether

[00:03:25] Speaker 00:
Brown was coerced, whether her testimony was coerced.

[00:03:29] Speaker 00:
And in works, you said that by shifting the burden to the defendant, that is legal error en route to a factual determination.

[00:03:41] Speaker 01:
Well, how do we know that the district court shifted the burden?

[00:03:43] Speaker 01:
The district court just said all the facts are disputed.

[00:03:47] Speaker 01:
A jury's got to decide it.

[00:03:52] Speaker 01:
Done.

[00:03:53] Speaker 00:
Well, I think then.

[00:03:55] Speaker 00:
If you don't accept that, then I think you go back to the first statement that the district court failed to identify the particular conduct of the alleged constitutional violations.

[00:04:07] Speaker 00:
I think it would have had to say a jury could find Schobert did X, Y, and Z before it could go on to whether those constituted a constitutional violation.

[00:04:17] Speaker 00:
And the district court made no findings as to what a jury could find.

[00:04:24] Speaker 02:
Well, then maybe it should be sent back to the district court to make that determination.

[00:04:29] Speaker 00:
Well, I think with respect to what this court should grant, you have two options.

[00:04:35] Speaker 00:
You can conduct the cumbersome review of the record, which the court has talked about in Estate v. Val Verde and Phillips v. Krueger.

[00:04:46] Speaker 00:
You can conduct the cumbersome review of the record that the district court failed to conduct and determine what facts a reasonable jury could find.

[00:04:54] Speaker 00:
and then about Shelbert's actions, and then determine if those actions violate clearly established law.

[00:05:00] Speaker 02:
And that's what you want this panel to do?

[00:05:03] Speaker 00:
I think that that is what the court should do because all the facts are in the record, even though they're not in the district court order.

[00:05:15] Speaker 00:
And I think when you go through those facts and how little involvement Shelbert has,

[00:05:20] Speaker 00:
it will be clear that he is entitled to qualified immunity on each of these claims.

[00:05:24] Speaker 01:
So you would have us, I guess, look at the summary judgment motions and attachments for that determination?

[00:05:34] Speaker 00:
Yes.

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

[00:05:36] Speaker 00:
And look at the record as the district court should have and didn't.

[00:05:39] Speaker 00:
But I think this would be the appropriate route in this case, because as Simmons has stressed, this is a case where

[00:05:48] Speaker 00:
A quick resolution is important.

[00:05:51] Speaker 00:
However, I think your alternate route is to remand the case to the district court to perform the analysis it should have performed before and actually address the issue of clearly established law.

[00:06:02] Speaker 00:
And this is the approach the court took in Ellis.

[00:06:06] Speaker 01:
I mean, the district court didn't address either prong.

[00:06:10] Speaker 00:
That's true, the district court.

[00:06:11] Speaker 00:
Here we have a case where the district court did not address either prong.

[00:06:15] Speaker 00:
What the court should not do as

[00:06:18] Speaker 00:
Cox versus Glans makes clear is simply accept Simmons' argument that because the district court did not address qualified immunity, this court has no jurisdiction to review the case in an interlocutory appeal.

[00:06:32] Speaker 00:
The court tacitly adjudicated Schobert's qualified immunity defense because it didn't rule in his favor.

[00:06:41] Speaker 00:
It simply ruled nothing.

[00:06:43] Speaker 00:
But Cox specifically criticized this approach because the availability of the qualified immunity defense, which has the potential to spare a public official the burdens of trial, should not turn on whether the district court addresses the defense or fails to do so.

[00:06:59] Speaker 00:
If a district court can effectively deny qualified immunity and preclude interlocutory review of the denial by simply refusing to address the issue, then the protection of the qualified immunity defenses intended to provide becomes illusory.

[00:07:14] Speaker 00:
And Simmons repeatedly argues that the court should decline jurisdiction because Schobert is refusing to accept the facts found by the district court.

[00:07:22] Speaker 00:
But the problem with this argument is that the district court essentially did not make any factual findings as you have stated.

[00:07:31] Speaker 00:
It found that Schobert contacted Garrett about setting up a lineup on February 6, conducted two lineups on February 7 and

[00:07:39] Speaker 00:
documented the February 8th lineup and gave that to report to Garrett and his last reported involvement in the case was February 10th when Garrett went to OCPD to pick up other reports.

[00:07:51] Speaker 00:
Any actions purportedly taken by Schobert after February 10th or even on February 7th or 8th outside of the lineups themselves are based on nothing but supposition and speculation.

[00:08:03] Speaker 02:
Well, if we do our de novo review, we're going to have to evaluate whether there's clearly established law that would, let's assume for sake of argument we thought there was a constitutional violation, plausibly alleged, or supported by summary judgment.

[00:08:23] Speaker 02:
What's your position on clearly established law?

[00:08:28] Speaker 00:
My position is that the law is not clearly established on any of these claims.

[00:08:33] Speaker 00:
With respect to Brady, the most important factual finding that the district court made was that no one is able to confirm whether the documents in the current district attorney file for Simmons' criminal case are the same documents that were in the file at the time of the original trial.

[00:08:48] Speaker 00:
I mean, Robert Millfeld, who was a prosecutor at trial, testified he didn't know, and Murdoch, who was a prosecutor at the preliminary hearing, said, I kind of think it was not there, but that's just supposition on my part.

[00:09:02] Speaker 00:
This finding forecloses any claim on Brady because if no one can testify that it was in the prosecutor's file, by definition, nobody can testify it was not.

[00:09:13] Speaker 00:
And although the district court failed to address the elements of a Brady claim, at a bare minimum, you would have to have a threshold determination that the allegedly suppressed evidence was not given to the prosecutor by the police.

[00:09:27] Speaker 00:
If you don't have that, then you don't have to go further and determine

[00:09:31] Speaker 00:
whether Detective Showbert knew the contents of Garrett's report, whether he had a duty to make sure the prosecutor received that report, whether it was reasonable for him to rely on his training and turn it over to the lead detective and assume it would get to the prosecutor.

[00:09:50] Speaker 00:
With respect to the fabrication claim, I think that this court has never

[00:10:00] Speaker 00:
It has never found a fabrication claim as speculative as the one here.

[00:10:08] Speaker 00:
In Pierce, you had DNA evidence.

[00:10:11] Speaker 00:
In Bledsoe, you knew it was fabricated because there was testimony, a suicide note saying, I sent an innocent man to prison and the police made me do it.

[00:10:23] Speaker 00:
Pierce and Bledsoe looked at Pyle versus Kansas, but you also had the affidavit there from a witness who gave false testimony that he had been threatened.

[00:10:31] Speaker 00:
And we just don't have that here.

[00:10:34] Speaker 00:
I will now let Ms.

[00:10:36] Speaker 00:
Goff address municipal liability unless you have any other questions.

[00:10:39] Speaker 00:
Thank you.

[00:10:45] Speaker 03:
May it please the Court, Katie Goff for the City of Oklahoma City.

[00:10:48] Speaker 03:
I will start the city's argument with the threshold issue of pendant jurisdiction and then move more specifically into municipal liability.

[00:10:56] Speaker 03:
Based on your questioning of Ms.

[00:10:57] Speaker 03:
Felkner, I would concede to you that the city's case and the pendant jurisdiction over the city's case is absolutely dependent upon whether or not you review Detective Schobert's case for qualified immunity and if you grant qualified immunity to Detective Schobert.

[00:11:17] Speaker 03:
In the event that you review Detective Schobert's case for qualified immunity,

[00:11:22] Speaker 03:
and grant him qualified immunity based on a finding that there was no constitutional violation, I believe the case law is clear that in that instance, you would in fact have pendant jurisdiction over the case against the city.

[00:11:37] Speaker 03:
If there is no constitutional violation, there cannot be a Minnell claim because you cannot have a policy as a driving force behind a constitutional violation that does not exist.

[00:11:47] Speaker 03:
Those issues are inextricably intertwined.

[00:11:49] Speaker 03:
Where it becomes more tenuous, of course,

[00:11:51] Speaker 03:
is if you make a finding that Detective Schobert is entitled to qualified immunity based on the law not being clearly established.

[00:12:00] Speaker 03:
In the event that that occurs, the city would posit that those matters are still coterminous with one another.

[00:12:09] Speaker 03:
They are bound by the same set of laws and the same set of facts.

[00:12:12] Speaker 03:
So the review that you would give to Detective Schobert about whether or not the law is clearly established, those are the same facts and the same law that you would use to determine

[00:12:22] Speaker 03:
whether or not the city had a policy and everything that Monell tells us and its progeny tells us a policy can be that caused the constitutional violation.

[00:12:32] Speaker 03:
And moving specifically into municipal liability in that case, in the district court's order related to the city of Oklahoma City's motion for summary judgment, the city has a similar argument to Detective Schobert, which is that there simply wasn't an analysis.

[00:12:51] Speaker 03:
for the defendant city, the court did find that there is no evidence of what the city's policies and procedures were because there are no written manuals.

[00:13:02] Speaker 03:
He made a specific finding that there are no officers available to testify about what the city's policies and procedures were.

[00:13:09] Speaker 03:
And if you review the record for qualified immunity, you will find out that Detective Showbert testified he was trained how to conduct lineups,

[00:13:16] Speaker 03:
He knew that he had to disclose exculpatory evidence under Brady, that this was a city of Edmond investigation, and that he knows that the city had policies and procedures.

[00:13:24] Speaker 03:
He just doesn't know what they are.

[00:13:28] Speaker 03:
that a movement in a dispositive motion makes a finding or makes a showing that there are no facts.

[00:13:37] Speaker 03:
As the city did in this case, as the district court found, the burden, according to this court in the Schneider case, is discharged from the moving party.

[00:13:47] Speaker 03:
The city made it showing there were no facts.

[00:13:50] Speaker 03:
Thus, there is no municipal liability.

[00:13:53] Speaker 03:
And with no facts, the plaintiff cannot carry his burden of proving any action by any policymaker, by any training officer.

[00:14:03] Speaker 03:
There simply is no evidence available in the record to support that case against the city, and the city would respectfully request that this court

[00:14:11] Speaker 03:
reverse the finding of the district court related to municipal liability.

[00:14:15] Speaker 03:
I would reserve the rest of my time for rebuttal for Ms.

[00:14:17] Speaker 03:
Melkert, please.

[00:14:18] Speaker 03:
Thank you.

[00:14:19] Speaker 03:
Thank you.

[00:14:21] Speaker 04:
Ms.

[00:14:21] Speaker 04:
Wong?

[00:14:23] Speaker 04:
Good morning, Your Honors.

[00:14:24] Speaker 04:
My name is Elizabeth Wong, and I represent the plaintiff, Glenn Simmons.

[00:14:28] Speaker 04:
Glenn Simmons spent over 48 years in prison for a crime of which he was absolutely innocent.

[00:14:33] Speaker 04:
He was found innocent by an Oklahoma court.

[00:14:35] Speaker 04:
He received a declaration of innocence in 2023.

[00:14:38] Speaker 04:
We filed this lawsuit shortly thereafter.

[00:14:40] Speaker 04:
The defendant's appeal in this case revolves entirely around its version of the facts, whether they're arguing over whether we've provided sufficient evidence to show constitutional violation on Brady, on fabrication, on the Fourth Amendment claim, or whether they're arguing about whether the law was clearly established in 1975 that a police officer could not make up that a witness said that she identified our client when she actually identified two other individuals.

[00:15:09] Speaker 01:
That's not in the order, though.

[00:15:10] Speaker 04:
It's not in the order, but let me address the concern about the district court's order.

[00:15:15] Speaker 04:
The district court's orders were short.

[00:15:17] Speaker 04:
I think a charitable reading of them is that the defendants had not met their initial burden at Rule 56 to show that there was no genuine dispute of material fact.

[00:15:26] Speaker 04:
But the way that this court does the analysis in a case like this is

[00:15:30] Speaker 04:
First, we look at what is the universe of facts that the district court has identified as creating a dispute of material facts.

[00:15:38] Speaker 04:
And then the court can supplement that, as the panel in Cougar versus Phillips did, as the panel in Estate of Booker versus Gomez did, with a de novo review of the record.

[00:15:49] Speaker 04:
to look at what are the facts that the district court likely assumed.

[00:15:53] Speaker 01:
OK, so you agree that this is a proper case for de novo review or a remand for the district court to expound on the proper universe of facts.

[00:16:05] Speaker 04:
It's within your discretion to do either one, whether it's to remand to have the district court

[00:16:11] Speaker 04:
spell out what exactly are the material disputes or genuine disputes of material facts or for you to conduct a de novo review.

[00:16:19] Speaker 04:
But let me be clear about what that de novo review is.

[00:16:22] Speaker 04:
The de novo review is to look at the record and view the facts in the light most favorable to the plaintiff and all reasonable inferences therefrom to figure out what are the facts that the district court likely assumed in denying summary judgment on the basis of qualified immunity.

[00:16:41] Speaker 04:
And that is where the defendant Schobert and the city's argument fails because all of their arguments, as we pointed out throughout our brief,

[00:16:50] Speaker 04:
depend on their version of the facts, not charitably viewing what the prosecutors testified, not crediting what Mr. Simmons testified about which lineup he was in, the fact that he was only in one lineup.

[00:17:03] Speaker 01:
What do we do with, I mean, okay, so fair enough, he says he was only in one lineup.

[00:17:08] Speaker 01:
He also, over time, has given conflicting versions of that.

[00:17:12] Speaker 01:
What do we do with that?

[00:17:13] Speaker 01:
So do we have to assume, do we have to view his conflicting statements charitably toward him?

[00:17:20] Speaker 01:
and say, well, we'll just go with the one that's best for him?

[00:17:23] Speaker 04:
Yes.

[00:17:24] Speaker 04:
Yes, you absolutely see.

[00:17:26] Speaker 01:
OK, so he can have his own conflicting testimony, and we have to disregard the one that's inconvenient for him.

[00:17:34] Speaker 04:
You have to view all the facts in the light most favorable to him, but let me be clear what the record actually shows.

[00:17:39] Speaker 04:
He never previously testified.

[00:17:41] Speaker 04:
He was never asked before, under oath, about what lineup he was in.

[00:17:47] Speaker 04:
He did testify in his own defense at the criminal trial.

[00:17:49] Speaker 04:
He was not asked any questions about the lineup.

[00:17:51] Speaker 04:
He simply testified about his innocence and about his alibi and the fact that he was at a pool hall in Louisiana on the night of the robbery and the murder.

[00:17:58] Speaker 04:
That's what he testified at the original criminal trial.

[00:18:00] Speaker 04:
With respect to the 1997 habeas proceedings, there was no evidentiary hearing.

[00:18:05] Speaker 04:
There was no declaration or affidavit submitted from him.

[00:18:07] Speaker 04:
And the one thing that they point out is the briefing that was written by his attorneys in the state post-conviction in the Oklahoma courts.

[00:18:15] Speaker 04:
and a note that he wrote to his attorney where he's talking about what the report shows.

[00:18:21] Speaker 02:
Now, Mr. Simmons' memory, both at the... If I could interrupt there and apologize, but there was also a federal habeas proceeding.

[00:18:29] Speaker 02:
I don't know what the answer to, but a panel of this court denied habeas relief on an actual innocence claim because it said there was no evidence that there was a Brady violation.

[00:18:44] Speaker 02:
What do we do about that?

[00:18:46] Speaker 04:
That has no collateral estoppel effect.

[00:18:49] Speaker 04:
The defendants have not argued, and they expressly disclaim in the reply brief, arguing that that has any collateral estoppel effect.

[00:18:57] Speaker 04:
That was known to the Oklahoma courts in 2022 and 2023 when Mr. Simmons litigated his state post-conviction.

[00:19:05] Speaker 04:
The record here is different than the record that was before the court at that time, because again, there was no evidentiary hearing.

[00:19:13] Speaker 04:
There were no affidavits and no declarations.

[00:19:15] Speaker 04:
And most importantly, it's not just about Mr. Simmons' testimony today, but it is about the testimony of the two prosecutors that we have in this record today.

[00:19:25] Speaker 04:
And what those prosecutors state, and again, this conflicts with the defendant's position here in their briefing in that argument,

[00:19:32] Speaker 04:
Mr. Murdoch, the preliminary hearing prosecutor, testified at the appendix 1364 to 65 when he was asked, do you think that you had this report in 1975?

[00:19:43] Speaker 04:
And he said, I don't think so.

[00:19:45] Speaker 04:
The trial prosecutor, Mr. Milfeld, when he was asked in his deposition about whether or not he had the exculpatory lineup report, he talked about how he was shown it for the first time in the evidentiary hearing in the state post-conviction in 2022.

[00:19:58] Speaker 04:
And he said, I told the post-conviction attorney at that time, I don't think I've ever seen that before.

[00:20:05] Speaker 04:
Those statements have to be credited.

[00:20:07] Speaker 01:
So do those have to be credited as, in your view, as I've never seen that before?

[00:20:14] Speaker 01:
Or they credit it as, I don't know if I've ever seen that before.

[00:20:19] Speaker 01:
I mean, those are two very different things, aren't they?

[00:20:22] Speaker 04:
Well, let me be precise.

[00:20:24] Speaker 01:
I mean, from an evidentiary standpoint.

[00:20:25] Speaker 04:
Let me be precise.

[00:20:27] Speaker 04:
Mr. Murdoch's testimony was

[00:20:30] Speaker 04:
He was asked the question in his deposition, and based on the preliminary hearing transcript and what you know in your knowledge of your own obligations to disclose Brady evidence at the time, you don't believe that you had a copy of the lineup report at the time of the preliminary hearing, right?

[00:20:43] Speaker 04:
Witness, I don't think so.

[00:20:45] Speaker 04:
That's at Appendix 1364 to 65.

[00:20:48] Speaker 01:
I just heard, too.

[00:20:51] Speaker 01:
I mean, I get the testimony, and I don't know what the import of it is.

[00:20:57] Speaker 01:
Yet, but I'm just go ahead.

[00:20:59] Speaker 01:
I mean I I don't want to it's not doing anyone any good for me to joust with you about facts But I'm just trying to get a handle on how you think we have to view the air the evidence if it's unclear I Know that what's clear is someone asked him if he believed he'd ever seen that and he said I don't think I've ever seen that No, both of those the question the question was hedged in these so was the answer and

[00:21:26] Speaker 01:
And I just don't know how we treat something like that.

[00:21:29] Speaker 04:
He was also asked a series of other questions and earlier on other pages of his deposition that we said in our response brief about whether or not he understood his Brady obligations at the time in 1975, whether he would have turned over this report, whether he thought looking at it now that the report was exculpatory and

[00:21:46] Speaker 04:
Let's not forget that the trial prosecutor, Mr. Millfeld, testified at the evidentiary hearing that he had an open file policy.

[00:21:53] Speaker 04:
And so there's no dispute that nobody ever made anything of the fact that Ms.

[00:21:59] Speaker 04:
Brown had actually identified number six in the lineups, which was not the position that Mr. Simmons was in.

[00:22:06] Speaker 04:
According to the case record,

[00:22:07] Speaker 04:
which is one of the two fabricated documents that Mr. Schobert gave to the prosecutors.

[00:22:13] Speaker 04:
According to that fabricated document, Mr. Simmons was in position two on both February 7th and February 8th of 1975 in those lineups.

[00:22:22] Speaker 04:
We now have a report which says that she actually identified

[00:22:28] Speaker 04:
number six, and number blank, and that it was the same two on both days.

[00:22:32] Speaker 04:
A defense attorney clearly would have asked questions on cross-examination of Ms.

[00:22:37] Speaker 04:
Brown about the differences in her testimony.

[00:22:40] Speaker 04:
They tried at trial to impeach her credibility, to say that she wasn't sure, but they didn't have this crucial document, which showed that she identified somebody else entirely.

[00:22:50] Speaker 04:
I mean, you know, the question- Where did the report come from?

[00:22:58] Speaker 04:
In the 1990s Mr.. Simmons finally got a An investigator to do some pro bono work for him And he sent an open records request to the Edmund police department and the Edmund police department produced it At that time what about the the city's claim that there was no no fax to support the Monell claims

[00:23:18] Speaker 04:
There's not been a single case in which this court has ever, in an appeal of a denial of qualified immunity of an officer, there's never been a single case in which this court has reached out to decide whether or not the city's policies or training were sufficient.

[00:23:36] Speaker 04:
And this case should not be the first one in which to do that.

[00:23:38] Speaker 04:
Now there are some things that Ms.

[00:23:40] Speaker 04:
Goff said that I agree with and many things that she said that I don't agree with.

[00:23:43] Speaker 04:
The fact is that in order for this court to exercise pendant jurisdiction, which is generally disfavored, over the city's appeal, you would have to find that there is no, we have not shown sufficient evidence to show constitutional violation on any

[00:24:01] Speaker 04:
of our theories, Brady, fabrication, unduly suggested by Dee, the Fourth Amendment claim, you would have to find that there is no constitutional violation on any of them, because if there's a constitutional violation on any one of them, then it doesn't resolve the claim against the city.

[00:24:15] Speaker 04:
Now if you decide, so they would have to win across the board,

[00:24:19] Speaker 04:
on the first prong of qualified immunity in order for you to reach out and decide the city's appeal.

[00:24:28] Speaker 04:
With respect to, you know, if you decide that there were some claims that were not clearly established at the time, which of course we contest, that would not resolve the city's appeal because the city is not entitled to qualified immunity.

[00:24:42] Speaker 04:
With respect to the, so as we've stated that I think it's within your discretion whether you want to remand to the district court or to decide the case here by reviewing the facts, I think that given the passage of time and given Mr. Simmons' current state of health and given that the city is not asking the court to remand either,

[00:25:09] Speaker 04:
What we would urge this court to do is to look at the record with a view of viewing the facts in our favor and figuring out what facts the district court likely assumed.

[00:25:19] Speaker 01:
And the district court's opinion, while short, did say some things which I think that the other side is not really... Don't we have to assume that the district court considered the entire factual record that the two parties presented to him?

[00:25:32] Speaker 04:
Yes, yes, of course.

[00:25:33] Speaker 04:
And he clearly did.

[00:25:35] Speaker 04:
I mean, he noted what the, his opinion is short, but he did know what the claims were.

[00:25:40] Speaker 04:
He understood that we were asserting claims under Brady, fabrication, unduly suggestive ID, the Fourth Amendment claim.

[00:25:48] Speaker 04:
He states in footnote three, he acknowledges in footnote three of his opinion that

[00:25:53] Speaker 04:
The lineup report is the one that we say was exculpatory and never provided to the district attorney, although could have been phrased a little bit differently.

[00:26:01] Speaker 04:
I think that the charitable reading of that is that he was finding that the facts, a reasonable jury could find those facts in our favor.

[00:26:09] Speaker 04:
Another example of the district court's opinion saying, finding certain facts that you have to accept

[00:26:15] Speaker 04:
in the context of this appeal is finding that Schobert testified at his deposition that he did not remember anything about this case.

[00:26:25] Speaker 04:
He did not remember any conversations with Garrett, anything about Mr. Simmons, anything about the lineups, the trial.

[00:26:31] Speaker 04:
He remembered absolutely nothing.

[00:26:33] Speaker 04:
And yet, at summary judgment,

[00:26:35] Speaker 04:
Showbert submitted a nine page declaration from his attorneys attempting to dispute his prior complete lack of memory of the case because I think they realized that that was not helpful to them.

[00:26:47] Speaker 04:
That cannot be credited and under the district court's opinion in footnote nine, that cannot be credited because the district court disregarded that declaration.

[00:26:57] Speaker 01:
So in your view, in reviewing whatever Schowertz said, we would disregard the affidavit and basically say he knew nothing?

[00:27:08] Speaker 04:
That's correct.

[00:27:08] Speaker 01:
OK.

[00:27:09] Speaker 04:
That's correct.

[00:27:11] Speaker 04:
With respect to whether the law was clearly established at the time, I think although the events of this case are probably older than many of the other cases that have come to this court in a wrongful conviction case, it was nevertheless clearly established

[00:27:23] Speaker 04:
in 1975 that a police officer could not make up evidence about who was identified in a lineup.

[00:27:31] Speaker 04:
A police officer in 1975, a reasonable police officer, would have known that you could not take information that he knew about who the witness identified and fail to give it to the prosecutor when it was completely different than what he wrote up in the case record.

[00:27:49] Speaker 02:
We also... What 10th Circuit case are you relying on?

[00:27:52] Speaker 04:
Well, there's Pierce versus Gilchrist, which, of course, involved events from 1986.

[00:27:56] Speaker 04:
But it cited Mooney versus Hollahan, which was decided in 1935.

[00:27:59] Speaker 04:
It also relied on Brady itself, which was decided in 1963.

[00:28:03] Speaker 04:
It relied on Pyle versus Kansas, which was decided in 1942.

[00:28:09] Speaker 04:
So of course, the language of Pierce is phrased in terms of the events that you were looking at in that case, which occurred in 1986.

[00:28:18] Speaker 04:
You were relying on cases that were far, far older.

[00:28:22] Speaker 04:
And that is the same thing that circuit courts around the country, including the Sixth Circuit and the Jackson v. City of Cleveland, have found.

[00:28:30] Speaker 04:
So it's not only clearly established by the Supreme Court cases themselves, but it's also clearly established by this court's cases.

[00:28:39] Speaker 04:
And the way of authority also supports our position.

[00:28:42] Speaker 01:
So do we have to, if there are documents that show that whatever Schobert gave

[00:28:50] Speaker 01:
to whoever were inaccurate.

[00:28:54] Speaker 01:
Do we have to assume that the inaccuracy was a fabrication, or does there have to be more?

[00:29:00] Speaker 04:
Well, Simmons is saying he was only in one lineup, and he was not in the lineup on February 8th.

[00:29:10] Speaker 04:
And Schobert writes down in the reports that Simmons was in this lineup, and Belinda Brown picked him out.

[00:29:16] Speaker 04:
That is necessarily false.

[00:29:18] Speaker 04:
The question of his intent?

[00:29:19] Speaker 01:
Well, that's a difference.

[00:29:21] Speaker 01:
I mean, it's not necessarily false.

[00:29:23] Speaker 01:
It's necessarily that two people are saying two different things, but we don't know why.

[00:29:27] Speaker 01:
And I guess my question is, in that regard, do we have to, to construe it in your favor, do we have to assume, do we have to presume it's false?

[00:29:38] Speaker 04:
Yes.

[00:29:39] Speaker 04:
I mean, for fabrication, you do have to show knowingly, recklessly, or intentionally.

[00:29:45] Speaker 04:
And I think that's the standard for both fabrication and Brady.

[00:29:49] Speaker 04:
But that's a jury question.

[00:29:50] Speaker 04:
The level of intent that a defendant has is a jury question, which the district court decided in our favor.

[00:29:59] Speaker 01:
True.

[00:29:59] Speaker 01:
But you don't get to generally go to a jury just by saying,

[00:30:04] Speaker 01:
It's false.

[00:30:05] Speaker 01:
Jury decide that it is.

[00:30:06] Speaker 01:
I don't have anything else to tell you about it.

[00:30:10] Speaker 01:
You have to provide evidence of falsity.

[00:30:13] Speaker 04:
Absolutely.

[00:30:13] Speaker 04:
And the corroborative evidence is the way that the Brady claim and the fabrication claim work together.

[00:30:18] Speaker 04:
So we know that not only did he write down something completely false, but we know that he also hid this lineup report.

[00:30:26] Speaker 04:
And let me back up.

[00:30:27] Speaker 04:
It's not just about the lineup report itself.

[00:30:30] Speaker 04:
It's not just about the piece of paper.

[00:30:32] Speaker 04:
It is about his knowledge that Belinda Brown identified number six in both of the lineups.

[00:30:36] Speaker 04:
And that was not Glenn Simmons.

[00:30:38] Speaker 04:
And he kept that information to himself.

[00:30:40] Speaker 04:
He did not talk to the prosecutor.

[00:30:42] Speaker 04:
He did not disclose it to the prosecutor.

[00:30:44] Speaker 04:
And he didn't ensure that anybody else knew about that either.

[00:30:48] Speaker 02:
Okay.

[00:30:48] Speaker 02:
Thank you, counsel.

[00:30:49] Speaker 02:
Your time's expired.

[00:30:50] Speaker 02:
We have some rebuttal.

[00:30:53] Speaker 00:
With respect to your last question as to whether the report shows falsity, the problem here is that you cannot get from the

[00:31:07] Speaker 00:
And declaration of innocence in the sense of Ms.

[00:31:12] Speaker 00:
Brown was wrong to Ms.

[00:31:14] Speaker 00:
Brown's testimony was fabricated by the detectives.

[00:31:18] Speaker 00:
They put on a witness that said expert witness at the evidentiary hearing explaining all the reasons that her testimony or her identification could have been wrong.

[00:31:29] Speaker 00:
But that doesn't mean that it goes back to show that Shobert fabricated it.

[00:31:37] Speaker 02:
I'll give you another minute if you have something else to say.

[00:31:40] Speaker 00:
Okay.

[00:31:42] Speaker 00:
I think we did credit what the prosecutor said because they both said, we don't know.

[00:31:48] Speaker 00:
Murdoch said it's a supposition that it wasn't in there.

[00:31:52] Speaker 00:
And Millifeld looked at, said at the evidentiary hearing, I've never seen this before, because they gave him three pages that were just that report.

[00:32:04] Speaker 00:
And then he looked at it in the context of

[00:32:07] Speaker 00:
what appears to be a DA file.

[00:32:09] Speaker 00:
And he said, I don't know if this was in the original file, but there's circumstantial evidence from the way it looks from the hole punching.

[00:32:18] Speaker 00:
And he said, and when I saw this and thought it probably was in my file, I almost had a conniption.

[00:32:24] Speaker 00:
That's not really, I know it wasn't in the file, which is what you would need to get to Brady.

[00:32:30] Speaker 00:
Thank you.

[00:32:31] Speaker 02:
Thank you, counsel.

[00:32:33] Speaker 02:
The three of you are excused.

[00:32:34] Speaker 02:
The case is submitted.