Legal Case Summary

Mrs. Gocina, Mrs. Corman. Good morning. I met Police Accord. I'm James Corman. I appear on behalf of the appellant Sean Massey. The decision in the district court was entered on an incomplete, one-sided, highly selective record that the appellees alone assemble. In effect, it was a closed, private record. It sort of brings to mind that the issue that the court was discussing in the last case about the joint appendix and whether it included all of the relevant documents, I think the issue in this case is whether there was a record in the district court that included all of the relevant evidence that allowed the district court to decide as a matter of law that Mr. Massey could not show that his arrest was without probable cause or that his conviction was caused by a fabricated report that he wore his hair in braids on May 22, 1998. That's really the issue in the case. That was the only issue in the case. Really, which is, did Sean Massey wear his hair in braids on May 22, 1998. The complaint alleges that he did not. The complaint alleges that the victim in the case confirmed that the person who assaulted her and kidnapped her and held her family at gunpoint wore not just braids, but cornrows wore his hair braided. I thought it was four small braids. No, that's the problem. Where in the record did she say cornrows and not? It's in four small braids. It's in the complaint. I don't think there's an issue about that. For small braids, it's somewhere because I didn't make it up. No, no, no, no, no, no, you didn't. We allegedly appellis did. You didn't, of course. But where that appears is that that is the description that officer Esposito claimed that April Pride gave him of Sean Massey, that he wore his hair pulled back with four or five small braids at the back. That's also almost identical to the description that the police said that the victim provided of her assailant. So in both cases, in terms of what officer Esposito claimed April Pride told him and what our officer, O'Janeck, wrote that the victim said about her assailant, both said, or in the case of Ms. Pride, is alleged to have said that Sean Massey wore his hair with four braids in the back. In fact, the person who assaulted the victim in this case wore braids throughout his hair. That fact actually came out at the trial, but it was ignored by everybody in the trial. Probably because they didn't understand the significance of it. As a result of the investigation that was done. I'm sorry, and where is this in the complaint? I don't even know that I'm getting the significance because I thought that your client's basic argument, a really cornerstone of this argument, was that if he had had braids of any sort, after the certainly contemporaneous photo show, he had no braids at all. And what, who did, what to this had nothing to do with your complaint? But I'm obviously not good. Well, that's not. So a cornerstone of your complaint is that the actual perpetrator here had braids. He had corn crow. Corn crow

. Correct. That's that right. And that's not his argument somewhere? Yes, that's that's. That's you in the proceedings in the district court. No, I was not, but it's, but it's it's set out in page 16 of the joint appendix paragraph 33 of the complaint. This is a really important point. This is, this is exactly what created the problem, both at the criminal trial and I believe also in the district court. The description that the police provided and attributed to April pride, in fact, did not describe the hairstyle actually worn by the assailant. And none of the people involved in the case understood that. The as a result of the investigation that was done into Mr. Massie's claim of innocence, the victim in this case confirmed that the person who assaulted her wore his hair in corn roads. But that's all after the fact. I thought you were telling us at the time. She said that. This is the she said they located an interview after the fact. She testified at the trial that the that the the person's hair braids were throughout his head. She was asked by the prosecutor were his braids at the back or were they on side to side? How were the braids? And she said they went throughout his head throughout his head. That was just one statement that she made on the record. And that that is what indicated in the investigation that the person who committed this crime did not just have braids at the back of his head, but had braids throughout his head. That's that that's a really important point. She crossed examines the trial. She was. She was not cross-examined about this and we're not trying to impeach to otherwise or identifications. Well what she always said. She identified your client. Well, she identified me in the courtroom, right? No, no, no, no, no, no, Judge Mike. What what what she said was that that's the person. I believe that's the person except that that person doesn't have braids. Right. Right. So the issue is did Mr. Massey have braids on May 22nd? I thought that you're well. I'm not exactly sure it's important that the perpetrator had cornrows or not because your claim is it's not your client because he never had any kind of braids. Exactly. So it doesn't matter what perpetrator had. But it does. It does for this reason. Because not only did he not have braids, but he also never wore his hair and and and but he's been but he's now out of health prison

. I understand. But can I finish and they on some kind of of got some kind of host conviction relief? Well the the the disciterranny asked that he be released and asked that charges. Police. He's has not been exonerated. Well or pardon. Well he's not anything of that nature. We disagree with that. You got a pardon in the record. Well he he hasn't been pardoned but we believe he was exonerated. And that that district attorney asked to release. I mean, but the district I mean I prosecute people and convicted them and ask it does not even put them in jail. But the district attorney. In fact, did you add a jail then mean it that you've been a judge wrongly convicted or not guilty. Judge Judge King, I think it's really important for the court to understand in this case the significance of the fabrication that Sean Massey had great because if he did not have braids, the victim the alleged fabrication. Well, but for purposes of this motion. These officers cooked it all up to get him into the benefit. But for purposes of this motion you have to accept that they fabricated it. You see you can't on a on a on a 12 C motion. You can't decide it as because you think it's unlikely that the allegation is true. The allegation has to be accepted as true. The the the the the well that's the law. Well, excuse me. So I think generally think it's the court's determination of what the law is. Whether you like it or not. But it seems to me you had two claims here. One was that the initiation of the suit violated fourth amendment. Fourth amendment. Correct. And we have them going in front of somebody getting an indictment. Right. I've gotten well they got it they got an arrest warrant. And then they also got an indictment. And so if we took out the evidence that you say is false and then we look and see if there is sufficient evidence to get an arrest warrant and an indictment. And we conclude that there is. Here's the fourth amendment claim doesn't prevail. Here's the problem. I would think you'd be interested in what I had to say so you could respond to it. But if you're not I am interested

. And but then that leaves us with the 14th amendment claim about perpetrating this. Correct. And this is where you say that they're. Gening up false evidence affected everything. Right. And this tracks these 1983 claims. Track to some extent state law. Torque. That's correct. And my understanding is that in a state law twerk lane with respect to continuing the suit unless you got some kind of. Final decision saying your man is not guilty. You couldn't prevail. Correct. And as George King just mentioned I don't know that you have that we have an order. We don't have an order to honor it. No, no, we have an order overturning the conviction and dismissing the charges. That's all you need. Well go read tort law. I'm not sure that is all you need. Well, that's all you need. For these purposes to this. That's all you need to get a amount of jail. Sure. But that's all you need. What's the point that the night order on 67. Thank you. And paragraph three on J.A. 68 says evidence that supported the conviction and still supports a conclusion that Sean Massey is the person who committed this defense includes. That's hardly an exoneration. Well again, you've heard our point is that you can't accept that motion as setting out what the facts are as a matter of law. This is a 12. This is a 12 C motion. How's this getting the record? Because the district attorney filed it exparte. Correct. To the bottom of his answer. There was it in the appendix. It's not in the record

. Because well because they attached it to their answers. Well, they got it. All right. That's in the record as part of their answer. Okay. So it is in the record. This is a 12 C. It's not a 12 B6. It's a 12 C judgment on the pleading. Correct. And the. Strike it. The. Well, there was a motion to strike. It was a motion to strike that particular order. That's what got you applied out of prison. No, no, not the strike order to. Well, then the order is in the record. Then in the order is in the record. We're entitled to rely on it. So was the district judge. You can roll point out. You can rely on the order as having overturn the conviction and dismissed the chart. You can't rely on what he recites in it. Correct. Correct. You can rely on what he recites only if you could take judicial notice of those allegations as fact. That's that's the difference between a 12 C and a summary judgment because we have the right to challenge the district attorneys characterization of what happened. The only. It's not the district. It's the court that released. It's in the order of the state court in the underlying case that you're talking about is not. But it's not based on findings of fact. It's based on. That's all you have to show exoneration. There's no other evidence that you can co up to show why the state court gave the ruling it did. This is it. Right

. Well, that's correct. Then you have to rely on this is saying it gives you a base issue. Do sir because that's all you have. But not the facts. We don't have to rely on the facts. You don't have to agree with those facts, but you have to agree that that's what the district court found. I believe these the state court found that's what it thought the facts were. And that's the only basis for which it let your clients out of jail. What we're what we're doing now is we are under 1983. We are pursuing a. An independent claim this had this is not about his. In fiction. This is about whether his constitutional rights were valid. You want damages in individually from the three or two or three. How many are officers you see correct and 1983 does not you three does and it's right. But it doesn't require that you be exonerated. There's no there's nothing in there's nothing in the law that says he has to show he was exonerated. Well, if he was properly put to jail. That's the question. Right. Yes. That's that's the question and you in making the claim that he wasn't properly put to jail. Say look he's been released. They're not going to re try him. And if you had a pardon. Then you'd have a pretty good claim that he was improperly prosecuted and improperly the trial was improperly gone, but you don't have that. What we have is evidence that they fabricated the evidence that led to his arrest that led to his conviction. And that's how it is. I'll tell you this way. Suppose that we assume that they did fabricate all kinds of evidence. Not not your clients. Somebody else. They fabricated evidence. They got the indictment. All right. But during the trial they fabricated evidence to beat the band just one fabrication right after another. But the trial court concluded that M. T's convicted and then later the trial court says yes, there's a fabrication of evidence here

. But this man was those that was all harmless error. There's so much more evidence. And therefore I cannot I will let him out of jail, but I am not going to give him now. Would you would you maintain that he has a claim that the because the question under 1983 is whether the fabrication was material right. And if you would have been convicted anyway, it's not material. Well, that's correct, but that's not the case here. That's the point that you say, but that is not what the state courts. Well, but this is this is a different issue. This is this is a question whether under 1983 we can maintain a claim based on fabricated evidence that he was arrested and convicted as a result of that. But you don't have a 1983 claim for the conviction unless you can demonstrate as you said that it was material. And the way you look to see it was material is to see what the what the relief was and the relief here wasn't. Okay, I'm going to let you talk for five additional minutes. Your time has gone. Okay, so you can find more. Okay, well, if we if we look at the issue of probable cause, for example, that the question is, how can you attack probable calls in this kind of a proceeding when you've had a trial and been convicted. I mean, he was convicted beyond a reasonable doubt. And the order that we've just been talking about doesn't disturb that. Well, but the reason there's plenty of probable cause and you had an indictment in that severity. The indictment severity. But the issue is that's that's settled all. But but the issue is what was the basis for the probable cause. There's proof beyond a reasonable doubt that hasn't been disturbed. Well, that has been disturbed because they're not based on this order that you you like part of it, but don't like the rest of it. Well, all all my point is that you can't rely on recitation of facts set out what the court did and it did not exonerate your client. But at least the imprisonment and it overturned the charges and and vacated his conviction. In other words, it restored the status quo prior to his arrest. And the question is whether his arrest was the product of the fabrication. The record doesn't even include the affidavit that they use to obtain the arrest warrant. They put in the arrest warrant but not the affidavit. And what they do is they they argue under a case brown versus Gilmore that the court can look at all of the circumstances to decide whether there was probable cause. And that's the wrong case. The the relevant case is Martin versus Prince George's County, which is a case that involves a an arrest warrant. And the question there under that case is take away the fabricated evidence and put in the truthful evidence that was left out. And if you do that, would there be probable cause? And in this case, the fabricated evidence was that Sean Massey wore braids. And the truth was that not only did he not wear braids, but his hair was too short to braid. If you put that evidence in, then the victim herself would have conceded that he was not the person who attacked her. Because she always conditioned her identification on the salient having braids. And Sean Massey did not have braids

. And for purposes of this appeal, the course has the court has to accept that as being true. Thank you. May please the court. I'm Jim Cooney at the State of North Carolina. I represent I'm acting as lead counsel for the defendants in this case. And I reserve four minutes of the appellees time so that Mr. Peterson can address the issues that are raised in the motion to dismiss on behalf of Detective Ledford. I'd like to start off by talking about a couple of things that Professor Coleman mentioned. I can start off where he left off. In other words, this business about taking out of the evidence that was truly was false. And then would there have been probable cause without it? Absolutely. And why is that? Under Frank's versus Delaware analysis, because we had effectively three identifications in surrounding circumstances of Mr. Massey. Well, he maintained that the victim's identification was dependent on the fact that the gentleman had braids. But it was for small braids. It was. And in fact, in the courtroom, she identified him not only by his face, and she said that specifically, but by his voice as well. This was a man who was with her for 30 minutes, threatening her, threatening her children, trying to rape her, and then robbed her. And she recognized his voice as well on the courtroom. She made a valid, in court identification. She made an out of court identification that was found to be constitutionally reliable. She stood up and identified him in court by both face and by voice. In addition, we have a property manager, Teresa Savile, who puts him on the property at about the time of the crime, making his alibi defense impossible. And finally, April Pride, the witness he places so much emphasis on in terms of the alleged fabrication. Her testimony made his alibi defense impossible. So we have three people who put him there at the scene of the crime, and there's no contest. There's no dispute that April Pride and Teresa Savile made accurate identifications. So we know he's there at the time of the crime. He's a property fall salibide defense. And we also know that the perpetrator had intimate knowledge of the apartment complex. So you're maintained, and even if you take out all the testimony about the brave and you substitute that that was wrong. There were no brave. There would still have been probable cause. Correct. If you just take out the braids issue, there's still plenty of probable cause. Now what what Mr. what Professor Coleman is attempting to do is to turn it on his head. He's saying what's a malicious prosecution case

. So the fact that you have to put in there is effectively that he's innocent. Well, that's not the way malicious prosecution cases work either at state law or under the Fourth Amendment. I think Judge Mott and Evans against charmer's and footnote seven. You noted specifically that it is the plaintiff's obligation to bleed with specificity the fact that he or she claims was false or omitted from the warrant. But it's a fact. It's not a legal conclusion. And in effect what Professor Coleman is asking is that you insert a legal conclusion, Mr. Massie couldn't have done it into the warrant. And that's how he gets over the hump of probable cause, which as you point out Judge Kang, there is probable cause. Not only based on the testimony in court, there's evidence sufficient to convict based on this testimony in the court, which goes way past probable cause. Well, let's talk about. It seems to me he had two claims. He has this Fourth Amendment claim, which is the initiation of the prosecution, but he also has the claim about the use of this evidence during the trial. And that's a. I do process claim if you will and explain me why that because it seems to me that's a stronger claim. Well, and I'll call that the Washington against Wilmore claim because I think that's the leading case from this circuit that talks about it. And in yonder pointed out the difference between the two cases. Wilmore was exonerated based on DNA evidence. He was indisputably innocent. What we have here is probable cause and sufficient evidence so that they can't they don't meet that threshold, but more importantly, the only fabricated evidence reported in this complaint is officer espisitos written statement that April pry told him that Mr. Massie wore four or five braids, whereas the victim had said more for small braids in the back of the head. So, and what I thought but apparently all this testimony really is that the real person wore dreadlocks. Well, it's and that is yonder pointed out that apparently is evidence. There's no affidavit the complaints not verified. I mean, there's no evidence of that in this record other than a bear allegation that after the conviction, the Duke wrongful convictions clinic went out and determined it was corn rose and got the victim to admit it was corn rose. But that's all after the fact that's that's not as of the time and as you pointed out your honor, you measure the police officer's knowledge by what they knew at the time. Now, the reason that fabrication doesn't support the alleged fabrication doesn't support to do process claim is it wasn't the legal cause of the conviction. There was a limiting instruction given on that specific evidence. The court turned to the jury and said you may consider officer espisitos testimony only for the purpose of corroborating April pride and for no other purpose. Now, we put people. I thought that they thought that everybody that said that there were these four small braids. No, it was was was like. No, everybody. No, and in fact, there is no allegation or even hint of an allegation that the police told, for instance, the victim what April pride had said or had directed the victim to Mr. Massey's photograph, Mr. Massey's photograph, the victim looked at roughly between 42 and 48 photographs. Mr. Massey's was the only one she picked out

. That same photograph is picked out by the property manager and was identified later by April pride as being Mr. Massey. That alone is probable cause and it isn't dependent on braids. And I think Mr. Coleman, I mean, Professor Coleman wants to characterize and needs to characterize braids as somehow being like DNA. Well, braids aren't like DNA. Hair is not like DNA. Back when I had hair, I could change it. I could cut it short. I could dye it. I could put on a wig. I could do any number of things to it. I can't do that to my DNA. And to argue somehow that the braids are the definitive piece of the case, just mischaracterizes what's in that trial record. Well, what they do have is the fact that they're man is now been let out because of this because of what the state did. Well, no. And if I can disagree just slightly, they did provide some later evidence. But the other issue was the district attorney, the assistant district attorney didn't turn over Brady evidence about the victim's equivocation before she made a positive identification. Now, this district attorney did the right thing. It's his job to ensure that justice is done. You want to encourage that kind of exercise of discretion. He decided on balance while I could try him again while there's still substantial evidence. It undermines my confidence in guilt beyond a reasonable doubt. And the right thing to do is let him out of jail. That's not an exoneration. And that was that order kind of an agreed order then that starts on page 67 or was it contested? Well, it was not contested. And certainly, and Professor Coleman can address it, but he certainly had many conversations with the district attorney. The prosecutor had a right to retry him if he wanted to. Absolutely. That's what I'm getting at. And the prosecutor in the exercise is just a spreadsheet that there was no basis for the victim. Correct. And the prosecutor in the exercise is just a sub. How did that polygraph stuff get in there? It's in the order. But how to get in the record? Well, apparently, we've stick in that in here. Well, I'm sure the district attorney did because one of the things most district attorney says, if you say he's innocent, have him submit to a polygraph. There was a consensual polygraph examination in connection with the Everett to get him out of prison. That is mind-er-standing again, Professor Coleman could address that

. I'm assuming. But it's in the record and says he's still lying. Well, he tested deceptive on the same thing. Well, that's not... I read polygraph exams, I've had some experience with them. I don't have a lot of confidence in them. But it says the guy thought there was deception on the crucial thing. On the braids and whether you participate in the crime. Right. And... But I just wondered how anybody got it in the record. I guess they stipulated to it, they got it in. Otherwise, it kind of stuff. Generally not. It's visible. That's correct. But there was nothing private about attaching these documents. And I want to make that point because the complaint in this case referred to every document that we attach to the answer. And a plaintiff is not permitted to simply fashion a complaint, refer to documents and never attach them. Right. But he's... I thought the professor's point was that just because it's attached to the complaint doesn't mean that we necessarily accept the fact. Well, with this court listed here, we accept the fact that the district court... That the state court issued a disapointment. That fact we have to accept. But not the underlying facts that he states is the basis. And I have to disagree with him slightly about that because this court has said repeatedly that you're not bound by the allegations of complaint that are contradicted by written documents whose authenticity is not in question. Would you take a position that's... even if it hadn't been filed at this state court order that we could have traditionally noticed in the context of this case? Absolutely. Absolutely. It's central to his claim. It's referred to in his complaint. And he doesn't dispute the authenticity of it. Indeed, he's relying on it. Can I ask you... can you tell us as a matter of certain that someone was representing Mr. Massey before the state court in preparation for this order? Yes. Because they pleaded. It's actually in the complaint, I believe, in the first paragraph where they talk about the role of the Duke-Rongful Clinic project and the Duke-Rongful Clinic project gathered up the additional evidence. Rongful conviction claim. Rongful conviction claim. And Professor Coleman heads up that claim. Which is... I presume why he now appears on appeal. This is business about move to overturn his conviction. Is that what this was a result of? Is it the motion to overturn his conviction? I don't believe there was a formal motion file. It's not the record. I've never seen a formal motion, but they certainly met with the district attorney and moved him one way or the other to consider the total of the evidence. He doesn't really... I'm looking at the complaint now. Mr. Massey was exonerated after the Mecklenburg County District Attorney's Office moved to overturn his conviction based on newly discovered evidence. I don't read where he says they were party-to-litter they knew that this order was coming down or anything like that. Well, there was a motion file which... and I apologize for this. We wasn't included as part of the answer because we thought the order was the duoracally significant issue. I'm not getting to actually whether there was a motion file. I think they say there was a motion file

. even if it hadn't been filed at this state court order that we could have traditionally noticed in the context of this case? Absolutely. Absolutely. It's central to his claim. It's referred to in his complaint. And he doesn't dispute the authenticity of it. Indeed, he's relying on it. Can I ask you... can you tell us as a matter of certain that someone was representing Mr. Massey before the state court in preparation for this order? Yes. Because they pleaded. It's actually in the complaint, I believe, in the first paragraph where they talk about the role of the Duke-Rongful Clinic project and the Duke-Rongful Clinic project gathered up the additional evidence. Rongful conviction claim. Rongful conviction claim. And Professor Coleman heads up that claim. Which is... I presume why he now appears on appeal. This is business about move to overturn his conviction. Is that what this was a result of? Is it the motion to overturn his conviction? I don't believe there was a formal motion file. It's not the record. I've never seen a formal motion, but they certainly met with the district attorney and moved him one way or the other to consider the total of the evidence. He doesn't really... I'm looking at the complaint now. Mr. Massey was exonerated after the Mecklenburg County District Attorney's Office moved to overturn his conviction based on newly discovered evidence. I don't read where he says they were party-to-litter they knew that this order was coming down or anything like that. Well, there was a motion file which... and I apologize for this. We wasn't included as part of the answer because we thought the order was the duoracally significant issue. I'm not getting to actually whether there was a motion file. I think they say there was a motion file. What I'm getting to is whether... sort of what Judge King was asking you earlier whether this was negotiated or to what extent there had been argument about it or just what was going on and maybe you don't know the answer. It was not contested. I know that. I see. Did the lawyers get together to write it up and then just handed the judge and he signed it? I think the district attorney certainly drafted the order and drafted his motion. Whether Mr. Coleman agreed with it in its entirety, he's going to have to tell you but my guess is he didn't object to it too virulently because it accomplished what he wanted to accomplish. Released precisely, Your Honor. The order was added within a day or two. Representation to it wasn't he didn't object to it at all. Not too vigorously but at all. Well, there were no formal objections. That's certain. I mean, there was nothing file on behalf of Mr. Massey before the state court objecting to any bit of that order or the motion. And as I say, they embraced it. So and I guess to they do these kinds of things in North Carolina. Do they sometimes have the lawyers just sign off on the order and say approved by or expected by or sometimes that doesn't say that on here. I mean, that's the practice among the state court a lot to I know most of the written stuff that lots of times were prepared by the lawyers and they were straight back and forth and they didn't like it. They could say inspected by and objected to well and and sign it up and they knew the judge was going to actually the motion is in here. But it doesn't show any service process on the other side. Well, and again, Professor Coleman is going to have to answer that. And I think that he has already presented to us that this was all secret. I think this is the secret. No, no, that's not what he was talking about being secret. That was he knew about that. I can assure the court and I think Professor Coleman will inform the court that he knew the district attorney was going to do this because he asked the district attorney to do this. That had been the point of presenting everything. It is a practice among North Carolina attorneys in a role of court that you run orders by the other side before submitting them. And sometimes there's a percentage correct, John, or before submitting it to a court. So that's certainly a standard practice and to close off the loop for you, Judge Mont. The only fabrication is this single statement in April Pride's testimony and because of the limbing the instruction as a matter of law, that's not the legal cause of the conviction. And I think, John, or touched on what legal cause means in Evans against traumas. There's no way you can say but for that single line admitted for the purpose of corroboration, Mr. Massey would have been freed

. What I'm getting to is whether... sort of what Judge King was asking you earlier whether this was negotiated or to what extent there had been argument about it or just what was going on and maybe you don't know the answer. It was not contested. I know that. I see. Did the lawyers get together to write it up and then just handed the judge and he signed it? I think the district attorney certainly drafted the order and drafted his motion. Whether Mr. Coleman agreed with it in its entirety, he's going to have to tell you but my guess is he didn't object to it too virulently because it accomplished what he wanted to accomplish. Released precisely, Your Honor. The order was added within a day or two. Representation to it wasn't he didn't object to it at all. Not too vigorously but at all. Well, there were no formal objections. That's certain. I mean, there was nothing file on behalf of Mr. Massey before the state court objecting to any bit of that order or the motion. And as I say, they embraced it. So and I guess to they do these kinds of things in North Carolina. Do they sometimes have the lawyers just sign off on the order and say approved by or expected by or sometimes that doesn't say that on here. I mean, that's the practice among the state court a lot to I know most of the written stuff that lots of times were prepared by the lawyers and they were straight back and forth and they didn't like it. They could say inspected by and objected to well and and sign it up and they knew the judge was going to actually the motion is in here. But it doesn't show any service process on the other side. Well, and again, Professor Coleman is going to have to answer that. And I think that he has already presented to us that this was all secret. I think this is the secret. No, no, that's not what he was talking about being secret. That was he knew about that. I can assure the court and I think Professor Coleman will inform the court that he knew the district attorney was going to do this because he asked the district attorney to do this. That had been the point of presenting everything. It is a practice among North Carolina attorneys in a role of court that you run orders by the other side before submitting them. And sometimes there's a percentage correct, John, or before submitting it to a court. So that's certainly a standard practice and to close off the loop for you, Judge Mont. The only fabrication is this single statement in April Pride's testimony and because of the limbing the instruction as a matter of law, that's not the legal cause of the conviction. And I think, John, or touched on what legal cause means in Evans against traumas. There's no way you can say but for that single line admitted for the purpose of corroboration, Mr. Massey would have been freed. That's what is required in order to state a claim for the due process violation. Thank you very much. Thank you. Professor? Oh, I'm sorry. The only way to stop the court. Getting seen on. May I please the court, Daniel Peterson, for Detective Leadford. I appear before the court today to just briefly request that the appeal as Detective Leadford be dismissed. The plaintiff, Pelley, did not object to the magistrate judge's recommendation, but the claims against Detective Leadford be dismissed in their entirety. And therefore, as this court has held over and over again, they are foreclosed from seeking relief from this court. The, quote, the timely filing of specific objections to a magistrate judge's recommendation is necessary to preserve a pellet review of the substance of that recommendation when the parties have been warned of noncompliance. But the district court didn't dismiss what's based on the magistrate's recommendation. That's correct, Your Honor. The district court considered it on the merits. That's correct. Well, in that an implicit rejection of the recommendation that it be dismissed. I don't believe seeing that. Well, go ahead. I thought the Supreme Court, I thought there was law about that. There is sort of resuscitated it. In other words, if you didn't take advantage of the fact that there was no objection. I believe that actually it's that there is no, that the law on this matter is that it doesn't resuscitate it in so far. It doesn't excuse the plaintiffs noncompliance with Rule 72. The district court is free to reconsider it, sue a sponsor, because as in the Matthews case back in the 70s, that plaintiff actually cites to. It never does eviscerate the district court's responsibility for their cases, that being the magistrate's act. However, I do believe that it is still the state of the law that it doesn't just because the district court engages in that sue a sponsored review that does not revive the. The right to an appellate review in this circuit, this has been cited. It was arrested on the technicality that they did file objections. The judge went on, actually did, and considers it on the merits. You're on, sorry. I think I missed it. Procedurally. Procedurally, that's what this motion is about. I fully concur and adopt Mr. Cuny's discussion with regards to why my client is entitled to have the district court judges affirmance of the magistrate judges result affirmed by this court. If that made any sense, Your Honor. However, I do, in the last several years, I did find caseloab by, you know, pro-state prisoners, etc. that did address that they were explicitly warned to not that they needed to file objections

. That's what is required in order to state a claim for the due process violation. Thank you very much. Thank you. Professor? Oh, I'm sorry. The only way to stop the court. Getting seen on. May I please the court, Daniel Peterson, for Detective Leadford. I appear before the court today to just briefly request that the appeal as Detective Leadford be dismissed. The plaintiff, Pelley, did not object to the magistrate judge's recommendation, but the claims against Detective Leadford be dismissed in their entirety. And therefore, as this court has held over and over again, they are foreclosed from seeking relief from this court. The, quote, the timely filing of specific objections to a magistrate judge's recommendation is necessary to preserve a pellet review of the substance of that recommendation when the parties have been warned of noncompliance. But the district court didn't dismiss what's based on the magistrate's recommendation. That's correct, Your Honor. The district court considered it on the merits. That's correct. Well, in that an implicit rejection of the recommendation that it be dismissed. I don't believe seeing that. Well, go ahead. I thought the Supreme Court, I thought there was law about that. There is sort of resuscitated it. In other words, if you didn't take advantage of the fact that there was no objection. I believe that actually it's that there is no, that the law on this matter is that it doesn't resuscitate it in so far. It doesn't excuse the plaintiffs noncompliance with Rule 72. The district court is free to reconsider it, sue a sponsor, because as in the Matthews case back in the 70s, that plaintiff actually cites to. It never does eviscerate the district court's responsibility for their cases, that being the magistrate's act. However, I do believe that it is still the state of the law that it doesn't just because the district court engages in that sue a sponsored review that does not revive the. The right to an appellate review in this circuit, this has been cited. It was arrested on the technicality that they did file objections. The judge went on, actually did, and considers it on the merits. You're on, sorry. I think I missed it. Procedurally. Procedurally, that's what this motion is about. I fully concur and adopt Mr. Cuny's discussion with regards to why my client is entitled to have the district court judges affirmance of the magistrate judges result affirmed by this court. If that made any sense, Your Honor. However, I do, in the last several years, I did find caseloab by, you know, pro-state prisoners, etc. that did address that they were explicitly warned to not that they needed to file objections. They did not, in this court, chatted them as such and sent it back or affirmed the result. And I have not located any case law that I'm aware of that would the added wrinkle of a suisponse review would as a result, waive that that requirement. In fact, in an unpublished opinion, this fact could say that the suisponse review of the merits by the district court is surplussed, directed. I always hesitate to say that the courts recommendation is surplussed, Your Honor. However, I would say that it really is kind of an, I guess it would be a surplussage into the extent that the plaintiffs have thus waived their right to bring whatever the district court, if the district court affirmed the result of the magistrate judge, they have then waived their right to bring it to this court. Obviously, it would be a different scenario if the judge had reversed the magistrate judge. But this court has, and again, an unsighted opinion in a case called in-research warrants served on home health and hospice care incorporated a table decision at 121 F-3rd 700 in 1997, per curium opinion. The court noted that even when the district court revisits an issue unobjected to and affirms the magistrate, the aggrieved party still has waived their right to appeal to this court. And that was in response to the United States government's failure to make timely objections. And I'm happy, see my time's up, I'm happy to take any questions. Thank you very much. Thank you, Your Honor. Thank you. Well, on the last point, let me just say that if the court looks at Thomas versus Arn 474 US 140, I think the law is clear that if the district court examines the issue that is the basis for a magistrate recommendation to Nobo, that then allows the party to appeal as a matter of right. And the court, in this case, explicitly did that on page 476 of the joint appendix indicated that. You're right, it is like this case, like the district court and Thomas reviewed the magistrate judges report to Nobo, yet the Supreme Court determined that a peasant had waived a peasant argument by failing to object to the magistrate judges report recommendation. So the district court can without any appeal look at the arguments to Nobo, but on appeal, we can say their waived. Okay. I don't know that it affects you much either way because you still have your complaint against these other all. I think that's right. It's not a part of this case. That's very a matter of part of this case. Well, it's not actually a minor part of case. So if your appeal with respect to him is gone, then you've lost. We haven't lost. It's just that he's not a party. Right. But he played a substantial role though in what happened, but they they acted together. So the fact that one of them is not a named party isn't going to affect what the evidence is in the case. I would like to and I think this goes outside of the record, but that sort of seems to be how we how we're proceeding here. I would like to explain what happened with the with the exoneration. It's not in the record. There is a record that could be produced. And I think that's the appropriate. You're still in calling that an exoneration. I am and I will explain to you why. Was it not what the prosecutor would he've been within his rights to retry? Based on that order. If you let me explain what happened

. They did not, in this court, chatted them as such and sent it back or affirmed the result. And I have not located any case law that I'm aware of that would the added wrinkle of a suisponse review would as a result, waive that that requirement. In fact, in an unpublished opinion, this fact could say that the suisponse review of the merits by the district court is surplussed, directed. I always hesitate to say that the courts recommendation is surplussed, Your Honor. However, I would say that it really is kind of an, I guess it would be a surplussage into the extent that the plaintiffs have thus waived their right to bring whatever the district court, if the district court affirmed the result of the magistrate judge, they have then waived their right to bring it to this court. Obviously, it would be a different scenario if the judge had reversed the magistrate judge. But this court has, and again, an unsighted opinion in a case called in-research warrants served on home health and hospice care incorporated a table decision at 121 F-3rd 700 in 1997, per curium opinion. The court noted that even when the district court revisits an issue unobjected to and affirms the magistrate, the aggrieved party still has waived their right to appeal to this court. And that was in response to the United States government's failure to make timely objections. And I'm happy, see my time's up, I'm happy to take any questions. Thank you very much. Thank you, Your Honor. Thank you. Well, on the last point, let me just say that if the court looks at Thomas versus Arn 474 US 140, I think the law is clear that if the district court examines the issue that is the basis for a magistrate recommendation to Nobo, that then allows the party to appeal as a matter of right. And the court, in this case, explicitly did that on page 476 of the joint appendix indicated that. You're right, it is like this case, like the district court and Thomas reviewed the magistrate judges report to Nobo, yet the Supreme Court determined that a peasant had waived a peasant argument by failing to object to the magistrate judges report recommendation. So the district court can without any appeal look at the arguments to Nobo, but on appeal, we can say their waived. Okay. I don't know that it affects you much either way because you still have your complaint against these other all. I think that's right. It's not a part of this case. That's very a matter of part of this case. Well, it's not actually a minor part of case. So if your appeal with respect to him is gone, then you've lost. We haven't lost. It's just that he's not a party. Right. But he played a substantial role though in what happened, but they they acted together. So the fact that one of them is not a named party isn't going to affect what the evidence is in the case. I would like to and I think this goes outside of the record, but that sort of seems to be how we how we're proceeding here. I would like to explain what happened with the with the exoneration. It's not in the record. There is a record that could be produced. And I think that's the appropriate. You're still in calling that an exoneration. I am and I will explain to you why. Was it not what the prosecutor would he've been within his rights to retry? Based on that order. If you let me explain what happened. Is that yes or no? No. Based on that order. Not retrying one base. Well, not based on what he agreed. So there was an agreement. Yes. So there's another part. There's another part. There's another part. That's exactly what I'm saying. There is a prosecutor agreed with. He was not going to be the district attorney did with whom? With with with with with Mr. Massey through his lawyers. So Mr. Massey agreed to this order. Didn't agree to the order. We didn't know that the order was being filed. He filed it ex party and called and filed the order and filed the motion at the same time. Do you file the next party? The prosecutor? The prosecutor. And you never saw it. And when did you first see it? He called us. I and told us that the order had been entered and that we could go pick up Mr. Massey. And then the motion for reconsideration. Well, why would we do that? Because he had overtrained with the conviction. Well, I didn't disagree with with the result because that was correct result, which was that the conviction should be overturned. The charges dismissed with prejudice and he would be released immediately. That basically. On the face of the order, though, he could be retried. I don't think so. Well, on the face of the order, you say there's a side deal. But on the face of the order. It doesn't reflect that the prosecutor is barred. I don't think. I am pretty sure that the. It does say. I'm pretty sure that. I'm pretty sure that

. Is that yes or no? No. Based on that order. Not retrying one base. Well, not based on what he agreed. So there was an agreement. Yes. So there's another part. There's another part. There's another part. That's exactly what I'm saying. There is a prosecutor agreed with. He was not going to be the district attorney did with whom? With with with with with Mr. Massey through his lawyers. So Mr. Massey agreed to this order. Didn't agree to the order. We didn't know that the order was being filed. He filed it ex party and called and filed the order and filed the motion at the same time. Do you file the next party? The prosecutor? The prosecutor. And you never saw it. And when did you first see it? He called us. I and told us that the order had been entered and that we could go pick up Mr. Massey. And then the motion for reconsideration. Well, why would we do that? Because he had overtrained with the conviction. Well, I didn't disagree with with the result because that was correct result, which was that the conviction should be overturned. The charges dismissed with prejudice and he would be released immediately. That basically. On the face of the order, though, he could be retried. I don't think so. Well, on the face of the order, you say there's a side deal. But on the face of the order. It doesn't reflect that the prosecutor is barred. I don't think. I am pretty sure that the. It does say. I'm pretty sure that. I'm pretty sure that. I'm pretty sure was dismissed with prejudice. But if the if the if the prosecutor. If the court is interested in what actually happened. Because you know, there's a reference to a polygraph examination, for example. And the question is what what's the point of that? We found the victim in order. It is the striking of the verdicts and the immediate release. Okay. That's what the order is. Okay. We found the victim because we read in the transcript her testimony. She was asked the prosecutor to say, let me direct your attention to those braids. Miss Wood, did the braids go all through his hair or were they just on the back or just on the sides? Where were the braids her answer they went through? That's on page 137 of the joint. Is the journalist playing to spell the polygraph exam? Yes. The polygraph exam. When we we raise a number of issues with the district attorney. I include misconduct by the prosecutor, including the Brady violation. I include in that Mr. Massey did not wear braids at the time of this incident. And what he offered on the spot was that if Mr. Massey passed a polygraph examination, he would release him. I he took the polygraph examination. We were told in advance that he might not be able to pass it because he had been in prison for so long. The person who did the examination said that he thought he was deceptive on a couple of the questions. Well, I'm not sure that that's a correct characterization of what the questions were. That's what he that's how he characterizes it. That's what this record shows. Well, but there's also a record. There is a document that indicates exactly what the question was. But what happened after that was... All we have is what is this court order that says deception on two issues is involvement in the incident, in two his hairstyle at the time. That's what the record report. Except that I don't think that the court is suggesting that you can rely on the result of a polygraph examination. It's just to be allowed, but it looks to me like could you all agree to have the thing? But it was irrelevant because subsequent to the polygraph examination we found the victim. She agreed that the person who attacked her had cornrows. We sent her photographs of cornrows. She confirmed that that's the way the hair was done

. I'm pretty sure was dismissed with prejudice. But if the if the if the prosecutor. If the court is interested in what actually happened. Because you know, there's a reference to a polygraph examination, for example. And the question is what what's the point of that? We found the victim in order. It is the striking of the verdicts and the immediate release. Okay. That's what the order is. Okay. We found the victim because we read in the transcript her testimony. She was asked the prosecutor to say, let me direct your attention to those braids. Miss Wood, did the braids go all through his hair or were they just on the back or just on the sides? Where were the braids her answer they went through? That's on page 137 of the joint. Is the journalist playing to spell the polygraph exam? Yes. The polygraph exam. When we we raise a number of issues with the district attorney. I include misconduct by the prosecutor, including the Brady violation. I include in that Mr. Massey did not wear braids at the time of this incident. And what he offered on the spot was that if Mr. Massey passed a polygraph examination, he would release him. I he took the polygraph examination. We were told in advance that he might not be able to pass it because he had been in prison for so long. The person who did the examination said that he thought he was deceptive on a couple of the questions. Well, I'm not sure that that's a correct characterization of what the questions were. That's what he that's how he characterizes it. That's what this record shows. Well, but there's also a record. There is a document that indicates exactly what the question was. But what happened after that was... All we have is what is this court order that says deception on two issues is involvement in the incident, in two his hairstyle at the time. That's what the record report. Except that I don't think that the court is suggesting that you can rely on the result of a polygraph examination. It's just to be allowed, but it looks to me like could you all agree to have the thing? But it was irrelevant because subsequent to the polygraph examination we found the victim. She agreed that the person who attacked her had cornrows. We sent her photographs of cornrows. She confirmed that that's the way the hair was done. The district attorney at that point said that if the Charlotte Police Department went to Georgia and England, she would have interviewed the victim and that she confirmed that the... That the assailant had cornrows. Then he would agree that Mr. Massey could not have been the assailant and would release him. He sent a Charlotte Police Detective to interview her. He asked her to draw a picture of what the hairstyle looked like. She did. She confirmed that they were cornrows. On the basis of that, the district attorney drafted this order and had it entered and called us and said you can pick him up. And so there was no discussion between you all and the district attorney's office about the order at all. No, I didn't know there was this traveling by the police and the discussion of the results of the polygraph. We were told...no, that's not true. We were told that he was considering foul and emotion. And he sent us a draft of something that he was considering. We sent him a draft and then the next thing we knew, he fouled what he fouled. We did not have an opportunity to respond to it. But my representation to the court is that there are facts, actual facts, that will show that what is set out in that order is simply not an accurate recitation of what happened. Is it incomplete or is it your opinion wrong? He's mistating facts. Both. Yes. That's a pretty serious allegation to make. Another officer of court is actually mistating facts. Well, but that's why I think that... Particularly when you made no suggestion to the trial court that there was a mistatement of the facts as the basis for the relief here. And you didn't appeal it? Because I thought that the emotion was self-serving. And that it was written in order to take away the sting of a wrongful conviction. I think that was the motive for the order. Well, then that sounds to me like a good basis for use, since you had had to, at least as I read the law, to have something close to exoneration or something close to it, to get this word or correct. You're telling me you thought it was self-serving pro-government, giving them a reason. And so if that was so, if you recognized it, it's so. And it sounds to me like you didn't get anything

. The district attorney at that point said that if the Charlotte Police Department went to Georgia and England, she would have interviewed the victim and that she confirmed that the... That the assailant had cornrows. Then he would agree that Mr. Massey could not have been the assailant and would release him. He sent a Charlotte Police Detective to interview her. He asked her to draw a picture of what the hairstyle looked like. She did. She confirmed that they were cornrows. On the basis of that, the district attorney drafted this order and had it entered and called us and said you can pick him up. And so there was no discussion between you all and the district attorney's office about the order at all. No, I didn't know there was this traveling by the police and the discussion of the results of the polygraph. We were told...no, that's not true. We were told that he was considering foul and emotion. And he sent us a draft of something that he was considering. We sent him a draft and then the next thing we knew, he fouled what he fouled. We did not have an opportunity to respond to it. But my representation to the court is that there are facts, actual facts, that will show that what is set out in that order is simply not an accurate recitation of what happened. Is it incomplete or is it your opinion wrong? He's mistating facts. Both. Yes. That's a pretty serious allegation to make. Another officer of court is actually mistating facts. Well, but that's why I think that... Particularly when you made no suggestion to the trial court that there was a mistatement of the facts as the basis for the relief here. And you didn't appeal it? Because I thought that the emotion was self-serving. And that it was written in order to take away the sting of a wrongful conviction. I think that was the motive for the order. Well, then that sounds to me like a good basis for use, since you had had to, at least as I read the law, to have something close to exoneration or something close to it, to get this word or correct. You're telling me you thought it was self-serving pro-government, giving them a reason. And so if that was so, if you recognized it, it's so. And it sounds to me like you didn't get anything. You knew it wasn't close to exoneration. You didn't get it. And it was necessary. Except that there's no requirement under 1983 that there be an exoneration. But you all wanted to start it. And that you allege it's an exoneration. That's how we got into it. You allege it's an exoneration. And it's not an exoneration on the face of it. Well, what's alleged is that it was a conviction in violation of the Constitution. That's different. It is that it's not about how the charges were, how the conviction was overturned, but about how the conviction was obtained. Well, we would agree if the conviction is never overturned. You don't have a 1983 claim. So that this end part is part of your cause. It's part of your showing your injury. And that's what, you know. But my point is that we have the right to challenge statements made in the district attorney's motion. And what's happened in this case, and I think that this will be a very dangerous precedent. Because what it suggests is that you have a tainted trial. That was affected by a fabricated report. And I don't think there's any question about that because since the since the. Since the assailant had cornrows, the description that the police officer claimed missed April Pride provided to him was not an accurate description. That's not what the person's hair looked like. So there was a fabrication. Not necessarily a fabrication just called something's incorrect. Fabrication denotes some bad intent and all those things. She denied it. But there are lots of times that witnesses don't remember right. There are lots of times that police officers don't write things down right. There can be lots of mistakes made along the way when they're in a hurry. And you just conclude that if you find out, get a hold of something and it's a. That is the fabrication to frame somebody up. And that's I don't know that that's fair. Well, I agree. I mean, I think that and that's why what's unfortunate is that there is not a complete record here. Because if we had a couple maybe that's right. Maybe that's what you want is to get a record

. You knew it wasn't close to exoneration. You didn't get it. And it was necessary. Except that there's no requirement under 1983 that there be an exoneration. But you all wanted to start it. And that you allege it's an exoneration. That's how we got into it. You allege it's an exoneration. And it's not an exoneration on the face of it. Well, what's alleged is that it was a conviction in violation of the Constitution. That's different. It is that it's not about how the charges were, how the conviction was overturned, but about how the conviction was obtained. Well, we would agree if the conviction is never overturned. You don't have a 1983 claim. So that this end part is part of your cause. It's part of your showing your injury. And that's what, you know. But my point is that we have the right to challenge statements made in the district attorney's motion. And what's happened in this case, and I think that this will be a very dangerous precedent. Because what it suggests is that you have a tainted trial. That was affected by a fabricated report. And I don't think there's any question about that because since the since the. Since the assailant had cornrows, the description that the police officer claimed missed April Pride provided to him was not an accurate description. That's not what the person's hair looked like. So there was a fabrication. Not necessarily a fabrication just called something's incorrect. Fabrication denotes some bad intent and all those things. She denied it. But there are lots of times that witnesses don't remember right. There are lots of times that police officers don't write things down right. There can be lots of mistakes made along the way when they're in a hurry. And you just conclude that if you find out, get a hold of something and it's a. That is the fabrication to frame somebody up. And that's I don't know that that's fair. Well, I agree. I mean, I think that and that's why what's unfortunate is that there is not a complete record here. Because if we had a couple maybe that's right. Maybe that's what you want is to get a record. Do you want to show or if you can show some of this stuff, but just to come in here and say that everybody is because you're going on a new trial. You know, he's verdict set aside that everybody involved in investigation or a bunch of crooks and thieves. Well, that's not what that's not what fabricated evidence is a is a really a tough situation. When when the when the police write that the that a witness said that Mr. Massey wore his hair in braids at the back of his head. When in fact the assailant wore cornrows when the witness I whom he claimed told him that denies it under oath. Then I think that's a basis that's a that there's a fair inference from that that the report was fabricated. I don't know what else we could have had. And then we can we can look at the police. I don't know the difference between braids and cornrows. I think that's part of the problem is that part of the problem. But it's important to know it's a cultural thing to it. Well, it makes me think I'm but I personally I wouldn't know the difference. But it's I mean I read all this stuff a lot of stuff. It is really important to know the difference because one of the because one has done the difference. Maybe they all should have another difference. I think that maybe it's maybe people are on communicating properly. I think all of that. So that's what you know trials for purposes of I think exploring some of these things. I think all of that is all of that is possible. But the question is did the police officers fabricate their report? The reason it's important to know what cornrows are is because you need long hair to have them. And we had an affidavit and it's alleged in the complaint from two professional barbers that based on a photograph that the district attorney had in his vows. Mr. Massie's hair could not have would not have been long enough on May 22nd to breed. So that's what we meant when I said it's non biological DNA. He simply could not have greeted his hair based on the length of the hair in March of 1998. So if that's true then it doesn't matter what this other evidence doesn't matter. The witness made a mistake. She simply thought that Mr. Massie looked like the person. She was wrong. Thank you, Mr. Coleman. Thank you. We've been very generous. It's a time. Thank you. We will come down and greet the lawyers and then go directly to our last case