UNITED STATED DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Case No. CV02457/08

JULIAN HEICKLEN,

-v-

JASON TOALA et al,

July 17, 2009
3:46 p.m.

Hearing in the above entitled matter pursuant to Notice, held at the Manhattan Federal Court 500 Pearl Street, New York, New York, before Tracy Cook, a Shorthand Reporter andNotary Public of the State of New York.


Job No: 153476 2

A P P E A R A N C E S :

JULIAN HEICKLENPro Se
734 Rutland Avenue
Teaneck, New Jersey 07666

MICHAEL D. HESS, ESQ.
Attorneys for Jason Taola, et al
Office of the Corporation Counsel
100 Church Street
New York, New York 10007

BY: MAX McCAIN, ESQ.

ELIZABETH M. DAITZ, ESQ.

THE JUDGE: Please state your name for he record.

MR. HEICKLEN: Julian Heicklen. Youwant me to spell it? I'm the plaintiff. Andcounsel pro se.

MR. McCAIN: Max McCain for defendants Commissioner Kelly and Officer Toalo.

MS. DAITZ: Elizabeth Daitz, also forCommissioner Kelly and Jason Toala. Goodafternoon, Your Honor.

THE JUDGE: Good afternoon.

THE JUDGE: All right.

OFFICIAL REPORTER: I have no information. I assume she is acting as a private secretary.

MR. HEICKLEN: Yes.

THE JUDGE: We are keeping an official transcript and the parties are welcome to obtain a copy of the official transcript from the court reporter.

MR. HEICKLEN: I understand. But I have had previous experience with courts, and it usually takes at least six months to get a transcript from the court. I don't know about this court. I have had that problem in other courts.

THE JUDGE: It is not true in this court. And the court reporter could get you a transcript within a very brief period of time. Very brief. There are also rules in the court about recordings other than by official court reporters, not clear to me how any of the equipment got up into the court, but this is just a scheduling conference, before you ever do
something like that again, please advise the court.

MR. HEICKLEN: I did. I called the pro se office on Tuesday. I spoke to Ms. Allan. she said I could bring anybody I wanted.

THE JUDGE: She said you could record?

MR. HEICKLEN: She didn't say those words. She said I could bring anybody I wanted. I said I am going to bring a court reporter and that was the end of theconversation.

THE JUDGE: All right. At this point, there was a dispute in the papers about the plaintiff providing releases. That appears to be resolved. This is my initial conference with you, the most recent letter was from the counsel for the defendants. And that letter asked for, among other things, a stay of this matter and I endorsed the letter indicating that theconference remained scheduled for today.

The defendants suggested that case be stayed because the criminal case against the plaintiff remains pending in the state court. And that defendants suggested, for the protection of the plaintiff's rights, that case be stayed. So what is the plaintiff's position?

MR. HEICKLEN: Plaintiff's position isthere is no case in the criminal court. The docket number I got was a docket number on the arraignment papers. What happened at the arraignment, was that the first thing the magistrate said was before I -- the prosecuting attorney has a plea bargain for you, the plea bargain was, if you plead guilty he will settle for time served, which was one day. I refused on the grounds -- well, said if I was going to do that, I wouldn't have bothered to get arrested at all. I said, I'm pleading not guilty. I want up at a grand jury hearing and I want a jury trial. Neither the counsel for the prosecution or the magistrate -- abdomen to thatrequest for the grand jury hearing or that again plead the magistrate questioned whether I was entitled to a jury trial, which indicated that she didn't know what the case was about. And anyway said I was entitled to a -- the DA said I was entitled to a jury trial.

I was then giventhe arraignment papers of which you and Mr.McCain have copies. For your convenience, I havereproduced them again and I have copies for both of you. Here's one for the court if you want it. The arraignment papers are underneath here. And the arraignment papers have no magistrate name on it. They are not signed by a magistrate.

She asked me if I would attend a hearing on June 20th, I agreed to it. I was not ordered to it. I was not given any paper indicating that I had to attend. I wrote to the court. I requested a habeaus corpus hearing, I requested a grand jury hearing, a grand jury trial, and the court never answered.

I've also included in this the rules of the New York State Court. And these are CPLR 30. And it says that I have to be tried within90 days of arrest. And I haven't been. Either been committed or indicted. The next thing it says is an appearance ticket has to be issued.No appearance ticket was issued to me. There isno charge indicted. There was no notice of the rights of recovering supporting deposition, which is another requirement. And the last requirementwas that I need to be fingerprint, and I was notfingerprinted. So there are five things that arerequired to have a criminal trial and none of them were done.

And I tried to get -- and I amentitled to a grand jury hearing because the rulein New York is that if you can serve more than a year in prison, you are entitled to a grand jury hearing. And I am charged with a misdemeanorwhich carries a maximum one year sentence. And I have served a day, so I could serve a year and aday. And, therefore, I am entitled to a grandjury hearing. And no grand jury was --

in fact, there was never any correspondence with the court. Three days after the arraignment, the DA contacted me through a third party. Somebody inthe public defender's office and said that they were willing to drop the charges and dismiss the case if I would promise not to get arrested for six months. And not to sue the police. I turned them down because I intended to sue the police.

And the DA has made no appearance in this case.There is no prosecuting attorney who has filed as an attorney, there is no judge who has filed anappearance, no judge has been appointed in this case.

No grand jury has been convened. I have asked for a habeas corpus hearing. I got no response. I wrote a letter asking what is the purpose of this meeting on June 20th so I could prepare for it. They did not respond. On June 8th, I sent a letter to the court saying I wouldnot appear on June 20th because I no longer haveanytime to prepare for this meeting and Ididn't. And so I got no correspondence at allfrom the court or the DA and neither a judge orDA made an appearance in this case.

There is no case. Now, what happenedis, and I have heard as only by hearsay, thatwhen I did not appear, a bench warrant was issuedfor my arrest. I have now heard this from twosources. I have never gotten a written statementof this. This is not a real serious attempt atarrest. I got no written numbers no extraditionnumber was sent to New Jersey. I checked with the New Jersey sheriff's office and I immediatelywent to -- when a bench warrant was issued, Iimmediately went to the State Supreme Court andfiled request for an RJI request for judicial
intervention for relief.

When I went to the clerk's office, the clerk said oh, don't bother us with this case. We are too busy. I said there is a bench warrantout for my arrest. His advise was stay out ofNew York State. Now, there is no trial in anyform or way. There is in existence and there isno trial going to be there, the only reason thisbench warrant is out is to prevent me from suingthe police. And in fact, I have taken actionagainst both the judge and the clerk of the courtand the DA. I have sued them because I believetheir actions are of a criminal nature.

Their job is to prosecute crime, not to protect criminals. And what they are doing is protectingthe police and it is unconscionable. That is not
their duty. They should be prosecuting thepolice, not protecting them and anyway, I have alawsuit against all of them. It is in thiscourt. Judge Bear denied it, it is now in theCircuit Court of Appeals. I filed my brief, hehas until Tuesday to file his brief. So thequestion that is there is a criminal case againstme is bizarre. It is just bizarre.

Now, there is a bench warrant. Iassume there is a bench warrant out for myarrest. I've never been notified. I have heardthis from three people, the last of which was Mr.McCann who was the third person who notified meof this. I have never been notified of this bythe court. I Assume there probably is a bench warrant out.

THE JUDGE: All right so....

MR. HEICKLEN: They have had noattempt to arrest me.

THE JUDGE: The status of the case atthis point is there has been the complaint on thedefendants and there's not yet an answer ormotion on the part of the defendants, right?

MR. McCANN: That is correct, YourHonor.

THE JUDGE: And there is a letter bythe defendants, which says they think the caseshould be stayed because of a pending state courtcriminal case against the plaintiff. Plaintiffdisagrees that case should be stayed, conteststhe that there is a pending criminal case, butindicates that he has heard that a bench warranthas been issued for him.

It would appear that the next step isover opposition from the plaintiff to stay thecase, which the stay is usually for the benefitof the defendant in a criminal case because ofissues of both defending a criminal case andproceeding with a parallel civil case. It would appear that the next step is an answer on thepart of the defendants.

MR. McCANN: Your Honor, defendantswould be happy to answer in this case directly,afterwards defendants would expect to renew theirmotion to stay this case, as it would also be to defendant Toala's benefit to have the defense ofconviction in plaintiff's criminal caseunderlying, which would establish a privilege forplaintiff's arrest in the first instance.

MR. HEICKLEN: But, Judge, the DAdoesn't want to try this case and nobody wants totry this case. All they want to do is protectthe police. In fact, legally, there is no case.They have violated five of the conditions of theNew York civil code. So that the case isnonexistent.

THE JUDGE: Okay. Hold on, Mr.Heicklen.

MR. HEICKLEN: I will give it to you.

THE JUDGE: Please, no, no. It issimply of course, I'll, you know, consider anymotion that's made. A letter is not a motion.

And as I said, a stay in a civil case is usually for the benefit of the defendant in the criminalcase. I mean, the notion that you should waitfor the criminal case to be over because it maybe of assistance, I mean there are certainly --make that as a motion and I will listen to anyopposition. Tell me what the claims in the case are. False arrest?

MR. HEICKLEN: I got all of themhere. And none of them are true.

THE JUDGE: Hold on.

MR. HEICKLEN: I have listed them.

THE JUDGE: Mr. Heicklen, hold on.Listen to my question.

MR. HEICKLEN: Okay.

THE JUDGE: What are your claims inthis civil case against the defendants?

MR. HEICKLEN: They kidnapped me.

THE JUDGE: Sorry?

MR. HEICKLEN: They kidnapped me.

THE JUDGE: Okay. False arrest.Okay.

MR. HEICKLEN: Not false arrest.

THE JUDGE: Okay. Kidnapping.

MR. HEICKLEN: Look --

THE JUDGE: Just tell me what theclaims are.

MR. HEICKLEN: My claims are againstthem?

THE JUDGE: Yes.

MR. HEICKLEN: That perjury in fact, when I saw what the claims were, I notified thecourt that my defense in the criminal case wouldbe perjury of the prosecutions witnesses. Thatwould be my sole defense. Because everythingthey have stated is a lie. Everything. Thereisn't one true statement in the claims. I mean,usually think tell some truth. This was justblatant. Let me tell you. You want to hear whathappened at the incident and you can see what'sgoing on here. Some of the claims are physicallyimpossible. For one thing, I was standing allalone, they ordered me to join a crowd. One thecharges against me is failure to disperse. Ifyou are standing all alone, how could Idisperse? I mean. That is one of the chargesfailure to disperse. I'm standing all bymyself. They ordered me to join a crowd. Irefused on the grounds that I had the right tostand there, but there were other reasons as 1well. That is reckless endangerment ordering meto move into the crowd. Also the crowd wasn'timpeding pedestrian traffic. I would have beenparticipating in a crime when I accepted thecase, when I asked them what are the reason you are placing me understand arrest, they gave me one reason. Failure to obey a law of a policeofficer. That was the only reason they stated atthe scene of the crime. They havestatednumerous reasons since. As I said, none of them are correct. And many of them were -- are physically impossible.

THE JUDGE: Okay. How much time doesthe defendant want to mover or answer.

MR. McCAIN: Two weeks, Your Honor.

THE JUDGE: How much?

MR. McCAIN: Two weeks.

THE JUDGE: All right.

THE JUDGE: Time for defendants to move or answer extended to July 31st. Do the defendants intend to move or do the defendants intend to answer or don't you know yet?

MS. DAITZ: Your Honor, part of theproblem with respect to moving, is that we areunable to corroborate anything that Mr. Heicklenhas said with regards to the criminal court. Andthe district attorney's office, as we can'tobtain information from their file as their fileis still open, because the criminal charge isstill filed. What we will do is answer and untilwe have the documents or a formal motion to stayafter we have answered --

THE JUDGE: Yes.

MR. HEICKLEN: I will give thempermission to get anything they want from the DAor any other court, they can have anything theywant.

THE JUDGE: You know, the defendantshave raised a question that they asked for arelease from the plaintiff to get the files whichweresealed. And then the plaintiff said I gavethem a complete release. You want the files, getthe files.

MR. HEICKLEN: I will get themanything you want.

THE JUDGE: And then I got the letterfrom the defendants saying, you know, our bestinformation now is that, you know, the case isnot sealed because it hasn't been disposed of infavor of the accused and, the refore, isn'tautomatically sealed under the New York StateLaw. So we can get any public files.

MS. DAITZ: That is true, Your Honor, but the district attorneys' office doesn'tconsider their open file public for the purposesof turning it over to Corp. counsel in discoverythat is the only thing we are unable to obtainthat point.

MR. HEICKLEN: What can I do to help them obtain?

THE JUDGE: Please, please no one can take down, at least our court reporter can't takedown two people speaking at the same time.

THE JUDGE: I would think that theprosecutor's would not turn over an open file ifthe criminal case is still open, even with arelease by the plaintiff.

MS. DAITZ: Exactly.

THE JUDGE: In this case, they wouldsay, there is a law enforcement privilege it's anopen file. We turn over what we are required toturn over under the New York State law, as itapplies in criminal cases. So there is nothingthat the plaintiff can do by signing a release toget you what is otherwise a private file of theprosecutor.

What is public, is public. And youcan get that from a public file. So you don'thave to deal with a release. At this point,plaintiff has said he will give you a release ifyou want a release. But I would think thatplaintiff could not go into the criminal case andsay here's my release, give me all your files.So the plaintiff's giving you the release in thiscase doesn't provide any other information, ifyou want any other information, the plaintiff hassaid he will give you a release. But the docketsheet in the state criminal case should indicatewhat are the charges, are the charges open or notopen. And so, time to move or answer is July 31st. You tell me that there may be a motion tostay, but not clear to me as I have said what adecision of motion for stay would be.

MS. DAITZ: Your Honor, if I may, justspeak to that. There areimplications specificto this case with respect to the motion to stay.First, Mr. Heicklen has made clear that his onlyclaim in this case is essentially a fourthamendment claim, which we would refer to as falsearrest. Mr. Heicklen categorizes as kidnapping,but regardless, the outcome of the criminal charges against him would be fully dispositive ofthis entire civil action, which I think washeavily in favor of the stay compared to casesthat there are other claims which would not be sodirectly implementary by the parallelproceeding. And in addition, there is some concerns with respect to potential Disario(phonetic) obligations, with our communicationwith defendants Toala who is the complaintant inthis Heicklen criminal case. So that's in essence why we would renew our motion to have astay after appearing on behalf of defendantsKelly and Toala via answer.

MR. HEICKLEN: May I say something atthis point, Your Honor?

THE JUDGE: Yes.

18MR. HEICKLEN: Okay. First of all,the charges have been given to both you and Mr.McCann. I have -- and I have given you today. Ihave repeated them. The Toala's deposition isincluded. He gives all of the charges. Myresponse to all of these is given in materialthat was sent to the court along with the case.

I sent a copy of the reproduced record. And Ihave replied to everyone of those situations inpapers that you already have.I asked -- I also brought my own copyalong with me, but you have that information. Sothat is if there is a stay in this case, what youare doing is dismissing the case.

THE JUDGE: Sorry?

MR. HEICKLEN: If you put a stay inthis case, what you are doing is dismissing thecase because nothing is going to happen in thecriminal court. The criminal court situation ismoot. Nothing will happen.Nothing. Nothingcan happen. All of the state laws have beenviolated. There is no judge, there is no DAappeared. There is no response to any motions.I haven't been indicted. I haven't beencommitted. Nothing can happen. So it amounts toa dismissal.

THE JUDGE: I will certainly considera motion, and I will consider the response. AndI will consider the reply. I'm certainly notgoing to decide the motion based on a letter fromdefense counsel. So I will let the defensecounsel, if the defense counsel wants to make amotion, the alternative is the case simply movesforward. And if the case were, worse case, it isnot stayed forever. In any event, but I haven'treached the point that I've said that I wouldgrant a stay. I said I'm not going to grant astay based on the letter from the defendants. Sothe time to move or answer with respect to thecomplaint in this action is extended to July31st. If there is any motion to stay in thisaction, that motion should also be filed by July31st. And you want an opportunity to respond ifthere is any such motion, right, Mr. Heicklen?

MR. HEICKLEN: Certainly.

THE JUDGE: How much time would youwant to respond to that motion?

MR. HEICKLEN: Well, if it catcheswhen I am in town, I can do it within two weeks.I am in and out of on town often, as you areaware. I will be out of town for a week inAugust. But ordinarily, two weeks would beenough.

THE JUDGE: Okay. Well, if youneed --

MR. HEICKLEN: If I need more --

THE JUDGE: If you need more time,just write me a letter before the response isdue. So motion to stay is due by July 31st.Response by August 14th. Reply by August 24th.And I mean, the defendant shouldconsider whether there is any purposes orpurposes served by staying this case rather thansimply moving forward with this case. But I willconsider the motion. Okay.

MR. HEICKLEN: Your Honor, I have alist of issues I would like to bring out, if itpermissible.

THE JUDGE: Sure. Go ahead.

MR. HEICKLEN: I mean, my feel is thatmy belief is that it has been since thebeginning, that there has been an attempt toblurry this case. Itwas first filed in January 19 of 2008. Nothing happened to it. Then I filed with the circuit court in order to get some judgeto make a decision to get this case moving. Andwith both Judge Wood and Judge Bear were recusedat my moving to do so. And I have the feelingthat the -- I'm frustrated in this case, as youprobably become aware,through my correspondence.

One has to do with discovery. You'reaiding or you were willing to aid, it turns outthe question is moot now, aid the defendants inobtaininginformation. You ordered me to providethem information, but when I asked you for anorder to get them to give me the names of theJohn Doe's, you refused. When I sent in anothermotion to get the names of not only the JohnDoe's but all of the people who were witnesses tothis event, because I want to -- I intend tobring all the defendants and all the witnesses,all the people who were mentioned and involved inthe event as witnesses for the prosecution.

1Because I believe I can get them to commitperjury on the stand. And that is why I'm goingto call off the defendants and witnesses for the
prosecution. And that I ask for -- that theclerk return the letter to me. And said that thecourt doesn't aide in discovery. So you have aided the plaintiffs -- the defendants indiscovery, but I can't get any aid in finding outwho the John Doe's and the people involved at theincident were.

I once asked for an extension of timebecause I would be out of town for a few -- for acouple of weeks, asked to the middle of April, itturned out it was moot. Nothing showed up on my desk in that time, but I was just covering myselfin case I did. And I didn't want to be late in replying. You denied that. You've already giventwo extensions to the defendants. First theywere supposed to reply by May 15th, then it was June 1st, and then it was July 21st, and now it's going on again. This case is dragging on and onand I am an old man. I hope to get this casefinished while I'm still alive. At the rate itis going, that is not going to happen.

1Now, Toala was served and neverreplied. And I asked the judgment be madeagainst him. And it says it would be if hedidn't answer within 30 days. As far as I know,they have not yet answered the case. In the last letter that Mr. McCain sent, he said he wasrepresenting Mr. Toala.That was the first Ihave heard of it. He had never sent in noticethat he was representing Mr. Toala, not that I received a copy of anything. So that in fact,Toala does not have counsel yet. As far as the court knows, there has been no notice ofappearance on behalf of Mr. Toala and it has nowbeen three months since he has been served and wehave heard nothing from him at all.Now, Mr. McCain may want to make anappearance for Mr. Toala, but it is three monthssince he has been summoned. Now, I have also putin a motion to ask how the jury procedure will betaken care of. That was sent back saying youdon't aid in discovery. Not you didn't send itback, the clerk of the court did.

I want toidentify the John Doe's. I mentioned the clerk of the court says and you also say that you won'taid me in that. And I intend to call the DA andthe defendants as prosecution witnesses. And Iwant tointerview these witnesses before trialindividually in the presence of a courtstenographer and someone who could render an1oath. And I intend to put them all on thestand.

THE JUDGE: Mr. McCann, are yourepresenting Mr. Toala?

MR. McCAnN: I am, Your Honor.

THE JUDGE: All right Mr. Heicklen,with respect to default judgments, defaultjudgments, are not favored in the court.

MR. HEICKLEN: No, sir. The defaultyou mean Toala?

THE JUDGE: They are not favored inthe court. If a defendants shows up and isprepared to litigate, the court favors casesbeing litigated on there merits. My recollectionis that I gave you an extension of time when youwere out of town. And that I rescheduled today'sconference specifically.

MR. HEICKLEN: Right.

THE JUDGE: So that you would be ableto be here.

MR. HEICKLEN: That is right. You --this one you agreed to. An earlier one, youdidn't. The earlier one turned out to be moot.Nothing happened.

THE JUDGE: And I have --

MR. HEICKLEN: You did today.

THE JUDGE: And I have never denied you an extension that was prejudicial to you inany way.

MR. HEICKLEN: That is correct. That is correct.

THE JUDGE: Finally, with respect tothe issues of advice with respect to courtprocedures, such as jury procedures or the like,questions should be directed to the pro se officeof the court, okay?

MR. HEICKLEN: They were.

THE JUDGE: Who can provide assistanceto pro se litigants. They don't represent pro se litigants, but they can provide assistance withcourt procedures.

MR. HEICKLEN: That is as exactly asfar who I sent it to, I make -- may have sent itto McCann.

THE JUDGE: Who is not the person.

MR. HEICKLEN: Okay.

THE JUDGE: But do you have theaddress and telephone number for the pro seoffice of the court?

MR. HEICKLEN: Yes, I do. Yes, I do.

THE JUDGE: All right. All right.

MR. HEICKLEN: My feelings are, assure you know is that I'm not getting a partialso far that I'm not getting partial treatment inthis court. But perhaps that can be remedied.

THE JUDGE: Mr. Heicklen, this is thefirst time that you've appeared before me.

MR. HEICKLEN: That is correct.

THE JUDGE: I deal with every case onthe facts and the law with completeimpartiality. And I will decide this case withcomplete impartiality. I urge you, if you havequestions with respect to court procedures toplease consult the pro se office of the court. Iurge you, that in terms of dealing with thecourt, to do it in terms of formal filings, whichis why I've asked for as you have heard for amotion from the defendants rather than simply aletter. You all have the opportunity to respond,and they will have the opportunity to reply. In
the course, obviously the issues that you had,one issue that you raised was the identificationof John Doe's. I don't remember if that issuedwas raised with me or with another judge of thecourt or with the pro se office. My response ifit had been raised with me would be to tell thedefendants, that to the extent that there are John Doe's named in the complaint who areinvolved in the case, such as arresting officers,under the case law, the defendant has anobligation to identify John Doe's. And so theyshould identify the John Doe's and produce thenames of the John Doe's. They can then work outwith you the issue of service on a John Doe andthe issue of an amended complaint that names theJohn Doe's specifically. It is an obligation onthe part of the defendant.And the way in which it is usuallyhandled is, the court tells the defendant to makewhatever inquiries are necessary to identify whothe John Doe's are, providing that there is6sufficient information to be able to identify theJohn Doe's. And so I tell them to the defendantsnow, and I'm sure the CorporationCounsel's anoffice know about what their obligation is to identify John Doe's, yes?

MS. DAITZ: Certainly. Your Honor wehope to work with Mr. Heicklen to clarify in hispleadings what he alleges any John Doe officerdid. So as to actually identify the people thathe's referencing, we will definitely do that.

THE JUDGE: Okay. I'll wait. So timefor defendants to move or answer July 31st.Motion for stay if the defendants chose to makethe motion, July 31st, response August 14th. Toreply, August 24th.Anything else?

MR. HEICKLEN: I would like to leavethis with the court.

THE JUDGE: Sure. Pass it up.

MR. HEICKLEN: This is a second copyof all the arraignment papers, but it is thefirst time you have seen it that I have given youthe New York State Law requirements for criminalcase. You probably have them but --

THE JUDGE: All right.

MR. HEICKLEN: Anyway. In case youdon't, there they are.

THE JUDGE: All right. Anythingelse?

MR. McCANN: No, Your Honor.

MR. HEICKLEN: No thank you, Judge.

THE JUDGE: Good afternoon all.

(Time noted: 4:20 p.m.)

C E R T I F I C A T I O N

I, TRACY COOK, a Certified ShorthandReporter and a Notary Public, do hereby certifythat the foregoing is a true and accuratetranscription of my stenographic notes.I further certify that I am not employed bynor related to any party to this action.

TRACY COOK