734 Rutland Avenue
Teaneck, NJ 07666
August 6, 2009

Judge John G. Koeltl
U. S. District Court S.D.N.Y.
U. S. Courthouse
500 Pearl Street
New York, NY 10007

Re: District Court Case #08 CIV. 2457 (JGK)

Dear Judge Koeltl:

At the hearing of July 17, 2009, it was agreed that Defendants would submit a brief to stay the civil trial until after the criminal trial was completed. I responded that there was no criminal trial. You ordered Defendants to submit a brief supporting their position by July 31, 2009, and that I was to reply by August 14, 2009.

On August 3, 2009, I received Mr. McCann’s response. He did not even address the issue of a criminal trial. Nevertheless I am enclosing my response to the question of a criminal trial. You can see from my response that:

1. There never was a criminal trial.
2. There is not now a criminal trial.
3. There never will be a criminal trial.

Since Mr. Mcann did not even address this issue, I assume that that my response settles this issue.

In his letter of July 31, 2009, Mr. McCann raised a new issue based on DVD video evidence of the incident of April 17, 2007. He argues that the video shows that there is irrefutable evidence that there is no material evidence for trial. On the other hand, I argue that the video provides irrefutable evidence of the guilt of the police officers. This is a dispute of fact, not of law.

In order to resolve this contradiction requires the questioning of witnesses, a discussion of issues and interpretations by both sides (opening and closing statements at a trial), and a decision by a jury of peers. A judge is not permitted to decide issues of fact if a jury trial is demanded.  A judge can decide if evidence is admissible. Since both Mr. McCann and I wish to have the DVD video entered as evidence, I do not see this as an issue.

Furthermore I have listed all the facts of the incident commencing on April 17, 2009, in my complaint to the Court and the accompanying documents. It is my contention that these documents provide irrefutable evidence of the guilt of the police officers in denying my constitutional rights. If the Court wishes to have me affirm my statements under penalty of perjury as witnessed by a notary public or a person able to perform an oath, I will be happy to comply.

Mr. McCann also argues that Police Commissioner Kelly should not be a defendant. This issue has already been discussed twice; once by Judge Wood and once by Judge Baer. Judge Baer allowed Commissioner Kelly to be included. How many times does this issue have to be resolved?

I hope that this letter will convince you that Mr. McCann's new issue concerning the DVD evidence must be decided at trial. If not, I will need considerable time to digest his information, especially since I will be in La Jolla, CA from August 8-16. In order to research all of the laws and decisions that Mr. McCann quotes will require about one month after my return.

Frankly, I am losing my patience. Mr. McCann has no legitimate case and is just fishing for excuses and delays. His hope is that he can delay this trial until I die. I cite the following:

1. He demanded my social security number in violation of law and for no apparent reason. It certainly could not help him get information from the state courts, because those courts do not have my social security number. He probably was going to use that number to investigate my private affairs in order to cast doubt on my character.

2. Mr. McCann convinced you to order me to provide information that I do not have and that I have demonstrated does not exist. He falsified his request to you by claiming that I would not provide release forms.

3. Three times I sent Interrogatories to Mr. Mcann to provide identities of the John Doe Police officers. So far he has ignored two of these and has until August 15, 2009, to respond to the third. I filed a motion for you to order Mr. McCann to provide that information, but you denied my motion. I filed a second motion, but the Clerk of the District Court returned it with the statement that the Court does not help litigants with discovery.

4. On March 2, 2009, Defendants Toala and Kelly were served with A Summons, Amended Complaint, and Plaintiff interrogatories to discover identities and addresses of John Doe Defendants. Mr. McCann entered as counsel for Defendant Toala on July 17, 2009, well after the 30-day limitation.

5. At the hearing of July 17, 2009, Mr. McCann brought up the issue of a stay of the civil case until the criminal trial is over. Since there is no criminal trial and never was one, apparently he has now dropped this issue.

6. His latest ploy is to ask for dismissal of the case based on the claim that the DVD video shows that there is irrefutable evidence that there is no material evidence for trial. Exactly the opposite is true. However the truth or falseness of that claim is irrelevant at this time. A jury must make that decision.

7. He claims that Commissioner Kelly should not be a defendant, even though two judges (Wood and Baer) have already discussed this, and Judge Baer ruled that he could be.

It is your duty as a judge to order Mr. McCann to stop this nonsense. If he does not, then he should be found in contempt of court.

Sincerely yours,

Julian Heicklen
Counsel Pro Se
Encl: The Criminal Non-Trial

CC: Max McCann, Assistant Corporation Counsel, The City of New York, Law Department, 100 Church Street. New York, NY 10007

Pro Se Office, Room 230, U. S. District Court, Southern District of New York, U. S. Courthouse, 500 Pearl Street, New York, NY 10007