the idea is kind of was not turning over the grand jury minutes in a timely way but that was one of the factors joshua ok there's there's more because because what at least with respect to that issue what undid the conviction was not that you had a right to the grand jury minutes and didn't get it and that's misconduct by the prosecutor it's that there was a speedy trial violation because the time that you did get the grand jury minutes eventually but it was it was in the time that it took to deliver them was not excludable time under the state's speedy trial law and therefore the indictment should have been dismissed at that stage as a sanction but that's not misconduct  instance in refusing to turn over the grand jury minutes in a timely fashion the district court found that that was not in the strait of fact that that was similar to making a brady determination and therefore it's ok and cited some case  subtle so why not in the sense that this is not a case where the failure to turn it over was improper or even in a sense the delay if the defendant said oh now that i've got them i'm going to get acquitted so i'd rather be vindicated i don't care about the speed trial i waive that there would have been a problem the prosecutor didn't commit some kind of sense here or some unethical behavior what happened was that time should have been counted by the judge in determining the speedy trial issue but the reason that if i made the reason that that speedy trial issue of rose and the reason for the state statute and in the trial and the constitution provision for speedy trial is that it is your due process rights to have a speedy trial and when she violated my client's due process rights by refusing to do the administrative act that was ordered by the court there is no discretion the court to give me the transcript and she refused to do that for months on end keeping the prosecution going that was a violation of the due process that was that was not to court the court didn't have those minutes and that was not sure i understand what is is there is a due process right to get grand jury minutes within some specific time frame where does that come from well because you because the basis for the dismissal originally was that not providing the court the grand jury minutes pursuant to the court's order to do so prevented the court from evalu the motion to dismiss and therefore this case was kept in limbo the court could not act we could my client cannot move forward until the minutes were turned over and this was a refusal to turn over those minutes keeping the prosecution going beyond an appropriate time period right there that's remedy for that because that's a violation of state law is to dismiss the indictment as a speedy trial violation of a state adjudicated within a particular time right well if i may that i believe that would be a different issue because the motion determination to is not immediately impact my client's rights the act of turning over the minutes there was the fact that it was a statutory speedy trial right doesn't mean there wasn't also a constitutional speedy trial right in the state court proceedings and i was both as a local prosecutor and a federal prosecutor you know in the state court proceeding which is a much different than a federal there was what was a pleasurable in her delay in giving those minutes was found to be improper and if i can i don't know if i should say well to the other issue might my first one which i find fascinating with regard to this the system is t grand jury so these are the same minutes that were refused to be turned over in the grand jury proceeding they coincidently did not have a signed four person signature on it that she had offered a indictment returned in court are you or are you alleging that the indictment lacked a signature and was defective and she should be proceeded on that because you seem to be saying things in your briefing right my adversaries previously for this that the indication to me and there was no indictment returned but for and i'll lay out the reasons for that but for purposes of this application on a nine hundred eighty three and a motion to dismiss indictment filed you need an indictment have jurisdiction to proceed if there's no jurisdiction is no absolute immunity this court's over and over again so as to the more where they get mad at me and say that there was no indictment and  a regularity to that none of that existed you think the handwritten notice a fabrication is that what you're suggesting i'm not saying it's a fabrication but i'm saying it doesn't amount to a certification of anything it's not a legally significant it's a handwritten note that there's no name on it that but it seems to me that i'm not sure where that would be a violation of due process unless you are alleging that you have a plausible claim that the grand jury never voted that this was entirely a fraud from the beginning  agree with but that doesn't confer forever absolute immunity and what i'm arguing is one there is this irregularity that is contrary to what the court stated we go but second all of the indications and i should be allowed to take proceed in this case rather same purported to regional indictment one that was filed with the court without signature and one that was in the attorney's follows as produced by the d a s office now as a fork that was such a red flag to me you would never have to can't be a comic  and this had actual verbiage different and i can no you that the one that was produced to council was a more appropriate than the one that was filed with the court which had some verbiage missing but it could have been i don't know that it was insufficient if it was challenged but also put on top of that just there is in the prosecutor's file a version of the indictment that is different is a version of the indictment of the first one not the superseding ones perfect clean you know but the first there's a different environment from what was filed with the court without signature and a different indictment that was produced to trial counsel the documents were different and it was never and there's no manner in which you can draft that's in the prosecutor's file and somebody produces the wrong one not the one that was actually alternately voted on but and this is where you know not to make myself witness but having been in the grand jury system that right and that you don't go through rather than a dismissed on the on the on the pleadings and if i can add to that also my client was rigid if that indictment right to porter to rejoin me carried a five year mandatory minimum ok he the district attorney's office made an evaluation the probation was an appropriate sentence not incarceration he denied he said no i'm innocent i'm not accepting that right the district attorney then went and really superseded the indictment for a fifteen year mandatory minimum again that was probably the first thing i saw that makes absolutely no sense to me if you make a determination as a prosecutor that non incarceration is appropriate and you have a five year mandatory minimum that the person is facing right now you would never go through the dark troubling difficulty of superseding indictment for a fifteen year mandatory minimum and that's just one factor that was the initial red flag that had me delve more deeply you might be the most indicative person ever right so it's possible but then that's the same indictment where she refused to turn over the grand jury minutes to the court to have it's the same indictment that wasn't signed right so you start having all these factors and i say so i'm pleading factors and all these circumstantial factors based on the fact that this is the same and i'm just saying that the d a s office knowingly proceeded without a valentine that they knew that wasn't a valid indictment and the not absolute facts it just doesn't seem plausible that assuming there was an error here in the filing of the original indictment that could somehow be that the basis for some kind of enough areas plot against your client  either either she and i don't you know not the whole story but she either knew it always made aware of it at some point and continued to prosecute knowing that there was no proper indictment and not going back to the court to try and get permission to go and represent which is again why would you ever first again in a situation where you're refusing to turn over the grand jury minutes the indictments not signed and you're going back and re indicting on a fifteen year mandatory minimum when you've already offered probation why if you don't know that you have a problem with the original indictment and i'm saying yes and this is what's caused a lot of what back of me and i don't know at what point without doing further discovery but i should be there or not factors here that maybe i could have put it better but the factors are in there and their pledge these facts that i should be allowed to go forward with the action of the stage again this and again we would have no we wouldn't have had to judge the senate statements reverse of that was the automatic response well that's too extreme and it's a media like good morning writers my name is aaron bloom and i represent the city of new york and detective vasquez you know enters the appellant was arrested tried and convicted for threatening a coworker gunpoint him to a pipe for thirty five hours in the basement years later is conviction as your honest have pointed out was vacated on neural state statutory speedily speedy trial grounds that the that there were various prep aspects of prosecutorial misconduct that with regard to the allegations against the city he claims are the policy result of a policy of deliberate indifference to the training and supervision of assistant district attorneys in the d a s office with regard to their prosecutorial functions and that the city should be liable for that now none of those claims though all of those claims were properly dismissed by the district court in this court should affirm first the false arrest claim was time barred from the outset the statue of limitations is three years from arrest this claim was brought about twenty years after the arrest  in terms of whether that was raised in terms of whether that was raised below it was raised below the fact that it was mentioned in a footnote has to do with the fact that the pleading itself doesn't say whether the claim the nine hundred eighty three a claim against detective vest as was false arrest or malicious prosecution or some made up claim and so be understandably the city's council in detective best has its counsel below wrote we think this must be malicious prosecution because there's no way it's a false arrest claim that's been time barred decades ago so it's hard to blame them for doing it that way for addressing the only claim that could plausibly still be you know alive in terms of timeliness next you know even if there wasn't time barred there was a clear probable cause to arrest based on the fact that the rest was based on the complainants testimony that the victim complained directly to the police officer and and said this is what happened there was no reason to suspect that there was anything there was a problem with veracity there you're ever seen makes the argument that there was a police officer failed to take account of the existence of two delivery complaint from a victim describing plausibly a crime that happened to him the police officer has to go investigate further chase down all possible leads before before having probable cause to also say even if even if you spoken to those two witnesses as we know from the trial the jury found beyond a reasonable doubt after healing hearing from those very witnesses that the  straightforward the supreme court in conic specifically said that for exactly this type of more now a claim that there must be a prior pattern of similar violations for there to be notice of for deliberate indifference claim which is what we have here otherwise without such a prior pattern there is no notice of a need to train on a particular area so you can't say that the d a s office was where the da was deliberately indifferent to such a need  absolutely clear that this case the claim fails under conic and so we don't even need to reach that question but i'm happy to address it which is that it's not no it's not clearly established at the city is the municipal policy maker i'm sorry the d policymaker for the city with respect to this this case this court i will say that this court did hold that in walker so we have first the court this court held in baez that the district attorney is not a we limited that to a certain just whether to bring rather to bring prosecutions and in walker the court case involved a failure to train with regard to brady in a court in that case said well that's an administrative functions so in that case the da does serve as the city policy making my argument is that on this point walker is no longer good law for  primarily because what the court the supreme court did in van de camp which was invented camp the supreme court said prosecutorial immunity applies not just to the conduct of the prosecutors allegation of a failure to train or supervise prosecutors and that even if you characterize that you could characterize that it is as administrative failures to train and supervise with regard to the conduct of prosecutions how you conduct those things is inherently  i would agree with you with your honor that it is not a direct reversal in the sense that it's not it's a prosecutorial munity individual capacity case that you would say is abrogated nevertheless i would say it's abrogated nevertheless because what this what the the camp and what this court has done in baez and walker was set up a distinction where there are some things that fall on administrative side of the line because they're because functionally they don't implicate the same sort prosecutorial functions and concerns in terms of independence and judgment and and legal knowledge that are required for that we want to be that that are necessarily part of the of that line and that for that reason we argue that walker should should be overruled and i think you mourning patricia bailey assistant district attorney on behalf of former district attorney robert m morgan thaw and former assistant district attorney brenda morris i'd like to but what's mission to jump right in with the jurisdictional issue  i would like to see what happened with regard to this indictment and what the record reflects so the record reflects based upon the certification that in fact after the presentation were councils client testified before the grand jury and indictment was voted charging that in the plaintiff with kidnapping it was as required under the c p o filed by the four person of that grand jury what the supreme court clerk da da da does not file an indictment it is the grand jury for person that does that the four person brought it up to the supreme court clerk it was entered into their book their filing book according to the certification and then a parent made its way into the supreme court jacket the file the court file for this particular case because the transcript of plain arraignment indicates that the clerk had the indictment and range him on the indictment eighty and morris did not rain him on the indictment did not file the indictment in court that day but you raymond the original indictment would be there in court correct the original signed indictment should be in the court that is the normal practice with respect to the argument that she refused a d and morse refused to disclose the grand jury minutes and they've never seen the light of day that is completely inconsistent with the transcripts from the criminal trial where count the plaintiffs criminal defense attorney actually cross examined the witness with respect to the  with respect to some of the facts he said regarding being chained up to a pipe or a boiler from that first indictment so clearly he was the case was presented to the grand jury looks like it was the six term horn at the six pm grand jury according to the certification was filed by the four percent it was then put into the supreme court jacket for the court clerk to rein the defendant on now to believe otherwise would have to or to credit counts  to the clerk's office this spring court clerk's office the clerk that arraigned him that day and the justice that presided over not only the arraignments but going forward over the trial matters all who are in cahoots with a i do not believe nor do the allegations make out but even if it were even if there was no either signed formal indictment or for some reason another a t m or is just never took a vote which is another whole administrative nightmare from the grand jury's point of view just can't just not vote a case but even if that were the co the case she would not lose her absolute immunity protections because at a minimum she had a semblance of jurisdiction over the matter so and counsel has not worked the plaintiff has disagreed with the argument that clearly as an assistant district attorney for the county of new york she had the authority under the penal law statutes and under the c p l to prosecute the defendant for the criminal defendant for a claim for charges of kidnapping and the other charges that were in the first indictment that would  seem to me pretty clearly be the case if the prosecutor's simply overlooked that the grand jury foreperson had not signed where he or she is supposed to sign the prosecutor doesn't get a copy of the signed indictment not unless we have to go that's not the norm he would have to go to the clerk's office to get a copy of that so in in our file they would not normally be a signed copy of the indictment and your response to the yes because again she had the authority to go forward and to prosecute for the charges that would set forth in the original dikembe and that is what she is charged with it may be gross misconduct it may be you would consider it ugly facts but nevertheless the purpose of absolute immunity would still protect her from that and also just with respect to respond to the argument like many other decisions birth both in the supreme court and in the circuit there are we decided many of them in the in our briefs cases like the warney cases with respect to brady so warney i think is particularly evidence again with respect to the criminal defendant and identifying the other perpetrator was clearly brady there was debris and the story black and white that's absolute brady and the prosecutors to there did not dispute that the dispute and i case was over the delay of the seventy two day delay in releasing so to hear there's no dispute that the court required her to release to produce the grand jury transcript  this is what you're relying on that brady case that is just a blatant violation if there's a clear rule that says you have to give over the grand jury minutes or some other thing that there's clear instruction to the prosecutor on what she's supposed to do and the judge says do were disposed to in the rule the failure to do that is just a blatant violation it's not doesn't make it a ministry of function it's still the prosecutor failing to comply with her discovery  typically when the or when the court says provide a sequential orders as to provide the grand jury minutes they don't say by next tuesday or by you know you've given a reasonable amount of time and clearly because they were so many other motions pending on this case before the court she was awaiting the decision on the enjoyment motion by counsel not to reprint sent be that as it may have violated the statutory thirty three what's her explanation for or not or was there ever an explanation given for the delay in producing that they were not in the papers i know my office argued on appellate levels multiple times that it was because they were the defendant the criminal defendant dilip contributed to the delay by having these multiple motions before that the time should be excluded but there was also argument that the defendant the criminal defendant had consented to different periods but ultimately the court of appeals in the second and the first department both said look this is a threshold decision again going to whether or not it relates to the handling of a criminal matter this is a threshold threshold issue we need to decide first and foremost whether the prosecution can even go forward thank you determinations get whatever whatever you want to take has it has an aspect of discretion to it what the corcovado found was the simple turning over of the minutes pursuant to an order the act of handing them up when you've been directed to operation for trial you can see is that preparation for trial that is turning over a grand jury minutes now it's already happened it's simply relevant to the court's evaluation of the of the  of the of what happened at the grand jury proceeding but it's not the d a s preparation for trial this is a well it's wraps defense counsel's preparation for trial and it's part of the efforts to get ready for trial including producing relevant materials but the defense counsel doesn't get the the grand jury minutes but ok i mean it's submitted to the judge judge looks out and to cite i mean isn't it all part of the prosecution of the case the preparations for trial that the carrying on of the case it's part of the carrying on of the case from the court but it's not part of the carrying of the case from the prosecutor the  whether or not she had absolute immunity for the act of handing out a transcript and if and i buy that argument any time a prosecutor violates an order from the judge you call that administrative because there's a clear direct and prosecuted and do it and so there would not be absolute immunity only with regard to something as simple as handing up a pen or a transcript of something that's that's plain and doesn't involve discretion if the court is that pen that's no different from him going to pan to him in the transcript i mean look at this if this is an administrative question the objection has been sustained and the prosecutor asked the question and later there was an argument perfectly good argument on appeal that this was prosecutorial misconduct and for some reason the conviction is affirmed a way guy spends a lot of time in jail and eventually he gets the opportunity gets released he gets the opportunity to file a lawsuit there's no immunity there because there was no discretion the judge just told him do not ask that question he asked that question i would respectfully disagree in the sense that that said that this is question and that because the court told you not to do it but you're engaged in a trial and you're going to highlight for the jury this issue again even though it might put you into sanctioning or some other but the act if the act of handing up a transcript to the court is not some sort of administrative non discretionary act then as soon as the prosecution starts everything  is has to be involved it's it would be you know a rule that envelops everything and this court has never gone that far which is why all the cases that they need to cite to involve some discretion some pretty issues something of that nature there are a lot of things that have to get done and some of them slip through the cracks and some of them are things that were supposed to have been done and they're clearly supposed to have been done they would there's an order to do it and it just didn't get done there didn't get done in a timely way which is really what's at stake here because once again the issue is not a violation of some right that the pendant had to have this transcript either for the defendant or for the judge for anybody it's that there was a speedy trial violation and the right not given a transfer created a situation of a speedy trial violation and again this is not just one appear that he didn't get again the point it went is who violated his speedy trial rights the judge violated his speech trial rights by not dismissing the indictment his own lawyer as was the basis for the reversal was ineffective in not noticing the speedy trial violation and making a motion for his appellate lawyer whichever it was he didn't do that right to have this due process to have this case proceed in an ordinary man and when they didn't do that but you know you you got you know the side but by the administrative act of handing up a piece of