the morning may please the court then you know smith for plaintiff mr hadid in order to understand fairly the issues on appeal in this case i think it's critical that the court understand the actual words that were spoken by mr hyde dede while testifying at trial which resulted in a criminal prosecution and a conviction terminating his job with a conviction which was ultimately reversed he was accused of perjury and this is a six to seventy two of the transcript of answering following questions did you speak with layer of grease all at the headquarters no i don't recall question did you interpret for any other new york city police officer who question to know this was not perjury because as mr hyde did have earlier testified he was not there to speak with anyone he was there to act as a translator and that's why he said as he said in the transcript earlier when asked a similar question about whether or not or hear about this the perjury was overturned by the television and when he was convicted so where we're going back and relive again perjury cases i guess my question it's a fair question judge walker and the reason why is because if you understand the words were spoken and you understand the context it is crystal clear that this was a malicious prosecution i will i will move quickly through to jury indicted the jury convicted that's you know it's rare that a person can succeed on malicious prosecution under those circumstances regardless of the fact that it's overturned on appeal very a lot of the charges are dropped and then you might have a you know malicious private here or there was a conviction in the ordinary street kind of crime i would agree with your honor but this is not the ordinary kind of street crime the record of the crime is in the words that were spoken under oath and that's what i'm trying to impress upon the court here is that if you look at the words that were spoken under oath nobody could possibly draw any reasonable conclusion were probable cause to believe that mr aidid committed the crime of perjury and that's why i'm focusing on these words this is not a street crime where somebody made a bad judgment appellate court in the second deportment looked at the record and said this is not a crime as a matter of law and it's focusing on the crime here or the alleged crime that's what i'm trying to do here today and that's why i'm bel something which i ordinarily would not do judge walker so and the other question the question he was convicted on was well and this is at page three three one of the transcript question well you that the last time you had communication with her again referring to this woman correct me if i'm wrong was at or around the time she was in french custody correct answer that is correct yes sir i said that that is a misstatement and you know it's a misstatement because on the preacher earlier he was asked this question and he gave this answer do you recall having any communication with the defense his girlfriend this same woman between the time of the arrest and today and mr he said i'm a half so how can you ponder how can anybody rationally draw a conclusion that he's trying to deceive when on the path earlier of his transcript she says yes i did have communications with her instead he tripped up during cross examination by a fast talking criminal defense attorney looking for an issue and this what i just read to you was what he was convicted on a felony felony perjury this is not there is no evidence here in fact he's on the next page of the same questions he's asked did you have an e mail communication with her he didn't try to run away from it he didn't try  also said this is not a crime because there's no intent to deceive and you haven't shown it ok viewing the evidence in the white most favorable to the prosecution and they said it's not material to anything at issue how can you get a grand jury to indict somebody for felony perjury when there's no materiality as a matter of law the appellate division held the net should be raised judicata in this court today held that there sleeping the truth there was as the appellate division said it's not material because there was no question about whether or not mr hyde the translation from french to english was at issue and so for that reason nothing that he said was relevant to anything at the proceeding in the criminal case and in the huntley hearing the amended complaint specifically allege that the complaining witness who was the prosecutor in mid that this crime alleged crime was not material if these statements were not material she said on cross examination in the perjury trial that nothing that mr hyde said was was material to the huntley hearing which was the voluntariness the question was whether the briefs i didn't think we were going to be arguing over whether or not the conviction was appropriate or not in the in the in the state court i thought we were going to concentrate on retaliation for various actions that were taken against him particularly the ultimate terminations ultimate terminations but you know you can argue whatever you want here you're i have only limited amount of time and i was concerned that these issues about what was actually said and what was actually at issue or going to get in the weeds somehow they're in the weeds if you read the briefs and that's was my concern i will stand here and talk all day long if i have to about any issue that the court has for me any issue how much my point is that you have ten minutes yes you've chosen to use it this way but that's ok you're the now relic judge const made a fundamental error he said you cannot amend the complaint and i lay out in the brief why i believe that is a fundamental error it depart substantially from all established practice in this circuit and in thirty years of practicing law i've never had a situation where i was never given an opportunity to woman judge cause was just flat wrong or that there's no way to get around that he was using an abuse of discretion standard use yes i mean i think yes i think it was abuse of discretion because if you look at the record this is also tortured part of the week but we had a right to amend as of right and that was eviscerated by the court's rulings ok and yes one of our points is that we had a rule fifteen a right to amend and that was just completely taken away without any basis at all but even if you don't want to get into the weeds on that issue clearly it was an abuse of discretion and this court has so said that it's an abuse of discretion not to allow somebody to amend when the amendment will cue or any defects in the pleading that's playin those allegations because i made a prior googling and that's collateral stoppel and you're out that is a complete reversal of well established law which requires the court look at the amended pleading and see whether or not it states a claim for advocates they did not present the case to the jury they did a massive investigation and they cover up the truth the reason why this perjury case actually got as far as it got was because they manufactured this story about a relationship they did a massive investigation as we only found out later finding their e mails phone records confer with homeless security with joint terrorism task force before us with the intelligence division they had a massive record it's the file is this big showing no relationship at all and yet they stood in front of judge marrissa new york kings county supreme and said there was a person relationship they knew that was false a prosecutor one a personal relationship it may not have been a romantic relationship but the met in paris they exchanged e mails and isn't that a peculiar thing to do with the someone who's not to be an accomplice of a murder she  materials that it was it was a birthday cards a greeting card i respect for your that's incorrect what happened was all the detectives in paris gave her their business cards she felt terrible about giving up she called him he picked up the fall she asked to meet he said he would meet she sent him an e mail thank you very much for meeting with me and he responded saying you're welcome happy new year we're not questioning whether or not he acted appropriately or not that's not the issue the issue is what he said about it later on or didn't say right and if you if you look at the actual statements what he said is yes i did send an e mail he didn't lie about that so i mean that in her he was not he did never ever as denied meeting her that is a fabrication it continues to be a fabrication if you read the briefs by the palace a fabrication a good morning your honour's may it please the court we've laid out in our brief in great detail why the dismissal of almost all the claims was appropriate why didn't state a claim and my summary judgment was appropriate on the first minute retaliation claim i mean i can go through and summarize that again quickly for the court but i do want to respond to one or two points that the magistrate made in the question that he says it's a law that she was was an accomplice mr hardy took her confession when he was in in paris in which she admitted that she helped her boyfriend dispose of a dead body and the body of the victim that he just was later convicted of manslaughter for killing wrapped in paper in plastic in trash bags drove around put him in a dumpster put clothes in a dumpster and then left for paris that next day or two so mr hardy was aware of all that information at the time that he's then having all these subsequent contacts with mr song but to return to the the sort of the merits of his actual claims judge walker's i think you were were getting at if you look at the malicious prosecution claim there is a presumption of probable cause that arises out of both the indictment and the initial conviction that second department of health divisions decision the said that they hadn't met the burden of proving and to the elements of of perjury intentionality materiality beyond a reasonable doubt and that goes back to your observations as walker that's a far different had they waited until two days before their deadline to seek an amendment to seek an extension at which point the the motion to dismiss or even brief they have filed their opposition that's a traditional time i think when people follow their opposition the motion dismiss they say alternatively we would like to amend our complaint on the following basis so they they didn't show the good cause for amending this required when you're trying to do it under a scheduling order but here and what i've read in the at the hearing was that if judge grants granted in you know if you deny feet in deciding that motion is message it gives you leave to amend i will give you fourteen days from the date of that and use that phone or not correct but to speak to futility there's still nothing in the potential and that amended complaint that changes the analysis of of why the claims fell to state a claim even if you were to accept it i mean th did the prosecutor in the first trial say there was a relationship didn't she say that point blank the prosecutor did not on on her direct examination or in the perjury trial no none of that came up on cross examination she was asked a question about like so to you don't know anything other than this one contact in paris and she responded by saying well actually i'm aware of other contacts because she learned that information during the recess in the trial that was called after th e question about translating the e mail she testified that she was told that by the defense the murder defendants defense counsel during the trial that he had other documents and told her here are things and she also testified that she observed the defense counsel arguing with the murder defendant because the murder defendant didn't want other things coming out about the contacts between mr hardy and lee the resawing but it turns out that there was no relationship between proved there was no relationship this in this case is going from the very beginning it's a i don't want to call i would say doesn't substantiate that they felt especially but they didn't proceed on that theory if you look at the opening statement in the in the perjury trial they talk about that he did not disclose there was the meeting in paris there were three to four there were two or two phone calls and three to four e mails going back and forth some sixty e mails and that was the basis in the the the it actually was a bench trial right on the judge in reaching his decision talking about sentencing didn't mention that you know there was an issue as to whether he concealed the relationship in what way since it was but he didn't they sit on a question of whether there was a romantic relationship versus a different relationship did these contacts did they affect the outcome of the trial was was the murderer convicted he was convicted of it we just tried for  they why would they charge him with perjury why would they last they were just interested in somehow trimming his sails i think because there they should have been embarrassed by the decision in the second department which said there's no evidence here for the case that you brought isn't that humiliating for another prosecutor or how i think you prosecutors have cases overturned on  now finding out whether anything remains of mr deeds losses that will allow him to proceed and maybe get his job back is that where we are is that the appropriate  i mean he has he has a number of civil rights ninety three claims and he also has a claim that he was you know that part of his retaliate against him that he claims is that he was denied reinstatement after his he loses his job automatically upon a felony prosecution was forced to be in retaliation for something yes he claims that the prosecution was long after the attack acts that he claims he was a tally against what was the prosecution clear when you know there's a you know what you know there's been an indictment that's not in the spew that's pled in the complaint yes you have to you have to allege facts that would be sufficient to overcome the presumption and he didn't do that in this case have to allege facts that shouldn't have been brought in the first place and are are those facts sufficient to go forward a malicious prosecution no because it can't the decision whether a prosecutor knowledge or initiate the prosecution to go forward that's all covered by  appeals the presumption may be overcome by evidence establishing that the police witnesses have not made a complete and full statement of facts where they have misrepresented or falsified evidence or they have withheld evidence when they have otherwise acted in bad faith  prosecution's witnesses and tainted the grand jury which is not subject to cross examination not not an open proceeding not a trial a full trial but the situation you have a case where they exemption was rebutted after a trial in which the plaintiff was convicted i don't have a case that's directly on point i don't think that there's any case that i'm aware of helping a bad that's really on all fours otherwise i think somebody would be showing it actually so i don't have the answer to that but i do know that the law allows the presumption of probable cause if it applies to the twelve the sixth age to be rebutted when there's evidence of fabrication here they made up this whole story the record is replete with them making up story about of that he had a romantic relationship that he traveled to france with her that she was a suspect that he gave her miranda rights they manufactured all of us and all of this available to be shown at the trial if it was actually shown it was available to be shown at the trial and and wasn't wasn't there cross examination on this this wasn't this part of the part of the mix that the jury had for the prosecutors had this stack of evidence from email servers from phone records luggage and tolls travel records conferring with all of these third parties and the prosecutor also during cross examination denied that there was any investigation at all so even if it might have been available this was flatly inconsistent with what she was saying she said there was no investigation i have a stack in my office of this type of investigation she said there was a romantic relationship and here's a stack of information that says there was no relationship if you come to this file and what at what stage of the seedings on december to two days after judge granted the initial motion to dismiss i was handed that file in the context of a reinstatement hearing in front of one police plaza and it had all of i a p s confer roles with homeland security with joint terrorism task force  it had his travel records it had her travel records they got phone records they got everybody who visited the criminal defendant when he was locked up in state court they had this entire file showing no connection at all never disclosed during the perjury trial never flat out at the heart of the case and if you read the record they said in their opening statement that he lied about his relationship in the perjury case they the prosecutor said he was lying about his relationship with bree so karl testified that this is all we know about the least salacious emotion he said it was a romantic relationship in closing arguments they argued to judge mary as the hoop hoop who was the trier of fact that well of course she was upset who would have been upset if they had been confronted with the fact that the this witness had this ex girlfriend who was this person this is all just manufactured and the prosecutors had it in their file and this disk this prosecutor grio who we try to meant he was sitting in the had made a request and this is not in the record an appendix but it is in the record below document number nineteen on the day the judge has issued a scheduling mordor the date that day i had a conference with him and this is on page twenty nine and thirty of the transcript which is in the record of the district court i said judge i want to be able to mend as of right and i want to have the benefit not just of their motion to dismiss but also their reply papers and judge wright said ok i'll look at it and i'll see what i can do then he issued the scheduling word which said that no no amendment to the pleading should be permitted after eight fifteen fifteen so two days before that date on eight thirteen i happen to be enjoyed races courtroom on this case and i said judge there was a delay in briefing the motion to dismiss i'd like to have the benefit of the fully brief motion and josh ray has reversed himself and said no there submitting this motion if if you were to up page eighty eight don't do it in the motion what happened then is the judge could issued an order granting most of the motion to dismiss a november thirtieth on december third i was in you think i have nothing better to do i was in judge who says courtroom arguing about why this reinstatement hearing shouldn't go forward and we discussed their judge's recent decision and i told judge coons your honor i want i have a right to amen and i want to be able to exercise that right to him and i pointed out of my papers in opposition to the motion that i wanted to amend he said you're out of luck he said no you're you're out of time your time to amend as of right has passed which frankly i think is incorrect and up consider if you make an application for an amendment but i'm not likely to grant it within two weeks of that date i filed a formal notice of motion to mend the other alarming facts that i've tried to impress upon the core about how these prosecutors and the i a b officers who are in the courtroom knew that this was a bogus statement totally bogus statement about a romantic relationship and they allowed a miscarriage of justice to go forward seeking to profit from and fortunately the second department said this is not a crime thank you thank you very lively