Sunday, September 2, 2012

Michael Gargiulo Case: Pretrial Hearing 1

Michael Thomas Gargiulo, date unknown.


UPDATE Sept 14th: Catching my dyslexia errors; edited for spelling, Judge Ohta. My apologies.
This case is one of several I have my eye on of possibly covering when it comes closer to trial.

Case History
Defendant: Michael Thomas Gargiulo, (currently 36 and self-representing)
Prosecution: DDA Daniel Akemon
Judge Ohta

California Victims:
2001 Ashley Ellerin, 22
2005 Maria Bruno, 32
2008 Michelle Murphy (age at time of attack: 28)

Illinois Victim: 1993 Tricia Pacaccio, 18

Michael Gargiulo was arrested on June 6th, 2008 for the attempted murder of Michelle Murphy in her Santa Monica home on April 28th, 2008.

While in LA County custody, on September 4th, 2008 he was also charged in the brutal stabbing deaths of Ashley Ellerin, 22, on February 21st, 2001 in her rented Hollywood Hills home, and Maria Bruno, 32, in her El Monte apartment on December 1st, 2005.

In total, there are seven counts against Gargiulo consisting of felony murder (PC 187a), attempted murder (PC 664/187a), first degree burglary (PC 459) and attempted escape (PC 664/4532(b)(1)). He has been in LA County custody ever since his arrest.

Gargiulo is also the suspect in a 20-year-old cold case murder that happened in the early morning hours on August 14th, 1993 in Glenview, Illinois, a suburb of Chicago and Gargiulo's home town. Sometime after 12:30 AM, 18-year-old Tricia Pacaccio was stabbed to death just steps from her front door.  Gargiulo, a family friend and neighbor was 17-years-old at the time.  On July 7th, 2011, the State of Illinois charged Gargiulo with Pacaccio's murder.

The Chicago Sun Times reported Los Angeles County Sheriff's Detective Mark Lillienfeld (who testified in both Phil Spector trials) indicated that Gargiulo could be connected to the murders of ten women.

Sometime recently, Michael Gargiulo made the fateful decision to represent himself.

August 21st, 2012
This morning there was a pretrial hearing in the Michael Gargiulo case and the short proceeding was pretty interesting.  You might be familiar with this case since the CBS show 48 Hours did a story on the case, The Boy Next Door, that recently re-aired August 18, 2012.

I had been tracking this case for some time, missing earlier opportunities to attend pretrial hearings that happened to fall on the same day as other cases I'm interested in.  When I get downtown, I get to the 9th floor and enter Dept. 107.  I see Mavis at her desk in front of the witness box.  There are attorneys waiting for their clients to be brought out.  Mavis, gets up from her desk to leave the courtroom to retrieve something and as she walks by, she says hello and asks what case I'm here for.  I tell her Michael Gargiulo.  She responds that she's not familiar with that case.  Immediately, I know something is wrong if Judge Pastor's court reporter doesn't know about a case.  And then I remember.  The case is in Judge Ohta's courtroom right next door, Department 108.  Kicking myself internally, I tell Mavis, "I think I have the wrong courtroom. It's 108 not 107."  I tell her that it was nice to see her regardless, and I get up to go to Dept. 108.

I've never been in Judge Ohta's courtroom before, however, it is laid out exactly like Judge Fidler's courtroom, with the entrance doors on the far gallery right and the jury box on the far left in the well.  I'm pretty sure Judge Ohta hasn't been assigned to the 9th floor that long, since he wasn't in Dept. 108 when I was covering the second Phil Spector trial. The courtroom is virtually empty except for a black gentleman in the well.  An older looking attorney comes in and speaks to the clerk.  He needs a single document on a case.  There is a large file box sitting on the counter at the clerk's desk.  BA129067.  I'm thinking that must be an old case, since the filing number is so low.    Something is said about the Ninth Circuit's opinion.

Judge Ohta steps out from the back private area into his clerk's desk area.  He's not in his robes.  He's a very young looking judge.  A woman with a seeing eye dog enters, greets the courtroom bailiff and sits in the chair directly in front of his glassed-in desk area.  I've seen her around the courthouse before as well as on one of the grassy plazas at lunch when I was covering the Stephanie Lazarus case.  I don't know her name or what she does at the court.

Department 108 has seat cushions and back cushions.  It's a welcome relief.  The court reporter comes out to her desk and I notice how tall, slender and pretty she is.  She has slightly dark skin and beautiful dark brown, almost black straight hair pulled back into a ponytail.  She's smartly dressed in a gray pantsuit and wearing black framed glasses.  There are several tchotchke figurines on her desk.  Judge Ohta comes back out and puts on his robe right at his bench.  He has on white shirt and striking baby pink tie.

A defendant is brought out.  There is some sort of mix-up with the attorney.  The attorney who was called to be here in court --I think from the alternate public defenders office, but I'm not positive about that-- had represented a convicted co-defendant; not this defendant.  Judge Ohta, the older looking attorney and the clerk are all trying to figure this out.  Judge Ohta asks the defendant who he is represented by.  It's not the attorney who is here in court today.

I have a note that Judge Ohta greeted the woman with the seeing-eye dog, asking where her dog is. I believe the dog was under her chair and he couldn't see him from the bench. Judge Ohta said something to the effect of, we missed him/her.

Judge Ohta calls the defense attorney and prosecutor to the bench where they talk off the record.  The older defense attorney is explaining something to Judge Ohta.  It's possibly about a change in defense counsel for the defendant at the defense table brought in from custody.  Judge Ohta says, "That's okay. Mistakes happen."

Judge Ohta goes on the record, and addresses the defendant and explains another attorney was called to represent him by mistake.  The attorney here in court, cannot represent him because of a conflict of interest.  The defendant Judge Ohta, "Can I ask Mr. Rubin to defend me?"  Judge Ohta explains that, "Habis can be filed at any time." Judge Ohta sees that as a potential problem.  Although the other defendant was convicted, there could be a potential conflict of interest down the road via (appeals?).  Judge Ohta states that he will need to contact the Bar Panel and leave it up to them to decide on the defendant's request.

Judge Ohta states the case is 0-60 as of today, and we don't need a time waiver.  He will call the Bar Panel and see what the situation is and let them deal with it.  Still, Judge Ohta asks the defendant on the record if he wants to waive his right. Then Judge Ohta addresses the defense attorney, "Sorry to inconvenience you Mr. Rubin."

There is a short period where Judge Ohta leaves the bench and then Michael Gargiulo is brought out.  There is an impeccably dressed be-speckled man sitting with him, Christian S. Filipiak, a criminal defense investigator. Filipiak's jet black hair looked slicked-back from where I was sitting.  Gargiulo's tall.  The LA County Sheriff's web site lists his height at six feet, two inches and his hair is closely shaved to his head.

Judge Ohta takes the bench and we go on the record.  Prosecutor Daniel Akemon for the people and I believe it's Judge Ohta who states that Gargiulo is "self represented."  The DA's office tells me that DDA Akemon, who joined the DA's office in October 1999, was recently transferred to the major crimes division from the hardcore gang division.  I did a search of the DA's web site for Akemon's name and came up with 20 articles where he is mentioned.  Unfortunately, my notes do not say who speaks first but I believe it is DDA Akemon.

"The last few appearances have been (with?) due to discovery issues, and today.... zero of 90."

There's a discovery motion first sent (prior?) by the DA to the defendant. The prosecution released a CD disc containing 17,319 pages of discovery to Mr. Filipiak, investigator for Mr. Gargiulo.  At this time the prosecution is working on (wit? witness?) discovery issues.  One of the issues is, getting the materials in printed form for the defendant and who pays for that.  I believe Akemon states that the DA's office has calculated that it will cost about $2,000.00 to copy all the material.  The DA's office can do it at Mr. Gargiulo's expense.  I believe DDA Akemon states, "I can't confirm what Mr. Gargiulo has, since (his attorney left)..."

Mr. Filipiak will apply for finances (to pay for the copying?).  A copy service will be found.  The copies must be on yellow paper.  And (Filipiak?) will work or, working with the legal advisor at the jail.

Gargiulo speaks up and states "I did have a motion filed today to have a paralegal, to get a DNA expert...."

I see Judge Ohta is now looking over some white lined papers that Gargiulo apparently had wrote his motions on.

Judge Ohta quickly looks over the motions the defendant has written.  One motion is for an order to receive law library privileges , another motion is for an order for the defendant to receive boxes of various documents (in his cell?) ant the men's central jail.  There's a third motion about, I think not being handcuffed while using the law library, but I'm not positive.  I will try to obtain copies of these motions and put them up on T&T.

Judge Ohta tells the defendant these are "sheriff policy issues.  "I can make orders, but (they are?) subjective to the Sheriff's Office policy.

Gargiulo tells the judge that (someone?) said it would be okay.

Judge Ohta responds something to the effect of, this is more of the issue of inmate security. (It's? totally?) in the sheriff's control.  The court can't step in and tell through....

One of the issues debated is whether or not the defendant can receive (color?) copies of the crime scene photos.  I believe Judge Ohta says, he's not positive he can "order" the DA to print copies of crime scene evidence photos .  "Not sure the law requires color copies be given to you."

Judge Ohta explains to the defendant what the prosecution is required under the law to provide to him. The prosecution is required to give you copies...that they plan to use at trial. (snip) and any exculpatory evidence (they collect/discover?). They're required to provide you with exculpatory evidence.

DDA Akemon tells Judge Ohta that the photographs (and other evidence?) was transferred to digital format, on a CD and given to Mr. Filipiak. It was put on an external hard drive.  The issue is Mr. Gargiulo's physical possession of those photos.  The people object to Mr. Gargiulo having physical poession of the photographs.

I believe Judge Ohta states that Mr. Filipiak has copies of the photographs. What's to prevent him from giving those to the defendant?  Unfortunately, it's not clear in my notes if Akemon asks the judge to order Filipiak not to give these photos to the defendant.

Judge Ohta states that both sides need to litigate that.  Judge Ohta states something to the effect that he knows he has the power under 1057, but that's specifically to witnesses.  But whether or not the (sue? suspect?) is entitled to color photos.... He's entitled to photos, or copies of photos. He's entitled to that.  But (this? is?) one step beyond that.  I believe Akemon responds, "It was our expectation that this would be litigated.

Gargiulo speaks about (? snip) "I don't think .... there will be other experts that will have to review those photos with me."

I believe Judge Ohta answers something to the effect of, I don't know that (the defendant?) has physical access.... not your constructive access.  The issue is can you (defendant) have it on your person. (snip) I don't know what role of (?) that come(s?) into play.  (Whether?) it would be under 1054 PC.....

There is some back and forth about the prosecution making a motion preventing the defendant from having color photos of the crime scenes in his cell, and the defendant having the opportunity to present a response.  Judge Ohta gives two weeks for each side to file motions and replies.

Judge Ohta rules they will come back in two weeks to receive the motion(s), on September 5th, and set the case at zero of 90 on that date.  All parties agree and Judge Ohta makes sure Gargiulo makes his waiver and that Gargiulo will be given an opportunity to respond.

At this time, Mr. Filipiak speaks up and tells the court that Gargiulo has not had new glasses in four years. He had new glasses made for him.  Judge Ohta authorizes Filipiak to give the glasses to him.  He also states that the law library(?) at the jail has two law books, but they are from 2005. He has two brand new copies of those books to give to Gargiulo, and Judge Ohta authorizes the transfer of those books to Gargiulo.

It's ordered that the paper copy of the case file that is going to be made for Gargiulo be on yellow paper.  I gather that any legal document the defendant has in his cell, must be on yellow paper otherwise it's confiscated by the Sheriff's Dept.  Judge Ohta tells the defendant he understands that Gargiulo has already had one such confiscation already.

Gargiulo asks if he could get something about filing a motion and Judge Ohta responds, "Your investigator could help you with that."

And that's it.  Outside the courtroom I ask Christian Filipiak for one of his business cards to ensure I get his name spelled correctly.

Understand that my budget is tight, but I hope to get copies of all the recent motions filed by the defendant and the prosecution after the September 5th pre-trial hearing.

What is that old saying about representing yourself in court?  Something about, having a fool for a client? Sprocket.

Next court hearing is September 5, 2012

TruTV Crime Library
Michael Gargiulo Wikipedia
Chicago Sun Times
CBS 48 Hours The Boy Next Door (six part video of episode)
CBS 48 Hours Extra Michael Marguilo's Screen Test (video)