Friday, October 10, 2014

Michael Gargiulo Case: Pretrial Hearing 23

Michael Thomas Gargiulo, in custody, date unknown.

UPDATE 10/12: edited for clarity, grammar
Friday, October 10, 2014

The 9th Floor
I arrive on the 9th floor about 8:15 am. Chris Nicely is here before me. He’s wearing his standard sweater vest. Chris is a handsome man with a perfectly trimmed mustache and beard.

I stop and say hello and to chat about both of us being lefties. I then move down to another bench beside the only electrical outlet in the hallway. Right behind me is DDA Garrett Dameron. He stops to chat with Nicely, too. The lobby was empty downstairs and the hallway on 9th is empty too. Just a scattering of people from the general public and an occasional attorney.

Christian Filipiak arrives and chats with Chris Nicely in the hallway. When Dept. 108 is finally opened, I follow the two defense investigators inside.

Inside Dept. 108
Judge Ohta is on the bench, without his robe. He’s chatting with counsel in the well. It’s a prosecutor I’m not familiar with. I get transfixed at Judge Ohta’s tie, a nice contrast against his white shirt. It’s a vibrant diamond check pattern; the colors a blend of turquoise, gray and black.

The pretty court report comes out from the back jury area rooms and sits at her desk in front of the witness stand. I look longingly over at the large container of Red Vines at the far edge of the clerk’s desk. Red Vines were a favorite sugar fix, back when I used to eat sugar.

Judge Ohta’s clerk is at her desk. Filipiak approaches the clerk and they exchange greetings. He may have dropped off a thick stack of papers; I’m not positive.

Judge Ohta chats about the time he worked at a law firm.  Judge Ohta says something to the effect that lawyers are treated “badly,” and that people see lawyers as a “necessary evil.”  Now counsel and the judge are discussing medical issue cases, and what is a “reasonable standard of care.” I believe it’s Judge Ohta who comments that reasonable standard of care doesn’t necessarily mean “no issues” arise from that reasonable standard.

I notice over at the clerks desk, a white bakery box. It’s not perfectly square, but rectangular and tall.  There are a stack of napkins on top of the box.

8:45 AM

Judge Ohta steps away from the bench.  His bailiff is immersed in his smart phone. I believe Gargiulo’s investigators are discussing a sports issue, or players in a specific sport. I don’t know which.

 A woman enters wearing a gray dress and a black suit jacket. She stops to chat with the bailiff then takes a seat in the third row.  The attorney at the prosecution table is intently perusing his smart phone.

Judge Ohta emerges and asks his clerk for the Gargiulo file, prosecution motions. A youngish looking defense attorney shows up for a hearing in the other case. A tall, bald mustached man enters the courtroom, looks around and then leaves.  The defense attorney who just arrived and the prosecutor in the well go over their calendars.  Afterwards, the defense counsel goes back to the holding area.  It’s almost 9 AM.

The bailiff leaves his desk and takes a peek into the bakery box.

Judge Ohta, still unable to find the specific prosecution motion he’s looking for tells his clerk, “What I’m looking for is [not?] to admit certain types of evidence. ... It would have been more recent.” Judge Ohta goes into the back chamber area and comes back out in his robes.

The defendant is brought out in the other cases and there is a brief hearing. That case is continued until Dec. 5th.

In glancing over at the jury box, I note there’s something on each of the jury box seats. I stand up to take a better look. On every seat, there are these very large three-ring binders and a note pad.  I’ve never seen binders that huge. It’s evident Judge Ohta is in trial.

9:17 AM

DDA Garrett Dameron arrives and starts to set up his files.  I overhear snatches of Dameron’s conversation with Filipiak, regarding Gargiulo’s desire to fight the Sheriff's decision to revoke some of his pro-per privileges.

A deputy Sargent enters and goes over to chat with Judge Ohta’s court reporter. It looks like they are ready to get Gargiulo.

9:25 AM

DDA Daniel Akemon is not here. It’s just DDA Dameron. Gargiulo is brought out. He’s still completely clean shaven and there isn’t a trace of hair on his head. He’s wearing his black plastic framed glasses. He’s still in the orange jumpsuit with the white long-johns top underneath.  Gargiulo leans in to chat with investigator Filipiak. He appeares to walk normally.

Judge Ohta goes on the record in People v. Gargiulo. The court states that Mr. Gargiulo has filed an opposition to the people’s motion in limine to the Perkin’s Operation. It appears Gargiulo's motion is seeking to argue now, and not in limine. Judge Ohta still hasn’t been able to find a copy of the people’s motion to admit evidence from the Perkin’s Operation.

 DDA Dameron states they can make a copy and refile it.

Judge Ohta then thanks Gargiulo for filing his motion. “But, as I look at it, it would need to be handled at the time of trial.”  DDA Dameron added that once the court looks at the people’s motion, he believes the court will see it as a true motion in limine, to be heard by the trier of fact.

Gargiulo tells the court that what the DA is doing is [underhanded?]. Gargiulo goes onto say that holding the “cell op” [cell operation] violated so many of his rights. "The DA’s used undercover detective agents that lied on the stand and I have proof to back it up."  Gargiulo states that first there was mention of a video and then there was no video. Gargiulo states that these are violations that fall under a specific rule of law. I believe Gargiulo states that there is stuff that falls under, “Youngblood & Veretta.” I’m not positive I have the correct naming of the case Gargiulo is referencing. Gargiulo mentioned that these things happened a long time ago.

There is some discussion back and forth between Gargiulo and the court about the timing of the allegations that Gargiulo is alleging and what is the proper order, for these issues to be handled by the court. Gargiulo tells the court that he’s working his tail off and he’s not trying to slow the pace of the trial. 

Judge Ohta gives a Miranda example to Gargiulo to explain that, even though the Perkin’s Operation happened before the preliminary hearing, whether that evidence is admitted to trial would still be argued as a motion in limine.

The Miranda example Judge Ohta gives is, let’s say a defendant states his Miranda rights were violated and therefore statements he made should not be admitted at trial because the police violated his Miranda rights. That event happened long before the preliminary hearing yet it would still be argued as a motion in limine. Judge Ohta explains to Gargiulo, that “... in format, [it’s] sort of the same thing.”  Judge Ohta doesn’t see how this relates to a 995 motion.

Judge Ohta explains in more detail the sequence in time, which motions are argued when.

Gargiulo then explains what he feels are more violations, “They [DA’s? Police?] violated the remove order and misled the [preliminary hearing] judge.”  Gargiulo takes his right hand and slowly strokes the top of his shaved head from back to front. Gargiulo tells the court that this case is “... the complete opposite, ... so that’s why I’m doing it opposite.”

Gargiulo is claiming that the removal [removal from LA Co. Sheriff’s custody to El Monte Police custody] should never have happened. Gargiulo states he’s asking for a new preliminary hearing because of all the violations. 

The court tells Gargiulo that he doesn’t think he has to oppose the statements coming in. “Simply file a motion to dismiss the case [995] because they didn’t follow the law or rules of evidence [at the prelim].” Judge Ohta then goes onto explain, “What you filed, is not something I’m going to hear until the time of trial.”  He then states that once he reads the prosecution motion again, “I might do it, just to get some things done.” Then he adds, “If you intend to file 995 motion to dismiss, lets work towards that now.”  Judge Ohta reminds Gargiulo that when Mr. Lindner represented him, Lindner began to put together his 995 motion and he filed papers with me.

Gargiulo states that he has those, but that there are several errors in them. Gargiulo then tells the court that he’s asking for an ex parte hearing with the court [DA not present] with his attorney. Judge Ohta reminds him that he represents himself. Gargiulo then clarifies that to mean with the defense team. Gargiulo tells the court he doesn’t want the DA to hear pertinent facts revealed to the DA. I believe Gargiulo states that he doesn’t want these facts used against him. This all has to do with issues that Gargiulo has with his stand by counsel, Charles Lindner.

Judge Ohta is firm in his reply. “I don’t need that revealed to me. ... Your pro per privileges have been restricted. ... The difficulties were explained to you. ... That’s in your domain. ... I won’t get into that.”  

I believe Judge Ohta then adds that the court is in contact with Mr. Lindner and if Gargiulo decides to rescind his pro per status, Mr. Linder can be back on the case immediately.

Gargiulo asks the court if he is aware of the letter that the Sheriff’s Office wrote to the court and that they are unopposed to reinstatement of his pro per privileges.  Judge Ohta tells Gargiulo that he’s looked at it. He has it in front of him. Gargiulo insists that this letter is proof that the Sheriff’s are unopposed to Gargiulo having his privileges being restored. Gargiulo then rambles on about that there is a scam going on at the jail, and the FBI is involved.  The court responds that he is not involved in the decision to restore Gargiulo’s pro per privileges. 

Judge Ohta then tells Gargiulo that the letter does not say they are seeking lifting Gargiulo's pro per restrictions. “It says they understood my decision.”  Judge Ohta says he has a copy of the letter. He reads from it in open court. He explains to Gargiulo what the letter means. “This letter doesn’t say what you think it says.”

Gargiulo mentions that there are several higher ranking Sheriff’s that told him personally, that they are not opposed to reinstating all of his pro per privileges.

Gargiulo then tells the court that he was thinking about giving up his pro per status, but he’s not willing to get Mr. Lindner back.  So that’s why Gargiulo was requesting a separate [ex parte] hearing. The court responds, “Your request is denied.”

At some point, Gargiulo explains that he's not able to do anything without access to the law library, access to witnesses, etc.

Judge Ohta explains the sequence of events, and what must happen. The only way to get a different attorney is a Marsden hearing and facts are presented at a Marsden hearing.

Gargiulo then tells the court that he had a meeting with Lindner [two months? ago]. “He told me I deserve to die.” Gargiulo makes more claims about Lindner, things that Lindner said to him and the “several issues” that he has with Lindner.

The court tells Gargiulo that “Mr. Lindner is not here to defend himself against accusations made against him.”  The place to argue Marsden is Dept. 127. Judge Ohta tells Gargiulo, “What you are requesting is not legal.”  Judge Ohta patiently explains to Gargiulo how it must go. He must first give up his pro per status, then he can go to Dept. 127 to have a Marsden hearing himself.  Or, once the pro per status is rescinded, “If you have problems with him [Lindner] I will hear you out.”  Meaning, that Judge Ohta would also hear a Marsden motion.

General waiver time is explained to Gargiulo again. 

Gargiulo asks for another month to see if he can get things straightened out with the jail, to possibly petition the Sheriff’s Office to reinstate his pro per privileges. Judge Ohta comments, “Sounds like you have some things to address.”  Gargiulo responds, “Yes, I had a meeting with counsel with all the threats and things that occurred ...” He rambles on about something. I can’t follow it and Judge Ohta gets a puzzled expression on his face.

Gargiulo tells the court that he has things to try to work out with the Sheriff’s, to try to get all of his pro per privileges back. Gargiulo claims that the Sheriff’s are in violation of Code of Regulations, Title 15 [section?]. According to Gargiulo, a 90 day period is the limit that his pro per privileges can be rescinded. Gargiulo claims that under Title 15, 90 days is the maximum time that inmates can be held from their pro per privileges.

So Gargiulo needs some time to try to sort this out with the Sheriff’s Office.

The court asks for any input from the DA’s office. DDA Dameron states he has no objection, only that his concern is that they are back here in 30 days and they will be in the same place as before.  DDA Dameron asks that that the court have the defendant work on the 995 motion.

November 7th is selected for Gargiulo to return to court.

After everyone is packing up, Gargiulo hands to the bailiff a handwritten sheet of paper. Gargiulo is now speaking to the court about this paper. Judge Ohta asks Gargiulo, “You’re saying medical personnel say you need bottled water?”

Gargiulo tells the court he is having problems with his prostate. He’s having trouble urinating. Medical personnel told him not to drink the county water in the jail.  Judge Ohta tells Gargiulo that he would need to see something written from the medical personnel. Judge Ohta tells Gargiulo that he is not signing this order. The paper is given back to Gargiulo.

And that’s it.

It appears Gargiulo is coming to a realization how difficult it will be to represent himself without all of his pro per privileges. I will try to obtain a copy of the motion that Gargiulo filed. As soon as I do, I will update this story with links to the document.


Mel said...

Being somewhat familiar with the LA Sheriff's Dept, and Men's Central Jail, I can understand Mr. Gargiulo's frustration with the jail's apparent interference with his pro per status. Same with the medical issues that he claims. The medical section of MCJ may have good intentions, but the reality is the medical issues of inmates are often not addressed in a timely manner, or are ignored altogether. The LASD has historically been a poorly run organization.

Sprocket said...

Hi Mel,

I don't know if the LASD is a poorly run organization or not.

I don't know that I can agree with you that the Sheriff's have "interfered" with Gargiulo's pro per status.

When Gargiulo was searched before returning to the Men's Central Jail facility on April 18, a piece of metal was found inside his mouth.

The jail facility then held specific hearings to determine if he was guilty of having this contraband in his mouth. Those hearings have certain timelines as to when they must be held at the jail.

The item found in Gargiulo's mouth was described as a possible "handcuff key" or "shank."

Because this piece of metal was found on Gargiulo, this put his pro per PRIVILEGES in jeopardy because he then became a security risk and a potential threat to other pro per inmates using the jail law library.

From the court hearings that I attended, the Sheriff's took steps to protect other detainees with pro per status, who share usage of the jail's law library.

In court, Judge Ohta performed a review of the jails proceedings involving this incident. He found that the Sheriff's actions followed the law and he agreed with the Sheriff's conclusions and actions.

Gargiulo still has pro per status, he does get paper and pencils, but he no longer has access to the jail's law library and the phones in the law library. I agree that this will present challenges for Gargiulo to represent himself.

The court has no standing in setting security policy regarding specific detainees in its facility. I'm no expert, but I don't think that could be changed except by federal oversight.

For Gargiulo to get all of his pro per privileges reinstated, he needs to petition the Sheriff's Office, not the court. He may be able to petition on the federal court level; I don't know.

As far as the medical issues, I would not be surprised if you are correct.

Mel said...

Howdy, Mrs. Sprocket,
If the item was indeed a pocket clip from a ball point pen, then I understand the first disciplinary action against Mr. Gargiulo, as the metal piece could be used as a weapon or a handcuff key. But for the second action, denying the rights of other inmates, that is a stretch, and if Judge Ohta were being honest about it, he would agree. I like Judge Ohta; so far he seems to be fair-minded. Mr. Gargiulo may in fact be guilty, but he has been in Men's Central Jail for over eight years, and it would seem that the DA would be able to prove his case by now, despite Mr. Gargiulo's legal wrangling.
As for the LASD, I can only look to my own experiences as a jail deputy (now retired), and shake my head at the allegations (some now proven in Federal Court) about the corruption at all levels by more than a few working at MCJ.
As for the jail conditions, it would not require Federal intervention to address Mr. Gargiulo's issues. If the matter involves a county jail, a county judge can order pretty much anything he wants, within the law.
I would like to say that I enjoy your style of writing. It makes for interesting reading, and I thank you for your posts. Also, my best regards to Mr. Sprocket, and I hope he is doing well.

Sprocket said...

Thank you Mel.

Gargiulo was probably six to nine months away from his case going to trial when he petitioned the court for pro per status. Then the clock gets set back to zero.

That sixth amendment trumps quite a few things.

Wouldn't you agree Mel, that the court is probably mindful of appellate court reversal, for any decisions made in a pro per death penalty case?

Anonymous said...

I wouldn't turn my back on Gargiulo if he was wearing handcuffs.

David IN TN