Friday, June 26, 2015

Michael Gargiulo Case: Pretrial Hearing 28

Michael Gargiulo, in custody, 2008

June 12, 2015
8:18 AM
On the 9th floor.  I wave to Chris Nicely, who may be here for Gargiulo or another case hearing.

DDA Marguerite Rizzo arrives on the floor. She greets a suited man sitting on one of the benches.  DDA Rizzo is co-prosecutor on the Joshua Woodward case and on the Lonnie Franklin, Jr., aka "The Grim Sleeper" trial.  The Franklin trial is scheduled to start in early September.

8:31 AM
I see DDA’a Akemon and Garrett Dameron in the center of the hallway. They are chatting with Chris Nicely.

Defense attorney Janet Levine arrives on the 9th floor. There is a hearing in Dept. 103 for the Joshua Woodward case. Levine is Woodward's lead defense attorney. Her cross examination of the prosecution witnesses in the prelim was stellar work.

I don’t see where DDA Akemon and Dameron went. They must have dropped in on another courtroom.

9:10 AM
People Magazine investigative reporter, Christine Pelisek is here. She checks on the Marsden hearing with the court. It’s finished and Lindner is still the attorney of record.

9:35 AM
Inside Dept. 108. DDA Akemon and DDA Dameron are in the well. Judge Ohta asks the bailiff to get Mr. Gargiulo. DDA Dameron informs the court that Mr. Lindner hasn’t arrived yet. Judge Ohta appears to pause.

9:37 AM
Defense attorney Charles Lindner arrives with his son Abe Lindner, who is also his paralegal.

Mr. Lindner asks Judge Ohta how his day is going. Lindner and Judge Ohta chat basketball. The team “Caviller’s” is mentioned.  

Over on the clerk’s counter, the tin of Red Vines is full.  DDA Akemon and Abe Lindner chat. Then Abe and DDA Dameron shake hands and chat. Charles Lindner continues to chat with Judge Ohta a bit before moving his wheelchair over to DDA Akemon.

The bailiff sets up the chairs at the defense table. Now the bailiff brings out Gargiulo. Gargiulo has a few papers with him.

9:44 AM
The court goes on the record and the parties state their appearances. The court informs counsel the Marsden was denied. The issue now is pretrial and the 995 motion. The prosecution states they are still working on their response.

Judge Ohta clarifies with the people, “You did not put on the prelim?” Lindner informs the court, “That was four generations of DA’s ago. The prosecution states they will have a reply ready in another month.

Then Gargiulo speaks up. He tells the court he wants to withdrawal his general time waiver and go to trial in 60 days and not have any other continuances to delay. 

Judge Ohta asks Gargiulo if he’s spoken to his attorney about this. Gargiulo replies, No. I’m not speaking to him.”

Judge Ohta tells Gargiulo, “We can walk through this. ... Mr. Gargiulo, you seem upset.” Gargiulo replies, “No, your honor.” Judge Ohta replies, I’ve seen you several times now [over the past few weeks]. ... “We can’t go into the Marsden. ... That’s sealed.”

Judge Ohta continues in a slow, deliberate fashion. He tells Gargiulo, “The issue of going to trial hinges on readiness of the attorney for trial.” Judge Ohta explains the federal law and the state law to Gargiulo. Gargiulo has a statutory right under California Penal Code 1382 to go to trial in 60 days. However, that’s not as important as his right to best representation of counsel under the 6th Amendment. The federal constitution is a considered [by the courts] to be a more important right, and takes precedence. Judge Ohta tells Gargiulo, “I know you want to push this, and whether he [Lindner] is ready or not is a decision he has to make.”

There are several motions by the defense that need to be filed.

Judge Ohta continues addressing Gargiulo. “I know you’d like to take back your right ... but it’s not as easy as that. ... I’m just laying out the legal landscape.”

Gargiulo responds, “He’s had plenty of time to prepare the case. ... I’ve been now seven years wrongfully accused.”

Judge Ohta reminds Gargiulo, “When you were pro per, you did not assert  your right to a speedy trial. .... If you want to do this ... and you can .... and you appear to be angry .... and appear to be retaliating because of what happened in the Marsden hearing.”

Judge Ohta adds, “I could be completely wrong about that ... but .... I would like you to speak to your attorney. ... He [Lindner] has filed his 995 motion. ... It has not been litigated yet. ... It’s putting Mr. Lindner in a very difficult position. It seems retaliatory.”

Gargiulo tells the court, “I object to that decision. That is not necessary.” The court replies, “It is necessary.” Gargiulo is taken back into custody. DDA Akemon and Lindner make a request to the court. They ask if they can go back into the jury room to chat privately. The judge gives the okay.

Judge Ohta then calls his second case, continued from June 9. It’s the problem defendant who wanted a Faretta hearing. It appears this defendant may have changed his mind about that. They need to hash out further scheduling for the case.

10:10 AM
We wait for the other case. The defendant is brought out. He is put in a chair right next to the bailiff’s desk. There are two women sitting in the gallery right behind that chair next to the bailiff. The defendant is allowed to speak to these two women. He appears happy to see them.

10:20 AM
Counsel come out of the jury room. Lindner asks the court if his investigator [Chris Nicely] and paralegal [Abe Lindner] can come back with him into the custody area to speak to Gargiulo.  Judge Ohta is fine with that. They all go back into the custody area to speak to Gargiulo.

Inside the courtroom, the bailiff is sitting in a chair right across from the defendant who is still chatting with the two women in the gallery. Christine Pelesik and I chat with the bailiff as to what the custody area looks like. I wonder if there are several cells back there. The bailiff informs us there is a single cell and there is a room where defendants can speak privately with their attorneys.

We learn that the deputies cannot just put any two defendant’s in the holding area together. It’s not the color of jumpsuit that determines who can be put together. They have to go by what the wristband says. All defendants have a wristband on them 24/7. Apparently, this wrist band tells them about the defendant. For example, they can put several defendant’s in a holding cell together, if they are all classified the same [for example, general population] and all speak the same language.

10:55 AM
Charles Lindner and Abe exit the jury room with their investigator. I hear Lindner say to Mr. Akemon that they will have to do an evidentiary 402 hearing on the 352 issue.

Counsel discuss a return date, possibly five weeks from now. Judge Ohta’s clerk informs counsel that Judge Ohta will not be in Dept. 108 for the months of July and August. It’s my understanding that Judge Ohta has been invited to sit on the California Court of Appeals during that time.

DDA Dameron goes over to the Red Vines tin. I believe Lindner throws out a date of the first week in August.

11:00 AM
Judge Ohta takes the bench, an we are back on the record in People v. Gargiulo. Judge Ohta asks the defense if they had a chance to speak to Mr. Gargiulo. Lindner informs the court that they all spoke to Mr. Gargiulo. Mr. Lindner spoke to him. His paralegal Abe spoke to him. The private investigator spoke to him. All during the conference, Mr. Gargiulo didn’t speak.

So Mr. Lindner will need to show the court, how much time he needs before he will be ready for trial. I believe it’s Mr. Lindner who tells the court that the prosecution and defense are on the same page regarding what needs to be done. There are three big motions that need to be litigated before they can get closer to trial.

Judge Ohta addresses Mr. Gargiulo. “You’re not required to speak to me on the record. ... You have counsel, .... but you can.” Gargiulo responds, “...[I] would like to withdrawal the general time waiver and set trial date in 60 days.”  Judge Ohta replies, “While you may want to, your attorney may not be ready.” 

Gargiulo tells the court, “I completely object to him being ready. ... He’s had plenty of time. ... I’m ready to go to trial. I’ve been wrongfully accused ... Anything other than [their? that?] date ... I know the law. I’ve [studied?} ... [I’ve gone to trade school.] ... I’m [an] educated individual, and that’s my right. .... He’s had ample time to prepare a defense ... and ... my right to go to trial.”

Judge Ohta tells Gargiulo, “You have an attorney who says he’s not ready.” I believe the court adds, “The conflict is in you own mind.” Judge Ohta cites a case [People v. Kowalsky?] and states that the defendant has a right to an effective assistance of counsel. ... And counsel must be prepared and effective. ... If the time period is violated, the time period dismissed. ... they do not carry weight..”

Judge Ohta methodically details out why the California statute 1382 is superseded by the federal sixth amendment right, if the attorney is not ready.  Judge Ohta continues educating Mr. Gargiulo as to what will happen. “You can assert your right. Mr. Lindner will then file a motion to continue and I will [have a conversation with him] as to how much time [he needs] and I will grant it.”

Gargiulo tells the court that his attorney is “... playing with my life and milking the system.” Judge Ohta responds, “you attribute all the delay to Mr. Lindner ... which I don’t see is wholly accurate. .... I’m just saying the parameters of law and how it will play out.”

Counsel then lay out for the court what they were discussing in private. The defense met with the DA’s about scheduling. They set out in detail, the next three major motions. They will be complex and may require evidentiary hearings. Mr. Lindner tells the court that they explained to Mr. Gargiulo what they are going to do and why, and why these motions will take longer than 60 days.

Lindner states they tried to explain to Mr. Gagriulo it was better to have an attorney totally prepared. Defense counsel states they told Gargiulo that what would happen is, [he would simply be taken back to court to do it again?].

Judge Ohta comments on the amount of discovery that he saw change hands. DDA Akemon informs the court that they just turned over to the defense, pages numbered 29,459 to 29,574.  Lindner states [in addition] there is also approximately 50 hours of audio recording. DDA Akemon states that’s a fair estimate of the number of hours of audio.

Lindner asks DDA Akemon if they have all the transcripts of the interviews with Gargiulo during the Perkin’s Operation at the Downey jail.

The only one [DDA Akemon] cannot find is the Downey investigation one. Lindner replies that the Downey investigation is not relevant to this case. 

Judge Ohta adds, “When Mr. Gargiulo represented himself, the people set a timeline to move towards trial. ...[they had] set a tentative date for trial. .... I recall, there being an idea that it would be sometime in the future .... [that timeline?] would show that it would not be 60 days from today’s date.”

Judge Ohta continues, “It just seems odd to me that Mr. Gargiulo is pushing towards trial. .... [It] just seems to me that Mr. Gargiulo is reacting [to the Marsden decision]. ... There’s a lot of pages that the defendant had seen in discovery.” Judge Ohta addresses Gargiulo directly. “You represented yourself for a while and you’ve seen it [discovery]. ... What I will not be seeing in my court is gamesmanship. ... For the 60 days ... you are, to some degree, pushing Mr. Lindner .... to move faster. ... In some cases [that might be fine].  ... [But] this is a case that has huge implications for you. .... You need to be [aware of them?]”

Gargiulo responds to the court, “I’ve pushed counsel for years and years.” Judge Ohta responds, “He [Lindner] said there are four motions that he [needs to litigate].” Gargiulo replies, “Yes, but he’s had time to do that.”

The court goes onto explain the problems this latest move by Gargiulo is up against. “I have a death penalty case, similar in scope to this case that will take four months. It starts in September. ... I’m not sure the other case will be ready in September but the parties are trying.”  Judge Ohta then addresses counsel. “Realistically, when do you think the case might go to trial?” DDA Akemon responds, “The prosecution is ready.” The question is, when can Mr. Lindner be ready. I believe DDA Akemon tells the court that counsel talked about Lindner possibly being ready in January. 

Lindner tells the court that 100% of his time is spent on this case and only one other case. 90% of his time is being spent on this case. Lindner thought that in light of the discovery and motions, they could possibly [argued?] mid to late November and the “in limine” motions in December. However, getting a death qualified jury in December is near impossible. Judge Ohta agrees. It’s impossible.  Lindner tells the court he could be ready by the first week in January.

The motions that have to be litigated are discussed. Judge Ohta asks, “How much time will those require?” Counsel states, at least two weeks. One will require a 402 hearing.

The reason Judge Ohta asks, is it could take him some time, to review the motions and be comfortable with the law on the issues.

Lindner outlines for the court the motions he plans to file. One motion is to sever the Ashley Ellerin case from the other victims. The defense position is to sever Ellerin because it’s a weak case, underpinned by Bruno and Murphy. Lindner explains his argument in brief. The court will have to review the relevant transcripts before ruling.

The second defense motion is 352. Judge Johnson, in the prelim found 1101b [evidence], that common plan, scheme ... identity was linked to Tricia Paccacio. We will be making a motion that this alleged murder .. to bring it into this case as an uncharged act, ... would violate his due process of law.  Lindner adds something about this relating to suspects Bruno and Ellerin, because Murphy stands on it’s own.

The third motion is a scientific evidence motion. If the court decides Paccacio is to be admitted, then the defense needs the samples sent to their own labs for testing.

DDA Akemon informs the court that all evidence on Piccacio is held in Illinois. He [has?] spoken to Illinois about getting the evidence sent here. They need to litigate this 1101b motion before [other motions] because of the time pressure and how long it will take to get that evidence in California for the defense to test.

Judge Ohta informs counsel that once he starts his four-month death case [Johnson & Allen] he won’t be doing anything else but that case. He also informs counsel that he is not available in July or August. It’s my understanding that Judge Ohta has been asked to sit on the California Courts of Appeals for two months.

Judge Ohta tells parties, that the law requires that 1101b motions need to be held before the trial court, unless both counsel waive that requirement. [It doesn't appear  counsel are not agreeable to that.]

The idea would be that after the [Johnson & Allen] case, the court immediately take up the 1101b motion, then handle the other motions. Lindner states he has a number of Kelly Frye motions. Lindner adds, that in respect to Mr. Gargiulo’s statements,[during] the Perkin’s motion. There is a separate issue in Perkin’s, whether the defendant’s statement were voluntary as to his [Sixth?] amendment rights. Lindner will need to reach back to [that?] incarceration and whether it related to coercion.

Judge Ohta comments, “Listening to you and seeing that there is no way that all of this can be done in 60 days.” The court asks if all the parties are available on Monday [June 15]. All counsel are available on Monday. The reason Judge Ohta says he says that, is the 1382, relates to a general time waiver, [paragraph 2 sub a]. When the defendant enters a general waiver, they set forth a [continued? conditional?] trial date. If the defendant later withdrawals .... So it requires a proper notice to all parties.

Judge Ohat states, “Mr. Gargiulo said this is what he wishes to do.”  Lindner asks the court if he can have the weekend to prepare his motion to go beyond the 60 days.

Judge Ohta replies, “First, he’s made his request. I’ve not withdrawn the general time waiver.” Judge Ohta asks Gargiulo, “Do you have any questions on the record, regarding future dates that might happen?”

Gargiulo tells the court, “I object to all of that. I want to go to trial in 60 days ... [there’s more that I miss].”

Judge Ohta responds, “So you do not want to be reasonable?” Gargiulo responds, "I'm being as reasonable as the law allows me to be.” [It’s not in my notes, but I believe at some point, Gargiulo tells the court that he’s read the law.]

Judge Ohta tells Gargiulo that, “... you need to read original law sources and not secondary sources [interpreting the law]. ... In any event, I’m giving you the weekend to think about this ... then we will uptake that matter on that date. .. On that date and move forward from there.

Mr. Lindner asks the court if it’s possible for the court reporter to email a copy of [today’s] transcript to the defense and people. Judge Ohta asks the parties to give their email and he will see if she’s able to do that.

DDA Akemon brings up to the court the logistics of getting the DNA from Illinois. It could take up to 90 days. He asks if the defense is using an expert, and possibly on Monday, address who the defense expert might be.

They may have to go forward with testing, before the motion is even decided. Judge Ohta understands the logic.  Lindner brings up the chain of custody for the DNA and the people’s need to show chain of custody.  They will work it out. Defense will need to go to Dept. 123 for the added financial aspects of the case, to appoint a lab. Lindner states that they have an expert. 

Judge Ohta addresses Gargiulo, “Mr. Gargiulo, It’s okay that you are imposing your will. You have right and a right to [?] trial ... but ... you’re forcing everyone to go above and beyond....”

Gargiulo states he’s pushing his trial and all of the [delays?] ... I believe Judge Ohta warns him about an issue, [consequences?] of pushing this forward so quickly. [You cant’] then later turn around and then ask for a continuance.]

Gargiulo replies, “I’m not worried about that. I’ve been ready for trial since the prelim.” He mentions something about the [court system?] playing games.

Judge Ohta replies, “I don’t play games and I’m not saying you are. I’m just warning you there are consequences....”

Mr. Lindner tells the court,  now that Gargiulo made his request, he is having to work on his 1382 motion and not the case. “He is in effect preventing me from preparing for trial," Lindner explains.

I believe DDA Dameron states the 995 motion is less pressing; the 1101b motion is more pressing.

And that’s it until June 15.