Lonnie Franklin, Jr., Pretrial Hearing 6

Lonnie Franklin, Jr., in custody. Pool photo.

The previous post on this case can be found HERE.

UPDATE: 9/12 correct spelling of Daryn Dupree's first name
August 31, 2015
I’m on the 9th floor of the downtown Los Angeles Criminal Justice Center. Besides the cafeteria, it’s the floor that I’ve spent the most time on down here. I haven’t been to court in well over a month.

I’m waiting for Dept. 109 to open. I’m sorry I missed the last two hearings in the Lonnie Franklin, Jr. case. Fortunately, I’m almost completely over my lung congestion.

When I arrived, DDA Garrett Dameron was at the end of the hallway with a defense attorney. Both are waiting for Dept. 101, Judge Coen's courtroom to open.

There is also a hearing in the Albert Harutyunyan (aka Alberd Tersargynan) case in Dept. 109. Harutyunyan is charged with four counts of murder. I believe the DA’s office is seeking the death penalty in this case. DDA Daniel Akemon is prosecuting. Harutyunyan is on his second set of lawyers. I don’t know which hearing will be first.

DDA Akemon is here and my eyes are drawn to his shimmering, baby blue tie. With him are two LAPD homicide detectives, Greg Stearns, who worked on the Lazarus case, and Daniel Myers. Myers worked the Ka Pasasouk case and also testified in the Lazarus case. They go off to towards the other end of the hall to chat privately.

DDA Marguerite Rizzo arrives. She's wearing a sharp red jacket with a camel toned skirt. I've always been envious of Marguerite's trim figure. She takes a seat on a bench alongside her investigating officer, Daryn Dupree.

People Magazine investigative reporter Christine Pelisek arrives. 

There is a video cameraman here, but he's waiting for Dept. 101's current case in trial, the Tobias Dustin Summer case. I believe the victim will testify but since they are underage, no camera can record their image on the stand. Harutyunyan's defense team, Pete Waimrin and Gregory Apt arrive. DDA Akemon greets them and now they go off to chat privately.

8:31 AM
Dept. 109 opens and a few of the victim's relatives in the Franklin case head inside. After a little while, I head inside also.

8:38 AM
Inside Dept. 109. DDA Akemon is at the counsel table.  Defense attorney Louisa Pentsanti arrives. She's wearing a white jacket over a form fitting black dress.

In the Franklin case, the victim’s families start to enter the courtroom and greet the few people already here. Harutyunyan’s defense team goes back to the custody area to speak to their client. DDA Rizzo greets the victim’s families who are already here.

From the back row of the courtroom I briefly see Judge Kennedy pass by the open doorway. She’s wearing a black and gray print jacket. She comes out to greet her bailiff.  She’s asking the bailiff about a court clerk and a court reporter. Both desks are empty. They chat at the clerks counter for a bit.

Detective’s Stearns & Myers are in the gallery, first row behind the bailiff’s cubicle. Defense attorney Seymour Amster arrives.

8:44 AM
I wonder where DDA Beth Silverman is. Amster and DDA Akemon chat at the counsel table.

8:46 AM
The friendly court clerk from Judge Perry’s court comes in to sit in for the missing court clerk. I adore Judge Perry’s clerk. She was so nice to everyone in the media during the Lazarus trial. A few years ago, I got to have a nice chat with her while waiting for my friend Matthew. A court reporter I remember from the first Spector trial is sitting in for the missing court reporter.

Amster and DDA Rizzo appear to have a friendly chat about (I believe) some documents the prosecution is requesting.

It looks like the Harutyunyan case will go first. There is an Armenian interpreter for the defendant.

DDA Silverman arrives. She's wearing a black skirt and matching short sleeved suit jacket. I glance down to her feet. I can't wear heels, ever since I broke my left ankle in four places, but I always notice Silverman's shoes, since she has a great collection. On Beth's feet are black patent-leather, open toed high-heels with black bows. She stops to greet the victim’s families and ask how everyone is doing.

Harutyunyan is brought out. He’s a small, diminutive man with a gray and white beard. The court goes on the record in the Harutyunyan case. Defense attorneys Greg Apt and Pete Waimwrin from the Alternate Public Defender’s Office for the defendant. We learn that the defendant wants a Marsden hearing. This is at least the second Marsden hearing for Harutyunyan.

Judge Kennedy clears the courtroom. It’s like, Michael Gargiulo deja vous all over again. Everyone piles out into the hallway. DDA Akemon and his detectives, and everyone related to the Franklin case.

I find an empty bench seat and observe the little groups that form together.  Prosecution teams and their detectives, the Franklin defense team, support staff with the District Attorney’s Office and then the victim’s family members, who have come to know each other from attending the pretrial hearings.  Interspersed among all these groups are a few jurors on benches waiting to be called to their courtrooms.

Seymour Amster is wandering the hallway looking at his cell phone, then comes back over to his team, who are standing to my right. The jurors for Dept. 101 are called and the little groups seem to huddle closer.

9:14 AM
There are late arrivals for the Franklin case. They greet other family members already here.

9:37 AM
An older gentleman who was standing with the Franklin defense team walks over to where DDA Silverman is sitting and hands her a document. DDA Silverman signs for the document. Beth and Marguerite go over the document in detail.

9:53 AM
The Marsden hearing is over and I’m back inside Dept. 109.  Judge Kennedy is on the bench and making a ruling in the Marsden case. The hearing, which was transcribed by the court reporter, would be put under seal and not to be disclosed.  Judge Kennedy asks the parties about coming back for another hearing in about a month. The next court date in this case will be October 2, and the case calendar will be set at zero of 90.

Judge Kennedy asks if defendant waives time. The interpreter asks, and then answers for the defendant. “Yes.”  Judge Kennedy asks, “Counsel join?” Judge Kennedy then addresses the defendant. “I’m going to do what I told you I was going to do and your attorney’s are going to prepare [a document] for me. ... I hope you feel better.”

DDA Akemon documents the pages of discovery that are turned over, and that’s it for this case.  Defense attorney Apt asks about the document. Judge Kennedy states, “I don’t have anything to sign yet. ... I need you to prepare something.” Mr. Waimrim goes over to the clerk’s desk along with DDA Akemon. The Armenian interpreter leaves.

9:56 AM
We are waiting for things to start for Franklin.

The clerk is busy at her desk with Akemon and the two defense attorneys. Judge Kennedy is waiting on the bench. I think the collection of figurines on Judge Kennedy's bench appears to have gotten bigger since last year. The  abstract painting that looks like several "V" lines is still hanging on the wall behind her bench.

The Franklin case is finally called.

Mr. Amster addresses the court. “At the present time, as of this morning we turned over all report from all experts with the exception of Sorenson. She is prepared to represent to the court, there are three, categories of evidence that still has to be processed. ... Two of [the] three will be done this week and the third by September 11.”

The court asks, “When would they [prosecution] have reports?”

Seymour responds, “As soon as I get this stuff, It should be expeditious.”

Seymour continues. As soon as I get it I will get it to them as fast as I can. I can’t forward it [in an email]. It’s too big. It’s on CD. “They will have everything by September 14, ... Thirty days before trial. ... Sorenson will turn it into a CD or and ... [I’ll] make sure they get it. ... The two reports on the evidence that we will get this week ... I’ll have Dr. Sowers(? sp?) to have it within a week. ... And the second, the minute [I?] gets it, he does it.”

Again, September 14th.

The court asks the people if they acknowledge what the defense has turned over.

The people respond, “I don’t think so your honor.  We’re entitled to the raw data.”

The people go over with the court, the document that was given to them earlier in the hallway. They document with the court, how what they’ve received is incomplete. There are several experts, where they still have not received anything at all. 

I don’t get all the names that the people mention, of the potential defense expert witnesses, where the people have not received the reports.

DDA Sliverman tells the court, "A psychiatrist. we don’t have any of the data that went into his report
 which we are entitled to ... Same is true for Mr. Krout (sp?). ... received [Metallurgical?] effects expert and we received a, .. I’d like to say it’s a one line, hand lined piece of paper that constitutes a report fro Mr. Munos."

DDA Sliverman states she agrees with the general [parameters?] in the one line statement and the people also agree on the exception of the drug [?] bearing any [?]


Amster interrupts DDA Sliverman and asks, “Did you get the second page?” 


The court asks the people, “Did you get the second page?” DDA Silverman responds, “I wasn’t finished speaking.”

The second page and what it entails is discussed.

Amster interrupts again. “That report  is about the rebuttal. The second page is the summary of the phone conversation and mine.” The have in substance, the same thing I have.

The court asks, “Just so I can understand. ...You anticipate that the prosecution is going to present the drug recognition expert?”

Amster answers. "I believe at least one witness [?] these events under a drug, a controlled substance. We have to determine what she was under the influence of and how much. And then I bring in a drug expert to talk about it."

The court clarifies. "So being under the influence of a specific drug and being able to recall?" Amster responds. "And she’s someone who had a habit of drugs"

Judge Kennedy states, "And all of these are under 402." [402 meaning, that there will be a hearing, outside the presence of the jury, to determine if this witness can testify or not.]

DDA Sliverman asks. "Is there any reports, notes, in addition to this?" Amster responds. "I don’t think there’s anything in addition to this from Mr. Munos (sp?). ... I wanted to get the reports to the other side by August 31. ... The vast majority of these reports came in last night. This has not been the easiest situation , I wish it would be an easier situation with my experts."

DDA Silverman informs the court the people have not received [Mr. Paul, Schmitz, Tobin, George Reese, Gibson] (Sp?)

The court clarifies that what they are talking about are defense experts that may testify.

Amster adds. "With exception of Mr. Reese. ... Ibelieve we sent the 911 report of Mr. Gibson [already]. I thought we delivered that." DDA Sliverman tells the court. "We’ve received no notes, [reports?] from any of these people."

Amster replies. "One step at a time. The report from Mr. Gibson (sp?), we gave. ... As far as the other experts at this point, we don’t ...  [Mr. Paul, Mr. Jones, Mr. Reese Mr. Gibson?]  at this point, we don’t anticipate [calling them]."

Mr. Amster adds a bit more that I miss.

DDA Silverman asks. “Which individuals are those?” Amster answers, “Mr. Schmidt is off the list.”  DDA Sliverman asks another question. “How about Mr. Jones?”

I believe Amster responds that at this point, they don’t plan on calling him. DDA Sliverman asks, “Is there any report or notes that he’s created so far.?” Amster responds, “There are notes and reports that he’s made, but it depends on what the prosecution is going to present.”

DDA Sliverman tells the court, “The defense knows what the people’s case is. We’ve turned over 26,000 pages of documents.” Amster counters back, “I don’t agree, but I would be willing for this court to make a ruling.”

Judge Kennedy asks, “Based on the 26,000 pages that you have, you don’t anticipate calling this person?”

I believe the people continue. However, if they turn over ... they didn’t turn over until later, then we have a hearing demonstrating that fact, ...

The court asks, “And now this witness becomes relevant that you didn’t have at trial?” Amster responds, “At this point, unless something new occurs.”

DDA Silverman asks about a Mr. Paul. Amster responds, “Mr. Paul has not prepared a report. And again, it’s only if there’s a problem with an expert coming on the stand. I may bring him in on sur-rebuttal.”

“On what issue?” Judge Kennedy asks.  Amster answers, “Ballistics.”

DDA Silverman asks about defense witness George Reese. Amster replies, “At this point, [we’re] not anticipating [he will] get on the stand. ... I have a report I’m not disclosing. ... If something new, I will have to make the same showing as Mr. Schultz.”

DDA Silverman asks, “A report from Tim Williams that talks about improper handling but no specifics.”  Amster answers, “I’m sure there are notes to that effect.”

DDA Silverman clarifies,”We are still waiting for that.” Amster responds, “I’m not so sure I agree with that but I will try to get a hold with Mr. Williams.”

DDA Silverman adds, “There are a number of civilians, over 100, what we received from counsel. ... [We] did not receive the specifics of conversations. ... [There's] the same type of summary for each and every witness.”  Amster insists that they [have? don't have?] a witness statement from each and ever person.

The court asks the defense, “Does that mean that collection of people, but, that you don’t anticipate calling [them]because you haven’t take statement from them?”

Amster doesn’t agree with the court’s assessment. “That’s not what I’m saying. ... The vast number of people are on the movie. [HBO documentary.] We have not found them. We have not taken a statement from them. ... We have not [taken] statements. ... Some of them, they’ve turned over statements to us. ... We don’t have any statements, but then we’ve put them in the potential of witness.”

DDA Silverman, tells the court that they will have to build in extra time for this trial, to have 402’s for each of these witnesses. The court agrees, “We’re going to have many 402’s." DDA Sliverman asks about another witness, a Mr. Crawley (sp?).

This is the third party culpability motion that needs to be ruled on. Judge Kennedy tells the parties, “We need to specifically ... We need to have that handled on another date.”

Amster responds on this issue. “We are not presenting third party culpability in the guilt phase. Third party culpability will be lingering doubt in the penalty phase.”

DDA Silverman informs the court, “We’ve researched the law and the same law applies.”

DDA Silverman also asks for the test results and raw data from the clinic neuro-psychologist. The court asks the defense if they will have that ready on the 14th as well.  Then there is a bit of back and forth discussion about when to return and what will be decided on what date.  Judge Kennedy finally rules that they will return on September 9 four outstanding defense discovery and also on September 14 for argument on the third party culpability motion.

As a last issue, the court informs parties, “If there are any other briefs that you want me to consider get them in as soon as possible.”

DDA Rizzo has an issue about a protective order for an individual [I’ve not included the name].

And that’s it September 9 it is. This will create a conflict with the Gargiulo case. I still haven't decided which hearing to go to.

Commentary
There is a reason why the court and the prosecution stated there would be many 402 hearings. Although the defense was supposed to turn over all their discovery by today, they have not done so. From what I gathered today, there may be witnesses the defense decides to call at the last minute, depending on what the prosecution experts say. If the defense did not turn over discovery with that witness before trial, and during the trial decide to call them during their case, then the prosecution has the right to have a hearing, outside the presence of the jury to question the witness. The court then decides if the witness can testify before the jury.

The reason the court does not, at this time, bar these witnesses from testifying because the discovery was not turned over to the prosecution 30 days before trial, is the appellate court. It's pretty much guaranteed that a guilty verdict would be turned over on appeal if the court barred a witness because of a discovery violation.

I remember a 402 hearing in this very courtroom two years ago. It was a last minute defense witness right before the start of the Kelly Soo Park trial. The hand written, defense investigator's interview notes (on yellow lined paper) of this witness were turned over to the prosecution on a Friday, when the trial was to start on Monday. 

The next post on this case can be found HERE.